Michael Stolleis

Origins of the German Welfare State: Social Policy in Germany to 1945

This book provides a historical survey of the development of social protection in Germany up to 1945. It is based on the realization that the modern, complex “system” of social protection is an “evolved” one and can be best understood by knowing how it came into being. It has layers of historical growth and is a far cry from the kind of rigor one expects of “systems” in the scientific or philosophical sense. But in the professional discourse of social theory and social law it may well be referred to as a “system,” and this can be useful to the historian if he is asked to specify the past phenomena he is searching for and in which he expects to find a bridge to the present.

Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic

Abstract Judicial review (richterliches Prufungsrecht), administrative review (Verwaltungsgerichtbarkeit), and constitutional review (Verfassungsgerichtsbarkeit) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with the U.S. Supreme Court, or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned.

History of social law in Germany

Introduction.- Social Protection in the Middle Ages and in the Early Modern State: Alms, Poor Relief, Care, Social Help.- Social Policy in the Empire: The Insurance Solution.- The First World War.- The Weimar Republic.- The Nazi State.- The Post-War Period, the Federal Republic, and the German Democratic Republic.- Social Law as a Scientific Discipline.- Europeanization of Social Law.- Long Term Perspectives for Social Protection.- References.- Index.

European and International Regulation after the Nation State: Different Scopes and Multiple Levels

Der Philosoph und Soziologe Hans Albert schließt mit einem gewohnt kraftvollen und klugen Epilog den Reigen, indem er nach dem bleibenden Wert des Freiburger Erbes fragt. Diese Frage ist alles andere als ketzerisch, sie ist zudem dringend notwendig. Schließlich gelten selbst Namen wie Eucken in den heutigen Wirtschaftswissenschaften nicht mehr viel; die internationale Forschung ist über die Freiburger hinweggegangen. Doch wäre diese nicht, was sie heute ist, wenn es die Freiburger nicht gegeben hätte. Auch Albert leugnet die theoretischen Unausgereiftheiten in Euckens Ansatz nicht. Durch seinen institutionalistischen Ansatz und durch seine Betonung der Freiheit für die soziale Ordnung habe sich Eucken zwar von dem vorherrschenden, weitgehend unfruchtbaren neoklassischen Paradigma in mancher Hinsicht gelöst. „Aber andererseits enthielt seine Marktformenlehre neoklassische Elemente. Und auch er verfügte noch nicht über eine Verhaltenstheorie, die an die Stelle der neoklassischen Entscheidungslogik hätte treten können“ (S. 415). Diese habe erst Friedrich August von Hayek beisteuern können. In der Fortsetzung durch die evolutionistische Konzeption Hayeks und durch den Konstitutionalismus James Buchanans jedoch lebe das wichtige Freiburger Erbe heute fort. Euckens Leistung habe dabei vor allem darin bestanden, ein überragendes theoretisches Problem wiederentdeckt zu haben: „nämlich das Problem, welche Bedeutung Ordnungen für den Ablauf bestimmter sozialer Prozesse haben.“ Das Buch ist eine Fundgrube, für den akademischen Leser ebenso eine unerschöpfliche Quelle wie für den Laien ein Glück.

III. Social Policy in the Empire: The Insurance Solution

One of the basic human experiences is that membership in a group affords greater protection. Children, the weak and sick, the poor and the elderly have always depended on solidaristic support from the immediate or extended family as well as their neighbors. This has given rise to a great diversity in forms of aid and support of every kind. Industrial society at the beginning of the twenty-first century also knows this diversity, and it grounds its functions more or less consciously in these early efforts. However, there is a growing number of living arrangements involving single adults living on their own (probably historically unprecedented in this form) without clear group membership, though their existence depends, of course, on the functioning of many public institutions. The taxes, fees, and contributions generated also by these “singles” help to keep these institutions operating and viable.

