Surrealpolitik: The Rule of Law Under Siege

Authors: Otto Kirchheimer, Franz Neumann

Berkeley, CA: University of California Press (1996)

Quick Summary

Neumann and Kirchheimer established an alternative tradition of Critical Legal Studies (CLS), defending certain traditional components of the ideal of the rule of law. Alternative in the sense that it was opposed to the radical deconstructionist side of CLS which held that the traditional quest for determinate legal rules is illusory and tends to be indeterminate, privatistic, and anti-egalitarian in practice. "Their nuanced interpretation of the achievements of the modern legal tradition conflicted with the increasingly apocalyptic theorizing of the Frankfurt School's main representatives during the late 1930s and early '40s." Right-wing legal theorist Carl Schmitt led the emerging Nazi legal order echoing the radical left deconstructionists in calling the liberal ideals of determinate law a mere myth and proclaimed the death of the basic tenets of universalistic liberal jurisprudence, "and he and his allies then relied on this claim to help justify the situation-oriented, highly arbitrary structure of Nazi law." So Kirchheimer and Neumann are kind of against the left-wing deconstructionists, against the Nazis, and also against the mainstream of the Frankfurt School, in sticking up for the good bits of the liberal ideal of the rule of law.


There are 7 quotes currently associated with this book.

[Kirchheimer] In any event, the replacement of the legislative functions of Parliament with the federal president's emergency decree-based rule means that the concept of legality has been robbed of its previous meaning. We are not dealing here with a set of passing incidents. Rather, rule by emergency decree--and thus the fusion of legislative and executive authority--has taken on a permanent character in such a manner so as to leave no room for the core element of the principle of legality, the scrutiny of the administration against the yardstick of the law. So when there is talk today about the legality of government action as a way of contrasting its actions to those of "illegal" oppositional groups, obviously an altered version of the traditional conceptualization of legality is inherent in this discourse. (page 48)
Tags: [Fascism, Rationality]
[Kirchheimer] The emergency not characterized by legality but by legitimacy, an appeal to the indisputable correctness of its actions and goals. Essential to the concept of legality is not simply the fact that power has been acquired by legal means, but, more important, that it be exercised in a legal fashion. Nothing makes the shift in accent from a political system based on legality to one based on an appeal to legitimacy more clear than Chancellor Brüning's now famous comment: "If you gained power by legal means but then declared that you intended to disregard legal boundaries, that cannot be considered legality." (page 49)
Tags: [Fascism, Rationality]
[Neumann] All three functions of the generality of laws -- obscuring the domination of the bourgeoisie, rendering the economic system calculable, and guaranteeing a minimum of liberty and equality -- are of decisive importance and not just the second of these functions, as the proponents of the totalitarian state claim. If one views -- as, for example, Carl Schmitt does -- the generality of laws as a means designed to satisfy the requirements of free competition, then the conclusion is obvious that with the termination of free competition and its replacement by organized state capitalism, the general law, the independence of judges, and the separation of powers will also disappear and that the true law then consists either in the Führer's command or the general principle (Generalklauseln). (page 118)
Tags: [Fascism, Rationality]
[Neumann] Voltaire's statement that freedom means dependence on nothing save law refers only to general laws. If the sovereign is permitted to decree individual measures, to arrest this man or that one, to confiscate this or that piece of property, then the independence of the judge is extinguished. The judge who has to execute such individual measures becomes a mere policeman...Equality before the law is, to be sure, "formal," that is, negative. But Hegel, who clearly perceived the purely formal-negative nature of liberty, already warned of the consequences of discarding it. (page 118)
Tags: [Fascism, Universality, Rationality]
[Kirchheimer] Whereas the rule of law once represented a quest for objectification by means of legal guaranties and the formulation of clear standards, an opposing ideal is now transformed into the quintessence of Adolf Hitler's German rule of law. Guarantees of justice are no longer located in the statute, but in the extent to which the individual decision accords with National Socialist thinking. (page 144)
Tags: [Fascism, Rationality]
[Kirchheimer] It is difficult to consider it a moral victory for National Socialism that it has hammered into people's heads the idea that those with different political views are "subhuman." (page 150)
Tags: [Fascism, Rationality]
[Kirchheimer] The scope of political offenses has been expanded beyond all limits. Any activity of a political, social, or religious nature that is not expressly condoned by the government can be punished with a severe prison sentence or the death penalty. Judicial decision makers give themselves the widest possible freedom in the interpretation of criminal regulations that already are formulated rather broadly...Another rather idiosyncratic feature of this type of legislation makes it possible to punish undesirable expressions of opinion even when their truthfulness can be demonstrated...Rather than undertaking a nonpartisan examination of the evidence of the case, the regime's view is automatically assumed to be truthful, and everything else is dismissed as slanderous claims that distort the truth. (page 151)
Tags: [Fascism, Rationality]