Karl Loewenstein
Encyclopedia
Karl Loewenstein was a German
philosopher
and political scientist
, regarded as one of the prominent figures of Constitutional law
in the twentieth century.
His research and investigations into the deep typology of the different constitutions have had some impact on the Western constitutional thought. He studied in his native city of Munich
(Bavaria
), where he got a doctor's degree in Public law
and Political science
.
When Adolf Hitler
's Nazi Party took power in 1933, he exiled in the United States
, country where he would carry out most of his doctrine work and writings.
, as shown in the most important book he wrote, “Theory of the Constitution”.
, as long as the (historical) reality of the social group it will be imposed upon. This is what he calls “ontological classification”.
Analytically, Loewenstein considers three different kinds of constitutions:
On the other hand, Loewenstein discarded the idea of trying to devise an “perfect theoretical constitution”, instead claiming that “an ideal constitution has never existed, and will never exist”.
Most present-day parliamentary republic
s and constitutional monarchies
(sometimes called “pseudo-monarchies” in political science
) republics fall into this group. Not always nominal presidential republics, like the Latin American ones, fall into this category, although the USA is a huge exception to this rule.
According to Loewenstein, this classification not only has to be made looking to the laws that regulate those institutions, but also to the political practices actually observed, because the mere existence of a constitution is not enough to tell whether a certain governments is a democratic or an authoritarian one.
- which is a sort of “sacred dogma” for the constitutional theory and practice of liberal democracies
.
However, he presented a new tripartite division of power into (three) functions.
The most efficient mechanism to divide power and to control the national political decisions is to distribute the main government functions into different “departments”, and do the same with their subordinate equivalents in the state, provincial or regional level.
Power distribution means that the (usually three main) different administrative departments is like a watertight compartments that mutually control and limit the otherwise potentially expansive sphere of influence of the others. In the modern parliamentary
and presidential republics this is traditionally done through counterweights usually referred to as “checks and balances”. Loewenstein considers that this last function is the most important in his views about the tripartite division of the political power, because if it didn't exist the other two would automatically fall apart, as even the reach and implications of the national political decisions couldn't be determined or estimated.
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
philosopher
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
and political scientist
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
, regarded as one of the prominent figures of Constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
in the twentieth century.
His research and investigations into the deep typology of the different constitutions have had some impact on the Western constitutional thought. He studied in his native city of Munich
Munich
Munich The city's motto is "" . Before 2006, it was "Weltstadt mit Herz" . Its native name, , is derived from the Old High German Munichen, meaning "by the monks' place". The city's name derives from the monks of the Benedictine order who founded the city; hence the monk depicted on the city's coat...
(Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
), where he got a doctor's degree in Public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
and Political science
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
.
When Adolf Hitler
Adolf Hitler
Adolf Hitler was an Austrian-born German politician and the leader of the National Socialist German Workers Party , commonly referred to as the Nazi Party). He was Chancellor of Germany from 1933 to 1945, and head of state from 1934 to 1945...
's Nazi Party took power in 1933, he exiled in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, country where he would carry out most of his doctrine work and writings.
His philosophical and political views
Loewenstein has a clear leaning towards liberal democracyLiberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
, as shown in the most important book he wrote, “Theory of the Constitution”.
Original and derived constitutions
- Original constitutions: Their contents have been truly innovating for the history of constitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
within a particular country, or the ones that inaugurate a new doctrine or political spirit. They introduce institutions or political solutions that have not been tested before in a particular territory. Among them are the following ones:- The 1787 United States ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. - The 1791 and 1793 FrenchConstitution of FranceThe current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
and Napoleonic constitutions. - The 1831 Belgian Constitution.
- The GermanGermanyGermany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
1919 Constitution, under the Weimar RepublicWeimar RepublicThe Weimar Republic is the name given by historians to the parliamentary republic established in 1919 in Germany to replace the imperial form of government...
(1919–1933). - The 1918 and 1924 SovietSoviet UnionThe Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
socialist (communist) constitutions.
