Karl Loewenstein (November 9, 1891 inMunich – July 10, 1973 inHeidelberg) was a Germanlawyer andpolitical scientist, regarded as one of the prominent figures ofConstitutional law in the twentieth century.

His research and investigations into the typology of the different constitutions have had some impact on the Western constitutional thought. Loewenstein is credited with establishing the theoretical foundations ofmilitant democracy to battle anti-democratic mass movements.

He worked as lecturer in his native city ofMunich whenAdolf Hitler'sNazi Party took power in 1933. Loewenstein went to theUnited States, becoming chair ofpolitical science atAmherst College and published extensively. He receivedAmerican citizenship and afterWorld War II worked for theAllied Military Government of Occupied Territories (AMG) inWest Germany.

Karl Loewenstein was born in 1891 into a Jewish family that had assimilated inMunich's German-Jewish bourgeoisie. The young Loewenstein studied at universities in Munich, Heidelberg, Paris, and Berlin. He settled in Munich and in 1918 wascalled to the bar inBavaria. Loewenstein received his doctorate in law from theUniversity of Munich in 1919. In the 1920s, Loewenstein continued his studies and built up a law practice ininternational commercial law. In 1931 Loewenstein completed his postgraduate studied oncomparative government and began working as a part-time lecturer in law atMunich University.^[1]

After theNazi Party seized power in 1933 Loewenstein immigrated to theUnited States and worked for two years atYale University as a lecturer in politics. In 1936 Loewenstein became chair of political science and jurisprudence atAmherst College. Soon after, the work-obsessed Loewenstein receivedAmerican citizenship, was called to the bar inMassachusetts and began publishing extensively on European and South Americanfascist movements. Loewenstein remained emotionally connected to his German homeland and the Nazi rise to power filled him with great sorrow.^[2] He published an academic review of how the Nazis parasitized theGerman Civil Code in the three years since taking power, explaining bitterly that "National Socialism is anti-liberal and anti-individualistic, by implication it is irrational, mystical, and romantic; by its result it is totalitarian to the point of religious obsession."^[3]

In 1937 Loewenstein published two articles inThe American Political Science Review which analyzed the failure of theWeimar Republic and the collapse ofdemocracies on the European continent afterWorld War I. Loewenstein argued that the failed European democracies lacked effective instruments to defend against modern anti-democratic movements. Loewenstein coined the termmilitant democracy (streitbare Demokratie) when he described a battle-ready democracy that was equipped with robust constitutional mechanisms to withstand anautocrat who by popular vote acquired office within a democratic institution.^[4] Loewenstein summarized his academic analysis of Fascist power grabs on the European continent in the1930s and concluded that the enemies of democracy would exploit the freedoms guaranteed in a democracy to disable the democratic order from within while at the same time insisting on their own individual rights guaranteed by therule of law. Therefore, Loewenstein reasoned that a self-preserving democratic state should be prepared to useemergency powers and temporarily suspend a fundamentalhuman right, if the institutional rule of law is obstructed or sabotaged.^[5] Loewenstein maintained that fascism had no intellectual kernel and instead relied on "emotionalism" that cannot be battled by normal democratic means. He contended that "fire should be fought with fire" and that in the face of adversity, a more "disciplined" democracy was needed.^[6]

In 1939 theJohn Simon Guggenheim Memorial Foundation awarded Loewenstein a fellowship and he was able to travel to Latin America for research.^[7] In the wake of the 1941Atlantic Charter, which set out American and British goals for the world after the end ofWorld War II, theAmerican Law Institute (ALI) invited Loewenstein andErnst Rabel to join a committee of international experts as representatives of pre-Nazi German legal culture. The committee issued advice for the drafting of aStatement of Essential Human Rights. Loewenstein argued thathuman rights can only be realized in ademocracy and formulated a right to participation in government which was adopted as Article 16 of the ALI draft: "[e]very one has the right to take part in the government of his state", which corresponded to a duty of the state "to conform to the will of the people as manifested by democratic elections".^[8] Between 1942 and 1944 Loewenstein worked for theUS Justice Department. In 1943 and 1944 Loewenstein also completed work for theForeign Economic Administration (FEA).^[9]

WhenWorld War II ended in 1945 Loewenstein jumped at the opportunity to work as a consultant for theAllied Military Government of Occupied Territories (AMG).^[10] Loewenstein arrived in occupied Berlin in July 1945 and alongside twenty other lawyers worked for the Legal Division, aUS military organ tasked with reforming Germany's legal structure.^[11] The prominent German juristCarl Schmitt was immediately targeted by the AMG because the American military governor of occupied GermanyLucius D. Clay ordered that the intellectual masterminds of Nazi Germany should also be bought before theNuremberg Tribunal.^[12] Loewenstein was tasked with investigating Schmitt and had him arrested without charges in September 1945. Loewenstein impounded Schmitt's book collection for the use by the AMG. In November Loewenstein completed the arrest report which attested Schmitt a substantial influence inNazi Germany and a worldwide reputation as chief ideologist fortotalitarian andfascist movements with particular influence inFrance,Spain, andLatin America.^[13] An investigating committee cleared Schmitt and he was released in October 1946, only to be summoned to theNuernberg trials byOssip K. Flechtheim. When interrogated byRobert Kempner before being released again,^[14] Schmitt niggled: "There is nothing being brought against me other than what I have written".^[15]

