By William E. Scheuerman
Winner, 1996 Elaine and David Spitz ebook Prize for the easiest booklet onliberal and democratic idea, convention for the learn of PoliticalThought. Winner, 1994 First booklet Prize, Foundations of PoliticalThought equipped part, American Political technological know-how Association.Between the Norm and the Exception contributes ancient perception to the continued debate over the way forward for the guideline of legislations in welfare-state capitalist democracies. The center factor is whether society can provide its voters welfare-state promises and nonetheless protect the liberal imaginative and prescient of a norm-based criminal approach. Franz Neumann and Otto Kirchheimer, in an age ruled via Hitler and Stalin, sought to set up a valid theoretical foundation for the "rule of law" perfect. As an end result in their refined realizing of the liberal political culture, their writings recommend a theoretical ignored chance, another severe concept that may usefully be utilized in knowing (and probably countering) the modern pattern towards the deformalization of legislations.
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Extra info for Between the Norm and the Exception: The Frankfurt School and the Rule of Law
If the greatness of the classical socialist political tradition derives from its aspiration to complete the unfinished and characteristically modern quest for universal autonomy, for the young Kirchheimer it becomes little more than a violent struggle for a degree of social and moral uniformity undesirable under contemporary conditions. Political violence might conceivably become constant—and the apex of political experience. This suggests that an identifiably totalitarian system of law is latent in the Schmittian concept of the political—or at least the young Kirchheimer's careful exegesis of the legal implications of his teacher's theory implies such an interpretation.
In subordinating the legal order to the everchanging dictates of a political elite, law in this model is directly subjected to the particularities of the concrete dynamics of friend/foe politics and the irregular decisions of a narrowly based political elite. Embodying the logic of Schmittian decisionism, legality can no longer claim to be clearly distinct from facticity. 61 It is not clear from this unfortunate essay that the twentythreeyearold Kirchheimer appreciated the full implications of his vision of an alternative socialist legal order.
Socialism should dump the Enlightenment heritage from which classical Marxism drew its normative energies; Marx's real achievement stemmed from his acknowledgment of the existential intensity of classbased friend/foe antagonisms. Where could authority be adequately centralized so as to take on the exigencies of the emergency? Socialists should instead prepare themselves to wage a revolutionary struggle with the aim of establishing a homogeneous socialism alone capable of guaranteeing a stable and genuinely political regime.