- The 1787 United States Constitution
- Derived constitutions: They follow the basic fundamental traits left by the original constitutional convention. Naturally, most present-day constitutions worldwide are derived ones. But he alleges that some post World War II European constitutions (such as the 1949 West GermanWest GermanyWest Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
one) are partially derived.
Ideological-programatic and utilitarian constitutions
- Ideological-programatic constitutions: They convey an ideological burden in their articles, and they mean to show that the new State being constituted will defend some sort of “creed”. Among them there are the first constitutions born during the European liberalLiberalismLiberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
revolutions tinged with that ideology (like the 1791 FrenchFranceThe French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
constitution, the 1812 SpaniardSpainSpain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
one, or the 1831 BelgianBelgiumBelgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
one). Also, the fascism and socialistSocialist stateA socialist state generally refers to any state constitutionally dedicated to the construction of a socialist society. It is closely related to the political strategy of "state socialism", a set of ideologies and policies that believe a socialist economy can be established through government...
(MarxistMarxismMarxism is an economic and sociopolitical worldview and method of socioeconomic inquiry that centers upon a materialist interpretation of history, a dialectical view of social change, and an analysis and critique of the development of capitalism. Marxism was pioneered in the early to mid 19th...
) constitutions fall into this category. - Utilitarian constitutions: They present, specially in their organic part, the structural and functional organization of the State's institutions. Although they have an ideological background, it is diluted within their text.
Ontological classification
Loewenstein states that there are some several types of Constitutions, but a true constitution is one that, besides containing essential guarantees and an outline about the organization of the supreme political institutions of a country, also incarnates the deepest values of liberal democracyLiberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
, as long as the (historical) reality of the social group it will be imposed upon. This is what he calls “ontological classification”.
- Ontological classification: Pays attention to the real effectiveness of the constitutional text and the way in which it is assimilated by the social body. Loewenstein draws a distinction among:
Analytically, Loewenstein considers three different kinds of constitutions:
- Normative constitution: It is really enforced, felt or “lived” by both the political rulers and the citizens in general. It is an effective constitution that ultimately controls or governs the political processes within a particular country and the democraticDemocracyDemocracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
or republican principles it claims to uphold clearly corresponds to the real political practice. The (Federal) ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
of the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
is an example of these virtuous and “alive” ones, which are “lived” by the societies ruled by it. Loewenstein uses the analogyAnalogyAnalogy is a cognitive process of transferring information or meaning from a particular subject to another particular subject , and a linguistic expression corresponding to such a process...
of a suit that perfectly fits its user.
- Nominal constitution: Its contents not always corresponds to the local reality, that is, the real policies carried out within a country. Its text is mainly (or even only) nominal and thus it is not really enforced, due to the lack of appropriate conditions or because the social body is not still ready for them. Nevertheless, it may have an educational value for the people in general, and might became a normative constitution sometime in the future (in the long-term). Loewenstein claims that most of the current world constitutions are nominal to some extent. He compares them to a badly tailored suit.
- Semantic constitution (which he also called “pseudo-constitution”) is a fundamental law enforced to formalize and legalize the monopoly of power previously held by some social and/or economicEconomyAn economy consists of the economic system of a country or other area; the labor, capital and land resources; and the manufacturing, trade, distribution, and consumption of goods and services of that area...
groups, who in fact may have already become illegitimate (compare with the marxistMarxismMarxism is an economic and sociopolitical worldview and method of socioeconomic inquiry that centers upon a materialist interpretation of history, a dialectical view of social change, and an analysis and critique of the development of capitalism. Marxism was pioneered in the early to mid 19th...
concept of superstructureSuperstructureA superstructure is an upward extension of an existing structure above a baseline. This term is applied to various kinds of physical structures such as buildings, bridges, or ships...
). It is a clear means by which dictatorialDictatorshipA dictatorship is defined as an autocratic form of government in which the government is ruled by an individual, the dictator. It has three possible meanings:...
governments pretend to disguise their authoritarianismAuthoritarianismAuthoritarianism is a form of social organization characterized by submission to authority. It is usually opposed to individualism and democracy...
or even totalitarianismTotalitarianismTotalitarianism is a political system where the state recognizes no limits to its authority and strives to regulate every aspect of public and private life wherever feasible...