Loewenstein traveledAllied-occupied Germany for 15 months and helped to identify judges, lawyers and law professors that should be banned from contributing to Germany'sjurisprudence. As one of only three German lawyers working for the Legal Division, Loewenstein acted as intelligence officer and conducted interviews with members of the German legal profession. Loewenstein was called the "pope ofdenazification" by his colleagues for his efforts to reform theGerman Bar Association. Loewenstein succeeded in making the German Bar independent of political oversight.^[16]

In 1946 Loewenstein refused the offer of a professorship in legal history atErlangen University.^[17] Instead Loewenstein between 1949 and 1952 campaigned for the established of apolitical science faculty in Germany. Starting in 1949 Loewenstein held several lectures on the nature of political science. Loewenstein was joined by the exilesFranz Neumann,Ferdinand Hermens andAlexander Rüstow in the attempt to establish political science an independent faculty that developed methodologies of research with autonomy from university subjects such as philosophy, history and jurisprudence. Loewenstein regarded the US political science faculty as the benchmark for academic discipline^[18] and lamented that the German academic tradition suffered because it regarded political power as aGothic force with the demonic characteristics of love and faith. Loewenstein, himself professor of political science in the US, forcefully dissented. "Politics is nothing else but the struggle for power". He regarded political science as autonomous university subject because "more and more, power is being considered the dynamic infrastructure of sociopolitical institutions".^[19]

Political science was established as separate university subject inWest Germany and 16 exiles were appointed as full-time political science professors during the 1950s and 1960s.Ernst Fraenkel,Ossip K. Flechtheim, andRichard Löwenthal received professorships in thesocial democratic West Berlin. While the universities in the liberal-conservative mainland West Germany awarded professorships toArnold Bergstraesser,Heinrich Brüning,Ferdinand A. Hermens,Fritz Morstein Marx, andEric Voegelin.^[20] Loewenstein pursued his own academic ambition and after political maneuvering he was appointed professor of political science atMunich University. The university's faculty of law, whose members were predominantly former Nazis, considered Loewenstein's appointment particularly controversial. When theNazi Party seized power in 1933 Loewenstein had worked as a law lecturer at Munich University. He felt compelled to go into exile when his university office was stormed by Nazis. Loewenstein was 65 years old when he was appointed and was formally put on leave from teaching at Munich University so he could continue to retain his primary residence and professorship in the US.^[21]

In 1957 Loewenstein published his book onPolitical Power and the Governmental Process (retitledVerfassungslehre in a later translation into German), which was reprinted several times.^[22] Loewenstein categorized constitutions according to their impact on therule of law. He distinguished between three types of constitutions. Anormative constitution is fully effective, thepolitical system is compliant with the provisions of the constitution and politicians are bound by law. Anominal constitution is not fully effective as practical implementation of constitutional provisions is hindered by political and economic power structures or because laws are generally not faithfully applied. Loewenstein categorized constitutions that reflect a political vision but had no impact on the rule of law assemantic.^[23] He maintained that countries in theWestern bloc typically had normative constitutions. He theorized that states withcolonial orfeudal social structure are most likely to have anominal constitution.^[24] He wrote a book onMax Weber's political ideas and examined their relevance to the then-present of 1966.^[25]

• Minderheitsregierung in Großbritannien. Verfassungsrechtliche Untersuchungen zur neuesten Entwicklung des britischen Parlamentarismus. Munich: Schweitzer, 1925, first in:Annalen des deutschen Reiches 56/58 (1923/1925).
• Erscheinungsformen der Verfassungsänderung. Verfassungsrechtsdogmatische Untersuchungen zu Artikel 76 der Reichsverfassung, Tübingen 1931.
• Hitler's Germany: The Nazi Background to War New York, MacMillan, 1939.
• Political power and the governmental process. Chicago, The University of Chicago Press, 1957.
• Verfassungsrecht und Verfassungspraxis der Vereinigten Staaten Berlin, Springer, 1959.
• Staatsrecht und Staatspraxis Großbritanniens Berlin, Springer-Verlag, 1967, 2 Vols.
• Kooptation und Zuwahl. Über die autonome Bildung privilegierter Gruppen. Alfred Metzner Verlag, Frankfurt am Main 1973,ISBN 3-7875-5230-8.
• Des Lebens Überfluß. Erinnerungen eines ausgewanderten Juristen. Herausgegeben von Oliver Lepsius, Robert Chr. van Ooyen und Frank Schale, Mohr Siebeck, Tübingen 2023, ISBN 978-3-16-162509-1.
• Apologie des liberalen Staatsdenkens. Herausgegeben von Michael Kubitscheck, Klostermann Verlag, Frankfurt am Main 2024, ISBN 978-3-465-04655-4.

• Constitutional law

• Karl Loewenstein Papers | Amherst College - ArchivesSpace