❝The political condition and constitutional law of Germany would afford such a spectacle if Germany could be regarded as a state; its political condition would have to be viewed as legal [rechtliche] anarchy, and its constitutional law as a legal system opposed to the state. Yet everything supports the conclusion that Germany should no longer be regarded as a unified political whole, but rather as a collection of independent and essentially sovereign states. But it is said that Germany is an empire or body politic under a common imperial head and within an imperial union. There can be absolutely no objection to these expressions as legal titles; but an enquiry dealing with concepts is not concerned with these titles (although the definition of the concepts [in question] may clarify what such titles may mean). Admittedly, such expressions as ‘empire’ and ‘imperial head’ are often treated as concepts, and they must act as stop-gaps when the need arises.❞

❝Even if the unfortunate provinces which come to grief through the helplessness of the state to which they belong should denounce its political condition; even if the head of the Empire and the patriotic estates which first came under pressure should vainly appeal to the others for collective action; even if Germany should be pillaged and abused – the constitutional lawyer will know how to demonstrate that all this is wholly in accordance with rights and with practice, and that all these misfortunes are trifles in comparison with the operation of this [system of] justice. If the unfortunate manner in which the war has been conducted derives from the behaviour of individual estates, one of which contributed no contingent at all and very many of which sent raw recruits instead of soldiers; if another paid no Roman Months,13 a third withdrew its contingent at the hour of greatest need, many concluded peace agreements and treaties of neutrality, and the great majority, each in its own way, nullified the defence of Germany – constitutional law can [nevertheless] prove that the estates had a right to behave in this way, a right to plunge the whole into the greatest danger, havoc, and misfortune. And since these are rights, the individuals and the whole must most rigorously guard and protect such rights [even the right] to be destroyed completely. There is perhaps no more fitting motto for this legal edifice of the German state than this: Fiat iustitia, pereat Germania ❞

❝The later condition arises immediately out of that condition in which the nation constituted a people without being a state. In that age of ancient German freedom, the individual stood on his own in his life and his actions; his honour and destiny were not based on his association with a class [Stand], but on himself. Relying on his own sense and powers, he was either destroyed by the world, or shaped it to please himself. He belonged to the whole by virtue of custom, religion, an invisible living spirit, and a few major interests. Otherwise, in his activity and deeds, he did not allow himself to be limited by the whole, but imposed restrictions on himself, without fear or doubt, solely on his own [initiative]. But what lay within his sphere was so very much and so completely himself that it could not even be called his property; on the contrary, he would put life and limb, soul and salvation at risk for what belonged to his sphere, for what we would describe as [only] a part and [for which we] would therefore risk only a part of ourselves.❞

❝The quite distinctive principle of German constitutional law has an unbroken connection with the condition of Europe [as it was] when the nations participated directly in the supreme authority, and not indirectly through laws. Among the peoples of Europe, the supreme political power was a universal authority in which each was accorded a kind of free and personal share; and the Germans have not wished to transform this free personal share, which is dependent on the arbitrary will, into a free share independent of the arbitrary will and consisting in the universality and force of laws. Instead, they have based their most recent condition entirely on the foundation of the previous condition of an arbitrary will which, though not opposed to law, is nevertheless lawless.❞

❝This form of German constitutional law is deeply grounded in that quality for which the Germans have become most famous, namely their drive for freedom. It is this drive which did not permit the German people to become subject to a common political authority [Staatsgewalt], [even] after all the other peoples of Europe subjected themselves to the rule of a common state. The obduracy of the German character has never yielded sufficiently for the individual parts [of Germany] to sacrifice their particular characteristics to society, to unite in a universal [whole], and to discover freedom in common, free subjection to a supreme political authority.❞

❝This form of German constitutional law is deeply grounded in that quality for which the Germans have become most famous, namely their drive for freedom. It is this drive which did not permit the German people to become subject to a common political authority [Staatsgewalt], [even] after all the other peoples of Europe subjected themselves to the rule of a common state. The obduracy of the German character has never yielded sufficiently for the individual parts [of Germany] to sacrifice their particular characteristics to society, to unite in a universal [whole], and to discover freedom in common, free subjection to a supreme political authority.❞

❝The organisation of that body known as the German constitution took shape in [the context of] a life quite different from that which later invested it and does so now. The justice and power, the wisdom and valour of times gone by, the honour and blood, the well-being and misfortune of long-deceased generations and of the manners and relationships which perished with them, are [all] expressed in the forms of this body. But the course of time, and of the culture [Bildung] which develops within it, has cut the destiny of that age off from the life of the present. The structure in which that destiny resided is no longer supported by the destiny of the present generation;d it stands without sympathy for the latter’s interests and is unnecessary to them, and its activity is isolated from the spirit of the world. If these laws have lost their former life, the vitality of the present age has not managed to express itself in laws. The vital interest of each has gone its own way and established itself separately, the whole has disintegrated, and the state no longer exists.❞

