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No Law, No Justice: The Critical Theory of Franz Neumann and Otto Kirchheimer

John Abromeit

William Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law, Cambridge, Massachusetts: MIT Press, 1994. pp. 330.

William Scheuerman has dedicated himself to the task of demonstrating the contemporary relevance of the work of Franz Neumann and Otto Kirchheimer, the two legal theorists associated with the first generation of the Frankfurt School. Although Neumann's massive study of Nazi Germany, Behemoth, gained widespread recognition immediately after its publication in 1942, since then his work, and that of his colleague Otto Kirchheimer, have fallen into relative obscurity, while attention has been lavished upon the work of their now much better known colleagues from the Institute for Social Research, Max Horkheimer, Theodor Adorno, Walter Benjamin and Herbert Marcuse. Scheuerman argues that a renewed assessment of Neumann and Kirchheimer is long overdue for several reasons. First and foremost because they can help us understand the causes and implications of the transformation of law in the twentieth century welfare state. Second, because Neumann and Kirchheimer offer a version of critical theory allegedly superior to that of Horkheimer, Adorno and Marcuse, particularly in their efforts to draw upon the progressive features of classical liberalism and their willingness to take questions of democracy more seriously than their Institute colleagues. Finally, because they both developed sophisticated critiques of the Nazi's leading legal theorist, Carl Schmitt, which are much needed to counter the renaissance Schmitt's work is currently enjoying on both sides of the Atlantic.

Scheuerman structures his study as a chronological exposition of Neumann's and Kirchheimer's intellectual development. Since both men attended Carl Schmitt's lectures in Berlin in the thirties and were deeply influenced by him, Scheuerman begins with a brief look at some of Schmitt's main ideas, including his rejection of parliamentary debate and the rule of law in favor of a decisionistic concept of sovereignty, his reduction of the complexities of political compromise to a rigid friend/foe dichotomy, and his glorification of violence and ethnic homogeneity. Scheuerman then shows how Kirchheimer drew upon Schmitt's concept of the political to buttress his own Leninist critique of Weimar. Whereas Kirchheimer belonged to the left-wing of the SPD during the late twenties and early thirties, Neumann initially aligned himself with the reformists in the party, arguing that the Weimar constitution had laid the theoretical foundations for a "social rule of law," but that the monopoly capitalist status quo prevented its realization. Only after the collapse of Weimar did Neumann temporarily abandon his constitutionalist position, conceding that Kircheimer's call for militant action against the right wing "foe" may have been the only way to prevent the Nazi debacle. Kirchheimer had the opposite reaction to the collapse of the republic; he abandoned Lenin and explicitly criticized Schmitt's call for homogeneity, arguing that Weimar had failed not because of social and political fragmentation, but because most of the middle class had chosen to abandon its democratic ideals rather than consent to substantial social reforms. In his posthumous defense of Weimar, Kirchheimer maintained that parliament, despite its serious shortcomings, provided the best forum for diverse social groups to articulate their interests. Scheuerman rounds out the first half of his study with an examination of Neumann's critical reappraisal of Schmitt in his work at the Institute for Social Research between 1936 and 1942. Neumann developed a social democratic reinterpretation of Max Weber's theory of modern law, to counter Schmitt's authoritarian appropriation of Weber. But according to Scheuerman, Neumann still remained beholden to some of Schmitt's central categories, particularly his pre-modern concept of homogeneity.

Scheuerman opens the second half of his study with an examination of Neumann's Behemoth. He focuses in particular on Neumann's analysis of the Nazi's deconstruction of universalistic legal norms and Neumann's attempt to show that capitalism and deformalized law can exist splendidly together, despite Max Weber's arguments to the contrary. Scheuerman also poses Neumann's emphasis on the contradictory and chaotic elements of National Socialist regime as an alternative to his Institute colleague Frederick Pollock's argument that it represented a form of monolithic state capitalism. According to Scheuerman, Pollock's analysis, which was largely accepted by Horkheimer and Adorno, led to political defeatism that haunted the three of them the rest of their lives, whereas Neumann's led to a reassessment of potentially radical aspects of classical liberalism, a program that he argues remains relevant to the present today. Scheuerman shows that Kirchheimer's work during the war, which consisted of a series of studies on the history of criminal law and a critique the widespread tendency in interwar Europe to subordinate the parliament to the executive, also centered upon recovering the critical heritage of the Enlightenment. In the last two chapters Scheuerman examines Neumann's and Kirchheimer's post-war work. After an interesting discussion of Neumann's work on fear and politics, Scheuerman goes on to demonstrate that the mature Neumann altered his stance on several key aspects of his earlier theory. He finally distanced himself from his earlier pre-modern concept of political homogeneity, a move that Scheuerman greets, and he increasingly pointed to the limits of legalistic thinking, a change that Scheuerman criticizes. Scheuerman contrasts Neumann's increased tolerance for deformalized law with Kirchheimer's insistence upon more explicit social regulations. He argues that Kirchheimer's analysis of postwar legal order proved that welfare state security does not necessitate ambiguous, easily manipulable laws. Scheuerman brings his study to a close with a discussion of the depoliticization of the public sphere -- signaled by the increasing replacement of the citizen by the consumer in the fifties -- that Kirchheimer repeatedly addressed in his later writings.

Throughout his exposition of Neumann's and Kirchheimer's work Scheuerman points out the aspects of their thought that he believes are most relevant for contemporary problems. Foremost among these is the reassertion of the rule of formal law as a potent weapon against current capitalist excesses, including the widespread attacks on the welfare state. Scheuerman argues that Kirchheimer and Neumann have pointed the way beyond the abstract contradiction between social legislation and formal law posited by critics and defenders of the welfare state; he cites New Deal depression legislation in the U.S. as an example that the two need not be mutually exclusive. Scheuerman is convinced that the current deformalization of law could have serious consequences. As he puts it, "If unchecked, the decay of the rule of law threatens to leave us at the mercy of a highly discretionary -- and potentially arbitrary -- situation-specific mode of law akin to the 'rule of the exception' suggested by Carl Schmitt's authoritarian political theory in the twenties and thirties" (245). Thus the current revival of Schmitt is not incidental, according to Scheuerman; it reflects larger, worrisome social trends.

Scheuerman's careful exposition of Kirchheimer and Neumann is informative, his defense of anti-capitalist rule of the law convincing and his critique of Schmitt timely. Only Scheuerman's assertion that Neumann and Kirchheimer developed a version of critical theory "superior" to that of Horkheimer, Adorno, or Marcuse strikes one as unnecessary. While Scheuerman is certainly justified in claiming that there is a liberal and democratic deficit in the work of his Institute colleagues -- "je demokratischer, desto schlechter" as Jazz aficionado Hektor Rottweiler once put it -- it was precisely their uncompromising stance against capitalist ideology, including two of its pillars, liberalism and democracy, that lent much of their work its cutting edge. Scheuerman is of course justified in emphasizing that they are not merely capitalist ideology, and his excavation of Kirchheimer's and Neumann's work points the way to a negation of bourgeois liberalism and administered mass democracy that is determinate, not merely abstract. But as Scheuerman himself demonstrates, Neumann and Kirchheimer came to appreciation of many their colleagues central concerns -- one thinks of Marcuse's philosophical grounding of the principle of transcendence, which Neumann used to criticize Schmitt, or Adorno's trenchant studies in social psychology, a field whose importance Kirchheimer recognized in his postwar studies. So while Kirchheimer's and Neumann's work certainly deserves renewed attention, such a reassessment is necessary to complement, not replace the work of their Institute colleagues.

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