. In fact, instead of limiting the government's power in favor of the individual rights, those so-called “constitutions” do exactly the opposite: they are meant to reinforce or strengthen an already oppressive previous political system. The historical or remaining communist regimes are clear cases or instances of this phenomenon: the former Soviet UnionSoviet UnionThe Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
, the other Eastern BlocEastern blocThe term Eastern Bloc or Communist Bloc refers to the former communist states of Eastern and Central Europe, generally the Soviet Union and the countries of the Warsaw Pact...
countries, ChinaChinaChinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
, CubaCubaThe Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
, etc. Loewenstein directly compares them with a mere fancy dress.
On the other hand, Loewenstein discarded the idea of trying to devise an “perfect theoretical constitution”, instead claiming that “an ideal constitution has never existed, and will never exist”.
Regimes
Loewenstein claims that political regimes are divides into:- Autocracies: Real power is concentrated in very few hands, who are virtually not subjected to any kind of parliamentarian or administrative control, and that don't recognize the traditional principle of popular sovereigntyPopular sovereigntyPopular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
(or don't wish to do so). He includes in this group the remaining absolute monarchies (like the Saudi ArabiaSaudi ArabiaThe Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
n one) and presidential systems with a very strong executive authority, that have degenerated in BonapartismBonapartismBonapartism is often defined as a political expression in the vocabulary of Marxism and Leninism, deriving from the career of Napoleon Bonaparte. Karl Marx was a student of Jacobinism and the French Revolution as well as a contemporary critic of the Second Republic and Second Empire...
(sometimes called “hyperpresidentialism”).
- Constitutional democracy: Power is the expression of the sovereignty of the peoplePopular sovereigntyPopular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
, as individuals elected for political posts are subject to different controls that ensure the supremacy of the rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
.
Most present-day parliamentary republic
Parliamentary republic
A parliamentary republic or parliamentary constitutional republic is a type of republic which operates under a parliamentary system of government - meaning a system with no clear-cut separation of powers between the executive and legislative branches. There are a number of variations of...
s and constitutional monarchies
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...
(sometimes called “pseudo-monarchies” in political science
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
) republics fall into this group. Not always nominal presidential republics, like the Latin American ones, fall into this category, although the USA is a huge exception to this rule.
According to Loewenstein, this classification not only has to be made looking to the laws that regulate those institutions, but also to the political practices actually observed, because the mere existence of a constitution is not enough to tell whether a certain governments is a democratic or an authoritarian one.
A new tripartite division of power
Loewenstein considered it was extremely difficult to try to change the division of power into the executive, legislative and judicial branches -as established by MontesquieuCharles de Secondat, baron de Montesquieu
Charles-Louis de Secondat, baron de La Brède et de Montesquieu , generally referred to as simply Montesquieu, was a French social commentator and political thinker who lived during the Enlightenment...
- which is a sort of “sacred dogma” for the constitutional theory and practice of liberal democracies
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
.
However, he presented a new tripartite division of power into (three) functions.
- Determination of policies: This means that the state authorities must choose among several different political possibilities that come before them.
- Execution of political decisions: That is, the implementation or carrying out of the previously selected policies.
- Political control: It involves the control of a political decision, by an organ a different governmental organ that took it, verifying that it was done following the standard pre-set rules.
The most efficient mechanism to divide power and to control the national political decisions is to distribute the main government functions into different “departments”, and do the same with their subordinate equivalents in the state, provincial or regional level.
Power distribution means that the (usually three main) different administrative departments is like a watertight compartments that mutually control and limit the otherwise potentially expansive sphere of influence of the others. In the modern parliamentary
Parliamentary republic
A parliamentary republic or parliamentary constitutional republic is a type of republic which operates under a parliamentary system of government - meaning a system with no clear-cut separation of powers between the executive and legislative branches. There are a number of variations of...
and presidential republics this is traditionally done through counterweights usually referred to as “checks and balances”. Loewenstein considers that this last function is the most important in his views about the tripartite division of the political power, because if it didn't exist the other two would automatically fall apart, as even the reach and implications of the national political decisions couldn't be determined or estimated.