Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Studies in Contemporary German Social Thought)
William E. Scheuerman
Language: English
Pages: 344
ISBN: 0262193515
Format: PDF / Kindle (mobi) / ePub
Winner, 1994, First Book Award given by the American Political Science Association Foundations of Political Theory Section. and Winner, 1994, of the Spitz Prize sponsored by the Conference for the Study of Political Thought
Winner, 1996 Elaine and David Spitz Book Prize for the best book on liberal and democratic theory, Conference for the Study of Political Thought. Winner, 1994 First Book Prize, Foundations of Political Thought Organized Section, American Political Science Association.
Between the Norm and the Exception contributes historical insight to the ongoing debate over the future of the rule of law in welfare-state capitalist democracies. The core issue is whether or not society can offer its citizens welfare-state guarantees and still preserve the liberal vision of a norm-based legal system. Franz Neumann and Otto Kirchheimer, in an age dominated by Hitler and Stalin, sought to establish a sound theoretical basis for the "rule of law" ideal. As an outcome of their sophisticated understanding of the liberal political tradition, their writings suggest a theoretical missed opportunity, an alternative critical theory that might usefully be applied in understanding (and perhaps countering) the contemporary trend toward the deformalization of law.
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As I will try to show in this chapter, this failure to break more radically with Schmitt had fatal consequences for Neumann's attempt during Weimar's final years to develop a defensible critical vision of the rule of law. 1— Toward a Postbourgeois Rule of Law: Forgotten Voices of the Weimar Republic In later years, Neumann described the idea of a social rule of law, developed in partnership with Hermann Heller as a direct response to Schmitt's and Kirchheimer's.
Decreases continuously."46 Neumann made many similar observations in his Weimar writings, and Page 63 his method is again reminiscent of Karl Renner's emphasis on the "functional transformations" undergone by legal institutions amidst farreaching social changes, but crucial here is the fact that Neumann abandons any real interest in developing a conception of the rule of law more in tune with the requirements of mass democracy.
Function." When the legislator need not act according to general norms—if he "can issue individual commands, if he can arrest this or that man, if he can confiscate this or that property''32—the most basic measure of legal security is badly undermined. In a second authoritarian legalist path, whose theoretical contours Neumann locates in Kant's tensionridden political philosophy, natural law has similarly vanished, but.
Function which is expressed in Rousseau's theory. . . . All three functions are significant and not only, as is maintained by the critics of liberalism, that of rendering economic exchange processes calculable."58 Because fullscale social democracy might be able to reestablish the hegemony of liberal general law, the proliferation of.
Fascist law, Neumann thinks he can counter Schmitt's decisionism by trying to salvage liberal general law. Schmitt's valorization of the (normless, particular) exception can be attacked by means of a defense of the (general) legal norm. 44 But Neumann thereby underplays the fact that even an individual law partakes of modern political thought's universalistic elements when it is founded on a relatively broadbased process of democratic will formation or when it broadens the openness and.