VII. The Post-War Period, the Federal Republic, and the German Democratic Republic

The metaphor of the “zero hour” to describe the new beginning following Germany’s capitulation on May 8, 1945, is both fairly accurate and misleading when it comes to social policy and social law. With respect to the human and physical devastation of the war, the Holocaust, the streams of refugees, and the paralysis of the power of the state, the assumption of “supreme authority” by the Allied military forces was in fact the end and a new beginning all at once. Politically, militarily, and in terms of constitutional law, a point had been reached from which the only possible way was forward. A morally discredited regime had collapsed and its army had surrendered. Even the critics of the metaphor do not question that this was a indeed a “zero hour.” But they point out that strong continuities existed in many other spheres of life, as work was simply resumed or carried on as best as possible. This is especially evident where specific material tasks had to be accomplished and the ideological cast of National Socialism could be thrown off or at least suppressed. Social law was such a sphere. The material hardships of the years after 1945 virtually cried out for a rebuilding of social protection, and the way this was accomplished, first in the occupation zones and then in the two German states, would have been unimaginable without the appropriately trained personnel, the structures that still existed, and what remained of the physical assets.

VIII. Social Law as a Scientific Discipline

The history of social law and social policy in Germany, shaped by constant interaction between politics and legislation, administrative praxis and jurisprudence, is—if one uses the terminology in the strictest sense—barely older than a few decades. It was only in the second half of the twentieth century that what is today called “social law” amalgamated into a field that was perceived and labeled as a unified whole. As in most cases like this, it is hardly possible to say precisely when that happened. It is characteristic of scientific and intellectual history that the signals for changes in the collective perspective cluster in certain phases. A situation is perceived as unsatisfactory: a new word is sought, several coinages are tried out, and one prevails in a kind of semantic evolution. We are talking about the gradual creation of consensus in the “scientific community,” when a collective term for diverse legal fields is found and makes it seem promising to offer relevant courses and textbooks. In Germany, this process took place between 1960 and 1980, evident from the titles of textbooks, the establishment of Habilitation for social law, and the creation of institutes and professional associations. In the Federal Republic, two men who were especially active in this development were Georg Wannagat, the former president of the Federal Social Court, and Hans F. Zacher, a public law jurist from Munich. The latter, in particular, provided crucial impulses for social law as the founding director of a Max Planck Institute for Foreign and International Social Law.

X. Long Term Perspectives for Social Protection

The frequently asked question of what we can learn from history in general, and from the history of social protection, in particular, leads to two contradictory answers: (1) there is nothing to be learned, because history never repeats itself and because no normative statements can be extracted from descriptive statements. (2) All that is ever learned, and that includes what is wrong, is learned from “history,” namely from individual and collective experiences: for we know only what is behind us, but not what is ahead of us. In this sense, typical constellations and experiences can surely be bundled into some kinds of theses. What can be inferred from them bears all the uncertainties that are characteristic of forecasts. Moreover, experiences must be assessed—that is, in the final analysis societies decide, on the basis of the normative objectives dominant within them, which forms and benefits of social protection they want and which they reject.

V. The Weimar Republic

The economic and social situation was desperate after the war. The situation could no longer be managed with the traditional poor relief. Before the war, the basis of welfare provisioning had been “that one is dealing with non-economic entities” who were unable “to find their place in life on their own” and “to fulfill their task in economic life and society” (Klumker 1918, p. 25). Six million soldiers and more than three million surviving dependents and disabled veterans now had to be integrated. They were joined by impoverished service members and other unemployment casualties of the conversion from wartime to peacetime production. National income had been cut in half. The state and local government were in debt and a rising inflation, which would destroy savings, seemed only a matter of time. In this way, the relatively contained strata of the “poor” (Klumker 1918, pp. 10ff.) from before the war had become a menacingly broad stratum, which was filled not only by victims of the war, but also by a middle class stripped of their assets.

II. Social Protection in the Middle Ages and in the Early Modern State: Alms, Poor Relief [ Armenpolizei ], Care, Social Help

Providing material and immaterial care to the poor, the elderly, widows, and orphans, out of pity or a sense of moral-religious obligation, has become the socio-ethical norm and praxis in nearly all cultures. However, Christianity placed a special emphasis on this obligation from the outset, and it shaped the picture of both individual and corporate practical altruism through multifarious and venerable institutions and activities (Liese 1922; Isensee 1995, §59). For the churches, to use the words of the Federal Constitutional Court, “the fulfillment of the works of altruism through the gift of the individual member of the church is an essential part of the practice of the Christian religion,” that is to say, it is a “fundamental function of the church.”