The Rechtsstaat in Bismarck’s Times

After 1848, the Conservative theorist Stahl promoted a de-politicized Rechtsstaat principle as a valuable instrument of government, facilitating economic and political stability. During the years of Bismarck’s anti-constitutional rule and the Empire building process, the left condemned the Rechtsstaat as mere scam for an authoritarian militarist regime. Ferdinand Lassalle vilified the liberals for trying to denounce Bismarck’s disregard for Rechtsstaat. He called instead for a state-driven social transformation, on the assumption that legal guarantees had to give way to the laws of historical progress. The Marx-inspired Social-Democrats were torn between attempts to elaborate the socialist constitutional doctrine and claims about its incompatibility with the economic explanation of social relations. A centrist view, advanced by Kautsky and Engels, translated Marx’s problematic slogan about the ‘dictatorship of proletariat’ into the language of democratic constitutionalism, i.e., into revolutionary politics by means of parliamentary sovereignty. For them, a Legislative dominated by the SPD should promote a new cooperative society against both the State identified with the Executive and Judiciary, and the old antagonist society.