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Die Verfassung des Deutschen Reichs mit Erläuterungen. Von

DR. LUDWIG DAMBITSCH, Amtsrichter. (Berlin: Verlag von Franz Vahlen, 1910. Pp. 696.)

The treatises on German constitutional law, both general and monographic, increase apace. The field makes a strong appeal to the German fondness for academic and theoretical disputation, for fine-spun arguments and subtle distinctions. German constitutional law is now passing through the stage which American constitutional law occupied before the civil war,-a period in which the innumerable details of governmental relations in a federal state with a complex system of balanced powers are threshed out in the form of argumentative discussions. This structural, anatomical study of government must always take precedence; but there comes a time—and in America we have reached it-when it becomes necessary to supplement it by a physiological and a morphological treatment. Constitutional law must include something more than a mere exposition or commentary on the clauses of a written fundamental law. The conventional and dynamic aspects of government are equally important. These phases of the subject, moreover, cannot be left to separate treatises. Unless the study of the strictly legal side of constitutional law be informed and enlivened by constant reference to the actual working of institutions and their transformation under the influence of historical forces it is certain to eventually degenerate into the veriest scholastic emptiness. There is possibly some danger of this at present in Germany. There can be no doubt that a Bryce's American Commonwealth for Germany would be a great boon.

The treatise under review, a substantial octavo volume of nearly seven hundred pages, cannot be said to mark a great advance over its predecessors in giving a vital and intimate view of the actual functioning of the German government. It is what its title implies, a commentary on the written constitution of the German Empire. The articles are taken up in order and their meaning and purport expounded; where differences of opinion exist, these are stated and argued. The presentation is clear and exhaustive so far as it goes.

The author displays on every page a thorough command of the subject. But the narrowness of the method is in some respects perhaps even more obvious than in other standard works. The German judiciary, for example, is not discussed because it rests upon a statutory and not a constitutional basis. On the other hand there are chapters on "The Tariff and Commercial Systems," "The Railway System," “Posts and Telegraphs," "The Marine and Shipping," and "The Consular System” simply because the imperial constitution contains articles upon these subjects. Few written constitutions are so well proportioned or display so clear and discriminating a knowledge of what should, and what should not, be included in a fundamental law as that of the United States. Yet even here the commentary upon the constitution, in which the instrument is taken up article by article and expounded, is somewhat old-fashioned. Germany's constitution is quite the opposite from ours. It reflects the practical state craft and constructive genius of a single great statesman, who was much less concerned about the proper proportions of the instrument, and whether it nicely included all that might be considered fundamental and as nicely excluded all else, as he was about getting in it those things which he deemed essential for the new state. Such a document really lends itself far less to the commentary" form of treatment than does ours. A very considerable portion of our author's work is perforce not constitutional law but administrative law, yet this portion does not constitute a comprehensive treatment; it is merely fragmentary. There may still be a place for such a work; but it is evident that in pursuing unity and simplicity of form he has sacrificed unity of subject matter.

An American student in reading a work on German constitutional law notices a marked difference from American treatises in the nature of the sources upon which the author relies. The primary and principal agency for the solution of puzzling questions in American constitutional law has always been the Supreme Court, and it is in the decisions and opinions of that tribunal that the chief sources of the subject are to be found. Early text-writers in American constitutional law, and particularly Story, have contributed something, but for the most part the works of publicists have been little more than digests of decisions of courts. In Germany it is altogether different. Constitutional law there, like International law, rests in very large degree upon the works of eminent treatise writers. Such names as Laband, Georg Meyer, Von Rönne, Seydel fill the places which

with us are occupied by Marshall, Story, Taney, Waite and Brewer. The work under review has constant occasion to refer to the standard authoritative treatises, but its conclusions are also based in no small degree upon a very wide acquaintance with: (1) the debates in the constituent Reichstag; (2) more recent debates in the Reichstag; (3) statutes, ordinances and rules of procedure; (4) the dicta of eminent statesmen, particularly Bismarck and his successors in the chancellorship; (5) the analogous clauses in the Prussian constitution. Only very rarely is the practice in other countries referred to, and almost as seldom is a decision of a court cited.

On the moot questions in German constitutional law the author generally takes a moderate, safe position, which might be expected from the fact that he is not a university professor but a judge. Against the prevalent view among German writers, he maintains a doctrine of divided sovereignty. Sovereignty in the empire, he holds, is divided between Kaiser and Bundesrath. The work, while not reflecting great originality either in method or treatment, is a scholarly one and will doubtless prove of considerable service.


Traité de Droit Constitutionnel. By LEON DUGUIT, Professor de

Droit a L'Université de Bordeaux. (Paris: Fontemoing and Company. Vol. I. Pp. 570; Vol. II, pp. 558. 1911).

