Ernst Forsthoff
Encyclopedia
Ernst Forsthoff was a German scholar of constitutional law
and a leading theorist of administrative law
.
in 1935, at the Albertina in Königsberg
in 1936 and at the University of Vienna
in 1942. There he was forbidden to exercise his teaching post by the Gestapo
until 1943, when he was called to the University of Heidelberg.
After the war, he was dismissed from governmental service by order of the American military government, but was able to resume teaching in 1952. Forsthoff was a leading author of the Constitution of Cyprus
and was president of the Supreme Constitutional Court of Cyprus from 1960 to 1963.
, Karl Larenz, Theodor Maunz and Herbert Krüger who endeavoured to legitimise the Nazi regime through their writings. Forsthoff's 1933 paper Der totale Staat (The Total State) advocated a broad understanding of the Führerprinzip
as an exclusive and unlimited power of command over all subjects of the state. He himself was unwilling to submit fully to the Nazi state, however, and fell in disfavour with the authorities during the war. In a seminal 1938 paper, he coined the term Daseinsvorsorge, introducing the concept of public services
to German legal thinking.
After the war, although now supporting the democratic Rechtsstaat
(which he understood as opposed to the Sozialstaat advocated by the Left), Forsthoff continued to support a powerful state subject to only limited judicial constraints and rejected the notion of constitutional rights as a normative framework of society.
Forsthoff was among the few postwar European scholars who maintained adherence to the philosophy of strict legal positivism
. His influential textbook Lehrbuch des Verwaltungsrechts (1950) also emphasized the comprehensive responsibility of the state for society, preferring to focus on the functioning of government rather than on its possible failure.
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
and a leading theorist of administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
.
Life
Forsthoff, the son of pastor Heinrich Forsthoff, was called to teach law at the Johann Wolfgang Goethe-Universität in Frankfurt am Main 1933, at the University of HamburgUniversity of Hamburg
The University of Hamburg is a university in Hamburg, Germany. It was founded on 28 March 1919 by Wilhelm Stern and others. It grew out of the previous Allgemeines Vorlesungswesen and the Kolonialinstitut as well as the Akademisches Gymnasium. There are around 38,000 students as of the start of...
in 1935, at the Albertina in Königsberg
Königsberg
Königsberg was the capital of East Prussia from the Late Middle Ages until 1945 as well as the northernmost and easternmost German city with 286,666 inhabitants . Due to the multicultural society in and around the city, there are several local names for it...
in 1936 and at the University of Vienna
University of Vienna
The University of Vienna is a public university located in Vienna, Austria. It was founded by Duke Rudolph IV in 1365 and is the oldest university in the German-speaking world...
in 1942. There he was forbidden to exercise his teaching post by the Gestapo
Gestapo
The Gestapo was the official secret police of Nazi Germany. Beginning on 20 April 1934, it was under the administration of the SS leader Heinrich Himmler in his position as Chief of German Police...
until 1943, when he was called to the University of Heidelberg.
After the war, he was dismissed from governmental service by order of the American military government, but was able to resume teaching in 1952. Forsthoff was a leading author of the Constitution of Cyprus
Constitution of Cyprus
The Constitution of Cyprus is a document, ratified on August 16, 1960, that serves as the framework for the Cypriot government. It was drafted after the country won its independence in 1959....
and was president of the Supreme Constitutional Court of Cyprus from 1960 to 1963.
Thought
In the 1930s, Forsthoff was among the jurists such as Carl SchmittCarl Schmitt
Carl Schmitt was a German jurist, philosopher, political theorist, and professor of law.Schmitt published several essays, influential in the 20th century and beyond, on the mentalities that surround the effective wielding of political power...
, Karl Larenz, Theodor Maunz and Herbert Krüger who endeavoured to legitimise the Nazi regime through their writings. Forsthoff's 1933 paper Der totale Staat (The Total State) advocated a broad understanding of the Führerprinzip
Führerprinzip
The Führerprinzip , German for "leader principle", prescribes the fundamental basis of political authority in the governmental structures of the Third Reich...
as an exclusive and unlimited power of command over all subjects of the state. He himself was unwilling to submit fully to the Nazi state, however, and fell in disfavour with the authorities during the war. In a seminal 1938 paper, he coined the term Daseinsvorsorge, introducing the concept of public services
Public services
Public services is a term usually used to mean services provided by government to its citizens, either directly or by financing private provision of services. The term is associated with a social consensus that certain services should be available to all, regardless of income...
to German legal thinking.
After the war, although now supporting the democratic Rechtsstaat
Rechtsstaat
Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "legal state", "state of law", "state of justice", or "state of rights"...
(which he understood as opposed to the Sozialstaat advocated by the Left), Forsthoff continued to support a powerful state subject to only limited judicial constraints and rejected the notion of constitutional rights as a normative framework of society.
Forsthoff was among the few postwar European scholars who maintained adherence to the philosophy of strict legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
. His influential textbook Lehrbuch des Verwaltungsrechts (1950) also emphasized the comprehensive responsibility of the state for society, preferring to focus on the functioning of government rather than on its possible failure.
Partial bibliography
- Der totale Staat, Hamburg 1933.
- Verfassungsprobleme des Sozialstaates, Münster 1954.
- als Herausgeber: Rechtsstaatlichkeit und Sozialstaatlichkeit, Darmstadt 1968.
- Der Staat der Industriegesellschaft, München 1971.
- Lehrbuch des Verwaltungsrechts. Bd. I: Allgemeiner Teil, München, 1st ed. 1950, 10th ed. 1973.
Further reading
- Meinel, Florian: Ernst Forsthoff and the Intellectual History of German Administrative Law, 8 German Law Journal, No. 8 (2007), pp. 785-799.
- Roman Schnur (Hg.): Festschrift für Ernst Forsthoff zum 70. Geburtstag. München: C.H. Beck'sche Verlagsbuchhandlung, 1972. 2. Aufl. 1974; ISBN 3-406-05661-X.
- Gerhard MauzGerhard MauzGerhard Mauz was a German journalist and correspondent for judicial processes.He studied psychology, psychopathology and philosophy; he began his career at Die Welt...
: Ernst Forsthoff und andere..., in: Karl Corino (Hrsg.): Intellektuelle im Bann des Nationalsozialismus, Hamburg 1980, S. 193-203; ISBN 3-455-01020-2. - Christian Schütte: Progressive Verwaltungsrechtswissenschaft auf konservativer Grundlage: Zur Verwaltungsrechtslehre Ernst Forsthoffs. Berlin: Verlag Duncker & Humblot 2006, ISBN 978-3-428-11913-4.
- Briefwechsel Ernst Forsthoff - Carl Schmitt (1926-1974). Hrsg. von Angela Reinthal, Reinhard Mußgnug & Dorothee Mußgnug, unter Mitarbeit von Gerd Giesler und Jürgen Tröger. Berlin: Akademie Verlag 2007, ISBN 978-3-05-003535-2;
- Bernd Rüthers: Überlebende und überlebte Vergangenheiten - Zwei Starjuristen einer Diktatur unter sich, in: myops - Berichte aus der Welt des Rechts, Heft 4 (2008), S. 67-75.