Legalizing Schmitt’s “Legality and Legitimacy”

The “Preussen Contra Reich” case of 1932, in which the Prussian state government sought an injunction against the Weimar Reich federal government, marks a unique chapter in understanding Carl Schmitt and his work. The removal of the SPD (Social Democratic Party) dominated Prussian state government, by the conservative Weimar Reich federal government, under the emergency decree drawn up by president Paul von Hindenburg on 20 July 1932, would be known as the "Preussenschlag". The removed Prussian government would choose not to resist the "Preussenschlag" by physical means, and “challenged the legality of the decree with an appeal to the "Staatsgerichtshof" (a form of a State Constitutional Court)” . This legal challenge would allow for the theoretic works of Carl Schmitt to be debated and applied to actual events within the realities of a legal court and legal proceedings. Carl Schmitt himself would be present during these proceedings, as counsel for the Weimar Reich federal government. During the opening arguments from the Prussian state government (plaintiff), in two instances direct reference is made to Carl Schmitt’s “Legality and Legitimacy”. The first reference is made by Ministerialdirektor Dr. Albert Brecht. He begins his arguments by specifically quoting a passage from “Legality and Legitimacy”, referring to page 37 and Schmitt’s principle of “equal chance”. The second reference is made by Professor Dr. Hans Peters, referring specifically to page 72 of “Legality and Legitimacy”. This passage from “Legality and Legitimacy” makes the case that “extraordinary action” is needed in order to deal with extreme situations, as “ordinary norms” in such situations would be ineffective. Dr. Peters argues against this position, claiming that it is exactly in such “extreme situations” whereby “ordinary norms” will prove to be useful. Acting as counsel to the Weimar Reich federal government (defendant), Carl Schmitt in turn directly responds to Dr. Brecht. By referring to his own work, Carl Schmitt attempts to bring across what he meant with the principle of “equal chance” and in turn applies this principle to the factual circumstances present in the state of Prussia at the time. The main objective of this paper will be to firstly present the arguments referring to “Legality and Legitimacy” during the opening day of the “Preussen contra Reich” case. Bringing the circumstances of the case together with the theoretic arguments brought forward will allow for a practical understanding of certain concepts expressed within “Legality and Legitimacy”. Extensive reference will be made to the primary source itself, and supplementary commentary from the parties involved. Upon completing this initial objective, the paper is then allowed to pursue its secondary, and prime objective, which is to question Carl Schmitt’s principle of “equal chance” and theory on the requirement of “extraordinary action” to deal effectively with extreme situations.