Re: Nazi Law today

This may be of interest.  I heard of both Schmitt and Neumann in my late days, don’t think I ever read either one. 

Jack Ayer
Professor Emeritus-Law
UC Davis

> On Feb 14, 2019, at 9:05 AM, DANIEL P. Tompkins <[email protected]> wrote:
> 
> 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%7Cbdf0d7aba7fa4c1b25a908d6929f5e4b%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857610517160158&amp;sdata=tAxrDUAmQBBz0ks2tSX3uZP08xcpvbq5A285mIu55Hk%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%7Cbdf0d7aba7fa4c1b25a908d6929f5e4b%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857610517170171&amp;sdata=wQHGYeKKs8q%2FPapYHBpBQM%2BVyoUga53J51H5wvaIlbg%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