Tuesday, January 12, 2016

Law Talk: Finding the Rule of Law Among German Émigré Intellectuals in Wartime

[by Anne Kornhauser]

How did a group of German émigré intellectuals end up in a book about American liberalism and the rise of the leviathan state? As mentioned in my previous post, my book identifies three areas of concern among liberals who supported the newly enlarged, executive-centered, bureaucratized state but who did so with reservations about the absence of legitimating principles and the direction in which the state might be heading. The areas under threat were democracy, the rule of law, and individual autonomy. Here I will focus on the second, the rule of law.

As Joanna Grisinger superbly shows, the campaign to shore up weakened legal institutions turned technical and piecemeal in the 1940s. In legal thought, meanwhile, most legal realists were dabbling in a sort of eclecticism that lent itself to specific social and political reforms and viewed law as merely instrumental to these goals. By contrast, a group of German émigré intellectuals, who were trained in law and who advised the U.S. government on its strategy to defeat the Nazis and to reconstruct the German state, thought in broad terms about the erosion of legal norms in the wake of the administrative state at war.

There are good reasons why the Germans took up the mantle of what I call "legalism" in the 1940s, but before delineating them let me take a step back to comment on the very presence of the Germans in my book about American liberalism and its state. Although this was less the case when I started this project, German-born intellectuals have been enjoying a scholarly renaissance of late, not least among historians. No small part of this resurgence can be attributed to an outburst of scholarship on Henry Kissinger alone. The reasons for this are rather obvious and I will not rehearse them here.

This revivification of German émigré intellectuals goes well beyond the hoopla surrounding Kissinger. Intellectual and legal historians have brought newfound attention to a larger group of "foreign policy intellectuals," as they ride the wave of transnational historiography and seek to understand what lay behind the postwar assertion of U.S. power. These scholars trace the growth and transformation of the national security state in which German émigrés played a significant, if underappreciated, role. One notable multidisciplinary effort has focused on the concept of "militant democracy," which, put crudely, claims radical limitations on democracy to prevent a threat to its existence. (This concept will be the subject of my next post.)

Faced with a state determined to eradicate all vestiges of fascism and to prevent its resurrection, German legalist émigrés, including Arnold Brecht, Carl Friedrich, Otto Kirchheimer, Karl Loewenstein, and Franz Neumann, among others, turned to the rule of law ideal, as they understood it. Broadly, this ideal valorized the constraining influence of law on political power--including democracy itself in some instances--and its concomitant protection of the individual. In my book, I use "legalism" to describe this set of ideas, as it did not follow precisely either the German concept of the Rechtsstaat or the Diceyean idea of the rule of law.

Legalism was useful for thinking about the state in wartime because it defined legitimate state action under the simultaneous conditions of great duress and maximal power. The state was constrained by circumstances alone. In the legalist view, law had distinct properties, such as generality, impartiality, and non-retroactivity, which would help limit arbitrary power and ensure both procedural and substantive justice for the individual. This set of ideas did not map neatly onto any extant American legal language. Yet if one looked at academic writings, including law journals, and occasionally the popular press, not to mention the documents they wrote for the OSS, concern for legality was at the forefront of the émigrés' thinking about postwar reconstruction and justice. Why the Germans? Among other reasons, they had been thinking about the rule of law and the state since the rise and fall of Weimar and their intellectual training was better suited to the times.

To return to the theme of interdisciplinarity, one lesson I learned from my journey among the Germans is that scholars need to be aware of different disciplinary idioms rather than identifying a single language, such as the language of law in the mid-twentieth-century United States, and assuming this language exhausts the contributions of a discipline--in this case how "the law" was imagined, discussed, and fought over. They might also look in different places: much of this law talk about the American state took place on German soil.

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