弗里茨.诺依曼和德国民主法治国的构想

德国公法学家和政治学家弗里茨?诺依曼是早期法兰克福学派的外围成员。他亲历魏玛宪政危机、纳粹上台以及二战后德国政治生活重建等重大政治事件，在理论上游走于德国公法学、马克思主义和民主法治国等观念之间。他对晚期资本主义社会的分析与批判、对民主法治国观念的构想，既联系又区别于当时学界的其他学者。诺依曼探讨了以下三个递进性问题：（1）魏玛共和国为什么会失败？（2）纳粹政权的本质是什么？（3）二战之后如何重建德国的政治生活？他也由此实现了德国法治国观念迈向民主法治国观念的关键一步，并为联邦德国的二战后重建提供了基本政治框架。

Franz Neumann and the Idea of German Democratic Rechtsstaat

Franz Neumann (1900-1954), a German public law and political theorist, is a peripheral member of the Early Frankfurt School. The reasons of his peripheral membership of the Early Frankfurt School are not only that Neumann has never been in the core circle of the Institute for Social Research, which led by Max Horkheimer and Theodor Adorno, but also that he did his main research in the clues of the German Rechtsstaat Tradition, which is not in the Early Frankfurt School's central project. The importance of Neumann and his research is that he is between Carl Schmitt (and also Hermann Heller), and Jürgen Habermas. In other words, his position could be viewed as a bridge between the Crisis of Weimar Constitutionalism and the post-war reconstruction of the German Rechtsstaat. If we try to understand the development of the German Rechtsstaat Tradition, certainly and absolutely, we could not ignore or look down on Neumann and his research. On the contrary, if we put Neumann and his research in the framework of Early Frankfurt School, not of the German Rechtsstaat Tradition, as a result, we would not understand the background, development and influence of Neumann and his research. It is very pitiful that Neumann's most productive years is in a period of political turmoil. In general, he experienced the Crisis of Weimar Constitutionalism, the rise of Nazi and the reconstruction of Federal Republic of Germany's political life after the World War Ⅱ. However, it is lucky that he did a lot of theoretical and practical works with great enthusiasm in exile. Generally speaking, his thought is among German public law, Marxism and Democratic Rechtsstaat. His analysis and critique of the Late Capitalism, and his idea of Democratic Rechtsstaat are related to and also different from his contemporary scholars. Specifically, this paper tries to reconfigure Neumann's thought, by summarizing and supposing these three questions, what are (1) Why did Weimar Republic fail, (2) What is the nature of Nazi regime, and (3) How to reconstruct the Federal Republic of Germany's political life after the World War Ⅱ. Obviously, although Neumann did a lot of practical works, he is still a theorist after all, and he resolved these three practical questions above in a theoretical way. In brief, he criticized the German Positivism Rechtsstaat in the development of the German Rechtsstaat, interpreted the nature of Nazi regime is Totalitarian Monopoly Capitalism (it is not State Capitalism, which is given by another theorist in the Early Frankfurt School, Friedrich Pollock), and presented the idea of Democratic Rechtsstaat, which is different from the Anglo-Saxon Democracy. Neumann developed his thought, took the key step, which is toward Democratic Rechtsstaat in the development of the German Rechtsstaat, and also presented a basic political framework for the Federal Republic of Germany. Furthermore, Neumann could be simply marked with these three marks below, which are ″ anti-Schmitt's Schmittian,″ ″anti-Orthodox Marxism's Marxist″ and ″anti-Capitalist Democracy's Democrat″. These three marks could not only reveal his three main theoretical origins, but also sketch the core figure of Neumann's thought, namely, what is Neumann's idea of Democratic Rechtsstaat. It is noteworthy that his idea of Democratic Rechtsstaat sublates both the German Positivism Rechtsstaat and the Anglo-Saxon Democracy. In other words, his idea of Democratic Rechtsstaat could be viewed as a general solution (a synthesis) to the problems of modern society. Obviously, we could say that his idea of Democratic Rechtsstaat indicated an approach, which overcame the other narrow approaches. In a very short conclusion, it is very worth pointing out that Neumann took the key step, which is toward Democratic Rechtsstaat in the development of the German Rechtsstaat Tradition, both theoretically and practically. It is misleading that the existing researches about Neumann (especially in China), however, ignore this key step.