Legal Power Of Dictatorship In Democratic Political System

On July 20, 1932, Constitutional Court of Weimar Republic heard a case concerning accusation of Prusse State against Federal Government. Focuses of the case are: firstly, at the level of law, the accusation of local government against central government itself affords for thoughts and the key point of accusation lies on adoption of president’s emergency powers of Federal Government to fight against liberal and democratic rule by law system. The connotative meaning of the case is confrontation of “dictatorship” against “democracy”. Secondly, at the level of political philosophy, Constitution of Weimar Republic specified president’s emergency powers, which should be used to safeguard stability of constitutional government of Weimar, but it faced the crisis of being cracked down inside law by enemies of liberty and democracy – as a matter of fact, the power of the Nazi was even “legal”. This is indeed a paradox in a modern democratic country. Some scholars believed the cause to collapse of Weimar can be traced to abuse of president’s emergency powers and even unclear hearing for accusation of Prusse against Federal Government on July 20, 1932 indulged the abuse of dictatorship power essentially. So, it is regarded as the starting point for collapse of Weimar.This paper surveyed dictatorship officer system founded in Ancient Roman Republic based on national excuses and modern democratic state systems like “siege state” of France, “Martial Law” of Britain and “president’s emergency power” of America. By studying emergency power system of history, this paper surveyed the application of Article 48 of Weimar Constitution in accusation of Prussia against federal government in 1932. In order to realize the research purposes, this paper “integrated history and theory” to study Article 48 of Weimar Constitution, which stands for dictatorship of Weimar President’s emergency powers. By combining “clearing of history” with “text interpretations”, it firstly studied historical background of constitutionalism in Weimar Republic and analyzed accusation of Prussia against federal government in 1932. Then, it interpreted texts of three jurists: Schmitt, Kelsen and Heller. With research methods of “integration of history with theory” and “reviewing law with case”, it highlighted opposition between Schmitt and Heller inside court concerning legality for federal government to suspend operation of Braun Cabinet according to Article 48 of Weimar Constitution and deeply explored the dispute on “safeguard of constitution” between Schmitt and Kelsen outside court. Texts on controversy of academic views of the three jurists are important components of the research.By studying different views of the three jurists on crisis of Weimar, we need to recognize “two sides” of decisionism of Schmitt: its timeliness in making decisions for dealing with crisis is incomparable on one hand; and “risks” of decisionism were revealed clearly after Nazi taking power. Meanwhile, we also need to prevent potential “political force” of pure law system of “de-politics” of Kelson, as it is easy for such “de-political politics” to cause cynicism and anarchism. Mostly, it will lead to a kind of “covert” dictatorship. Meanwhile, it is also necessary to focus on efforts of Heller for coordinating theories of Schmitt and Kelson – protect legal system from being infringed at the moment of crisis and give legal autonomy for political power. Though Heller did not propose systemic solution, our thoughts on his short academic career may become another possibility of solving crisis of Weimar.Even so, we sill face a crucially important problem: whether constitutionalism with restrictive public powers should completely give up dictatorship factors; and whether legal terms and conditions or dictatorship instruments are adopted for safeguarding national orders especially at the moment of national crisis. For understanding connotations of “Constitutionalism”, the importance of democratic system is self-evident, but the dimension of “dictatorship” cannot be ignored. Constitutionalism with restrictive public powers does not mean complete abandonment of dictatorship factors. This is the current contradiction in constitutionalism theory as well as the reality in future practice of constitutionalism.