Re: Nazi Law today

I should add:  Moses Finley was a close friend of Franz Neumann, as was
Daniel Bell, whom I interviewed for my work on Finley.  Neumann, Marcuse
and Kirchheimer constituted one of the most praised intelligence offices
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fpress.princeton.edu%2Ftitles%2F9955.html&amp;data=02%7C01%7CCLASSICS-L%40lsv.uky.edu%7Cd2d85bc3064d4c6e8a2f08d692a14ff8%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857618863021396&amp;sdata=J%2FGeNzwOTt7CjXKNLUE%2BVX6RB1AixXTdVwUw0y2v%2Fus%3D&amp;reserved=0> in OSS during WWII.  Neumann
was an important legal advisor at Nuremberg, then spent several fruitless
months trying to organize non-Communist but socialist labor unions in
postwar Germany (not a topic I know well).

Dan

On Thu, Feb 14, 2019 at 12:11 PM John Ayer <[email protected]> wrote:

> 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%7Cd2d85bc3064d4c6e8a2f08d692a14ff8%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857618863021396&amp;sdata=6UC1KFWf%2BSJxjS%2FSxOLZajdIQePFxW5dEvzczoM1KD4%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%7Cd2d85bc3064d4c6e8a2f08d692a14ff8%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C636857618863021396&amp;sdata=JYxwL6mBfV9zrhCgSbrLAOiLDl5YLeGicFbXmeRV9tw%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
>