This work is a revised and enlarged edition in two volumes of Professor Duguit's well-known "Manuel de Droit Constitutionnel” published in one volume several years ago. The first volume deals with the general theory of the state, its nature, functions, organs and agents, the second volume is devoted to the subjects of liberty and political organization, mainly in the French Republic. The new matter in Volume I consists principally of a chapter on “Public Agents," a discussion, thirty pages in length entitled “Le Corps des Citoyens” and a more extended treatment of the legislative function than is found in the "Manuel.” The subject matter of Volume II has been changed by the omission of the chapter on "Law and the State" found in the “Manuel” and by the addition of a chapter, 164 pages in length, dealing with the subject of liberty, its nature, forms and guarantees.

The general political theories enunciated by Duguit in his "Manuel" and repeated in the "Traité" were reviewed and criticised by Dr. J. M. Mathews in the Political Science Quarterly for June, 1909. He defines a state as any human society in which there is political differentiation, i. e., a differentiation between those who govern and those who are governed. Thus an African tribe whose members obey a chief is a state the same as the most highly organized society of Europe. He divides the theories of state origin into two classes: (1) the theocratic doctrines; and (2) the democratic doctrines. He estimates the theo

ratic doctrines at their true value, in our opinion, when he says they explain nothing. The end of the state he conceives to be the realization of law, i. e., the maintenance of a legal régime. He criticises at length the German juridical theory of the "state person” as unscientific and inadmissible and declares that it rests upon a metaphysical á priori conception. The state, he maintains, is not a personality distinct from the individuals who compose it.

From a discussion of the nature of the state he passes to a consideration of the nature and kinds of public law and its relation to private law. Like many writers he ignores the distinction between the state and the nation. The modern "nation," he says, is a historico-social formation-an agglomeration of cities, as the city is an agglomeration of families. Community of political authority, race, language and religious belief does not alone make a nation; there must in addition be community of traditions, needs and aspirations. He rejects the view that territory is an indispensable constituent element in the makeup of a state though modern civilized states are as a matter of fact fixed upon a determinate territory. Like many French writers he also repudiates the theory of the trinity of governmental powers and holds that the judicial power is not separate and distinct from the executive power (Vol. I, p. 359).

For the American student the most valuable part of Duguit's treatise is that which deals with the government of France. Concerning the method of choosing members of the Chamber of Deputies he advocates a return to the scrutin de liste, which, he says, is more in harmony with the French theory of representation, namely, that the Deputy should be a representative of the entire country instead of a particular circumscription. Although not without inconveniences they are in fact much fewer, we are told, than those of the scrutin d'arrondissement, the method now employed. The latter method facilitates electoral corruption through the temptation which it offers

to candidates to make promises of favor, places, decorations, railways, etc., to the electors of the arrondissement. It also has the effect of causing the deputy to regard himself as a local representative rather than the representative of the general interests. The argument that the method of scrutin d'arrondissement enables the electors to become better acquainted with their deputy, is, he says, really an argument against the system for the reason that the deputy is not the mandataire of the electors of any arrondissement, but of the whole country, and hence there is no reason why they should be personally acquainted with him or he with them. Finally, the present method by which deputies are chosen from petty districts greatly adds to the influence which the government is able to exert in the elections (Vol. I, pp. 375-376).

Another reform strongly advocated by M. Duguit is the introduction of a system of proportional representation for the choosing of deputies. Combatting the powerful arguments of Esmein (Droit Constitutionnel, 5th ed., p. 253) against the principle of proportional representation, Duguit declares that it harmonizes admirably with the French conception of representation. It goes without saying, he says, that a parliament in which the different political parties are represented in proportion to their voting strength can express more exactly the will of the nation than can one elected on the principle of the majority system. Nor is the principle of proportional representation inconsistent with the principle of national sovereignty and the representative mandate; on the contrary, it is the only adequate and just method of representation that can be devised. He shows by a table of votes prepared by M. Benoist that in every election since 1881 the number of voters unrepresented has exceeded the number represented. A notable example of the working of the present method is found in the law of 1905 for the separation of Church and State, which was passed by the votes of 341 deputies who represented only 2,647,315 electors out of a total of 10,967,000. A particular advantage which would result from the introduction of a system of proportional representation would be to greatly augment the size of the vote cast in the election of deputies, since the electors belonging to minority parties would have the assurance of being represented. It may be remarked in this connection that in November, 1909, the Chamber passed a resolution in favor of establishing both the scrutin de liste and a system of proportional representation, but as yet the views of the Chamber have not been embodied in a law. M. Duguit also advo

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