Nazi Law today

I wrote the note below to others.  It has some relevance here since Carl
Schmitt's influence continues, whether for good or ill.  In the
correspondence of Arnaldo Momigliano with Moses Finley there comes a moment
when both scholars comment with anxiety on a colleague who was applying
Schmitt in his own work.
That good people use Schmitt today is fascinating.  He was an acute though
cruel analyst.  (Not irrelevant that he counted Thomas Hobbes as a key
influence.)

Dan


---------- Forwarded message ---------
From: DANIEL P. Tompkins <[email protected]>
Date: Thu, Feb 14, 2019 at 11:35 AM
Subject: Nazi Law
To: dg <[email protected]>
Cc: [email protected] <
[email protected]>


I just came across the attached review [will send to anyone who asks] of
Jens Meierhenrich, *Remnants of the Rechtsstaat: An Ethnography of Nazi Law
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fglobal.oup.com%2Facademic%2Fproduct%2Fthe-remnants-of-the-rechtsstaat-9780198814412%3Fcc%3Dus%26lang%3Den%26&amp;data=02%7C01%7CCLASSICS-L%40lsv.uky.edu%7Cb1123d16405a4ceb199608d6929ea380%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857607494432899&amp;sdata=Jg24F%2F0s4XNpNYuKVOJ%2FeaAn7q7wGQbS5MLXLFc%2FnKQ%3D&amp;reserved=0>
*(Oxford University Press, 2018).  By Benjamin Schupmann.  Looking quickly
into the book, I can say it provides a rich overview of the dispute among
German lawyers under Hitler over "the value of legality."   For historians
this becomes a dispute between Franz Neumann's widely acclaimed book,
*Behemoth*, which portrayed the Nazi regime as "chaotic," and
Fraenkel's *Double
State*, which argued that a version of the rule of law prevailed. Fraenkel
was less well known, but is favored by the author here, who cites Judith
Shklar as an ally.

For the author, the "normative state" or *Rechtstaat *survived in
*"*diminished,
rudimentary" form throughout the regime.

One example of the "rule of law":

Defense attorneys, wielding remnants of formal *Rechtsstaat *("legal
state") legality, were able to help clients avoid the terror of
concentration camps by winning them longer prison sentences for ordinary
crimes

The reviewer's summary:

Meierhenrich analyzes how the prerogative state [i.e. giving free rein to
the rule] undermines the normative state in three key ways:

by transgressing into the domain of the formal rule of law regularly, by
restricting the authority of the normative state outright (for example,

by limiting judicial oversight of the police), and

by infecting the normative state with its own deformalized legal culture
(pp. 182–86).

In these ways, the prerogative state gradually erodes the foundations of
the normative state.


Two factors contributed to the dualism of the Nazi state. On the one hand,
without technically rational law, some institutions like bureaucratic
administration, private property, and private capitalism would be
impossible to sustain. On the other hand, by being dependent on these
institutions, the Nazi state could not entirely eschew the formal rule of
law.


The Nazi legal theorist Carl Schmitt, who remains influential to this day,
emerges as a repugnant individual whose theories influenced many.  From the
book:

Fraenkel turned Carl Schmitt’s critique of liberalism, much of which he
admired, on its head. Instead of seeing the institution of parliament as
mere problem, he saw in it potential, a solution even to Germany’s woes.


Schmitt himself had, already in 1922, expressed things in his typically
forceful way:


“Like every order, the legal order rests on a decision and not on a norm.”

Auch die Rechtsordnung, wie jede Ordnung, beruht auf einer Entscheidung und
nicht auf eine Norm.


A nice example of Schmitt's "decisionistic" orientation.
("Dezisionismus!").  (In his *Political Theology*, 1922, Schmitt cites
Thomas Hobbes as a role model.)

The topic is fascinating, and goes well beyond the 1930s.  I thought at
once of Glaukos Clerides' use of British law in Cyprus against the Empire's
efforts to suppress locals.  The final chapter considers the "rule of law"
in authoritarian, "electoral authoritarian," *herrenvolk *democracies and
other dual regimes today, mentioning Syria, Singapore and Hong Kong; he
also comments on jurists' debates of "human rights" and the "separation of
law from morals," with reference to H.L.A. Hart
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FHart%25E2%2580%2593Fuller_debate&amp;data=02%7C01%7CCLASSICS-L%40lsv.uky.edu%7Cb1123d16405a4ceb199608d6929ea380%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857607494432899&amp;sdata=i0La0xCLuzKX%2F9hWk5p8t%2FmHfhykpAvkkNbcpy9I%2F0I%3D&amp;reserved=0>and others.

And we all remember when Jean Kirkpatrick and Elliot Abrams were busy
protecting brutal authoritarian regimes in Central America.

Reading further in the book, I'm struck by the author's hostility to
Neumann.

Dan