❝It is no doubt recent developments above all which have afflicted the Germans with this vice. In the perpetual contradiction between what they demand and what happens contrary to their demand, they appear not only censorious but, when they talk only of their concepts, untruthful and dishonest; for they attribute necessity to their concepts of right [Recht] and duties, whereas nothing happens in accordance with this necessity, and they are themselves all too accustomed on the one hand to a constant contradiction between their words and the deeds [of others], and on the other to trying to make of the events something quite different from what they really are, and to twisting their explanation of them to fit certain concepts. But anyone who tried to understand [kennenlernen] what normally happens in Germany by looking at the concepts of what ought to happen – namely the laws of the state – would be utterly mistaken. For the dissolution of the state can be recognised primarily from the fact that everything is at variance with the laws. He would likewise be mistaken if he took the formc assumed by these laws to be the true ground and cause of this dissolution. For it is precisely with regard to their concepts that the Germans seem dishonest enough not to acknowledge anything as it is, and not to present it as either more or less than the facts actually warrant. They remain true to their concepts, to right and the laws, but the events tend not to correspond with these, so that whichever party [Seite] stands to gain an advantage by doing so strives to reconcile the two by means of words with the force of concepts. But the concept which embraces all the others is that Germany is still a state today only because it once was a state, and because those forms whose inner life has [now] departed are still with us.❞

❝The thoughts which this essay contains can have no other aim or effect, if expressed publicly, than that of promoting an understanding of what is, and hence a calmer attitude and a tolerant moderation both in words and in actual contact [with events]. For it is not what is that makes us impetuous and causes us distress, but the fact that it is not as it ought to be; but if we recognise that it is as it must be, i.e. that it is not the product of arbitrariness and chance, we also recognise that it is as it ought to be.7 But it is difficult for human beings in general to rise to the habit of trying to recognize and think [in terms of] necessity. For between the events and their free apprehension they interpose a mass of concepts and ends, and they expect what happens to conform to these. And when it doubtless turns out otherwise in most cases, they get round their concepts by arguing that, whereas these were governed by necessity, the events were governed by chance. For their concepts are just as limited as their view of things, which they interpret merely as individual events and not as a system of events ruled by a spirit; and whether they suffer from these events or merely find that they contradict their concepts, they find in asserting their concepts the right to complain bitterly about what has happened.❞

❝The present peace affords an opportunity to consider the inner causes, or spirit, of these results, which are merely the external and necessary appearances of this spirit. Besides, this consideration is in itself worthy of anyone who does not simply surrender to current happenings but recognises the event and its necessity. By such recognition, he distinguishes himself from those who see only arbitrariness and chance through the eyes of their own vanity, and thereby convince themselves that they would have exercised wiser and more effective control over all that happened. For most people, such recognition is of importance only because they [can derive enjoyment from] it and from the intelligent judgements on individual things which it makes possible, not in order that they may learn by experience how to act better on a future occasion. For there are very few people who can act in these great events in such a way as to direct their course, whereas the others must serve the events with understanding and insight into their necessity. But those who learn from the experience of mistakes which are an expression of inner weakness and imprudence are not so much those who have made the mistakes: on the contrary, they are merely confirmed in their habit of making them. It is others who take note of [kennenlernen] them and are enabled by this insight to profit accordingly; and if they are at all capable of doing so, and if their external circumstances make this possible, they are in possession of an insight which may well be lacking in the thought of a private individual.❞

❝The health of a state generally reveals itself not so much in the tranquillity of peace as in the turmoil of war.5 The former is a state [Zustand] of enjoyment and activity in isolation, in which government is a wise paternalism which makes only ordinary demands upon its subjects; but in war, the strength of the association between all [individuals] and the whole is displayed, both in the extent of the demands which this association has managed to impose on individuals and in the worth of what the latter are prepared to do for it of their own initiative and inclination [Trieb und Gemut].
Thus, in the war with the French Republic, Germany has found by its own experience that it is no longer a state. Both in the war itself and in the peace which concluded it, it has become aware of its political condition. The following are the tangible results of this peace: some of the finest German territories have been lost, together with several million of the country’s inhabitants; a burden of debt, which weighs more heavily on the southern than on the northern half, prolongs the misery of war far into the peace; and apart from those states which have come under the rule of the conquerors, and hence also of foreign laws and customs, many others will lose what is their highest good, namely their existence as independent states.❞

❝There is no longer any argument about which concept the German constitution falls under. What can no longer be related to a concept [begriffen] no longer exists. If Germany were supposed to be a state, we could only describe the present condition of the state’s dissolution as anarchy (as a foreign scholar of constitutional law did), were it not that the parts have reconstituted themselves into states which have retained a semblance of unity, derived not so much from a bond which still exists as from the memory of an earlier one. In the same way, fallen fruit can be seen to have belonged to a particular tree because it lies beneath its branches; but neither its position beneath the tree nor the shade which the tree casts over it can save it from decomposition and from the power of the elements to which it now belongs.❞

❝Germany is no longer a state. The older teachers of constitutional law had the idea of a science in mind when they dealt with the constitutional law of Germany, and they accordingly set out to specify a concept of the German constitution. But they could not reach agreement on this concept, and their modern counterparts finally gave up looking for it. The latter no longer treat constitutional law as a science, but as a description of what is present empirically without conforming to a rational Idea; and they believe that it is only in name that they can describe the German state as an empire or body politic.❞