The Rechtsstaat and the Left in the 1848 Revolution

The failed 1848 Imperial constitution marked the first attempt to affirm the Rechtsstaat as a principle of German public law. For Robert von Mohl, its main proponent at the All-German Constituent Assembly in Frankfurt, was to be applied according to a class-based criteria: Rechtsstaat for the members of the new liberal society and, at the same time, harsh preventive justice for socially marginalized groups. The left-wing deputies were harbouring a republican vision of a self-governing society, reminiscent of the American and French revolutionary legacy. For the liberal-conservative provisional government, it was crucial to uphold the supremacy of the neutral state law. After the king’s coup against the Prussian Constituent Assembly in November 1848, the left was to repudiate not only the liberal constitutional project, but also the traditional democratic ideal of a political revolution, in favour of a social one. The shift was due to Marx’s thesis about the centrality of political economy over law and state, which were discarded as mere instruments of class domination.