Franz Neumann 1900 - 1954

Biography

German Jewish - studied law 1918 - briefly member of Workers and Soldiers Council in Leipzig - joined SDP - practicing lawyer - fight for legal reforms of status of German workers - especially trade union rights, industrial democracy and rights of political participation - influenced by Karl Renner envisaged gradual and immanent transformation of capitalism into socialism by legal and political means - 1933 forced to leave Germany - came to LSE with Harold Laski.

Bibliography

1936: The Rule of Law 1937: Change in the Function of Law in Modern Society 1942-44: Behemoth: Structure and Practice of National Socialism

Major themes:

a) defence of formal rational law against critics on Right and Left:

i) dual aspect of formal rational law both sovereignty of state and natural law - reject Schmitt's rejection of natural law - idea of rational law incompatible with state based on sheer violence - the latter lacks formal legal framework, rational administration and individual liberties

ii) warns of dangers of acceding to disillusionment over law or resignation in the face of its dissolution if natural law element neglected.

b) critique of legalism of Social Democracy

i) reliance on a constitution which no longer had real guarantees behind it - failure to recognise that legality of constitution already eroded by unconstitutional measures - e.g. free law movement and primacy of judiciary over legislature.

ii) equivocal effects of legalising class struggles and allowing hostile judiciary to determine outcomes of class struggles.

c) decline of rational law as a result of transition from competitive to monopoly capitalism -

i) rational law necessary for predictability of exchange / markets in competitive capitalist economy not required by capital under conditions of monopoly capitalism where market is less important than planning and control - capital no longer has interest in maintaining formal rational law

ii) fascism is direct rule of monopoly capital without rational form - no longer needs predictability and sees legal forms of legitimation as defunct fascism replaces legitimacy of law with irrational forms of legitimation like principles of `leader' and `people' (Volk) the defence of formal rational law can only come from below

d) integration of Marx's and Weber

i) endorses Weber's analysis of formal rational law and his concerns over introduction of substantive legal principles - but links this with historical analysis of changing needs of capital - not surrender to cult of irrationality or doctrines which divorce justice from legality

ii) brings together idea of socialism and idea of formal rational law - also brings together use of extra-legal methods to defend legality.

Changing functions of law in modern society

a) Rational law should be understood as the positivisation of natural law

rational law is not simply a transition from natural law to legal positivism but the positivisation of natural law it is worth thinking abut this distinction

Even the most positivist conceptions of formal rational law (Hobbes, Austin, Kelsen) positivise rather than abolish natural law

explores the formal qualities law must have to be law: generality, specificity and non-retroactivity

explores substantive rights of subjective freedom which law must have to be law: freedom of speech, thought, movement, religion, association, etc.

d) Legal positivism paves the way for the abolition of law

Those (like Carl Schmitt) who subsume natural law to state sovereignty, i.e. who subsume ratio to voluntas, actually destroy the very notion of law and replace it with irrational concepts of violence (e.g. might is right). Under the cover of the absolute sovereignty of the state, totalitarian theorists pave the way for rejection of the state.

Keep in mind the multiple functions of bourgeois law: not only to secure and conceal dominance of bourgeoisie; not only to make economic processes calculable; but also to guarantee the individual a minimum of legal security, equality and justice.

When competitive capital moves to monopoly capital, capital no longer needs the rule of law either for legitimation or predictability of exchange; but labour needs it all the more and becomes its main defender

When class conflict between labour and capital intensifies in capitalist society, civil society loses its basis of self-integration and can only find a point of cohesion in the authority of a strong state. This is expressed legally in the movement from natural law to legal positivism.

e) Nazism pursued further the abolition of idea of rights, law and the rational state

i) Neumann argues (in Behemoth) that: The doctrine of state supremacy had to be abandoned in Germany because the claims of the party conflicted with the claims of the state Today, the doctrines exalting the state, notably Hegelianism, have been thrown overboard Hegels idea of the state is basically incompatible with the German racial myth. Hegel asserted the state to be the realisation of reason Hegels theory is rational; it stands also for the free individual. His state is predicated upon a bureaucracy that guarantees the freedom of the citizens because it acts on the basis of rational and calculable norms

ii) Neumann maintains that the incompatibility of law with Nazi ideas of Volk and Fuhrerprinkip was expressed by Hitler in Mein Kampf in the claim that the state should represent `not an end but a means' for the movement and by Alfred Rosenberg when he rejected Hegel's idea of the rational state in the name of the `authority of the Volkheit'.

iii) Neumann concludes that for the Nazis true community was not the rational whole of Hegel's state but a natural reality bound together by `blood and soil'. Hegel was attacked precisely because rights and freedoms were the basis of his view of modernity; whereas by contrast for the Nazis `the

individual ... has as such neither the right nor the duty to exist, since all rights and all duties derive only from the community'

iv) the fascist state was an instrument used by one element of civil society (monopoly capital and the Nazi movement) to terrorise the rest: the direct totalitarian rule of special interests over the whole. Law became a mere form. Fascism was the expression of the fact that capital no longer needed legal-rational legitimation or calculability. Fascism destroyed formal qualities of law (generality, specificity, non-retroactivity), democratic achievements of labour, individual rights and rational administration. Compared to Nazi rule, the formal-rational class law of the bourgeoisie appears as heaven.

F Neumann: Behemoth, Gollanz 1942, pp. 69-73 Cited in Marcuse: Reason and Revolution, Routledge 1968 p. 413 Franz Neumann: The Rule of Law, Berg, 1986, pp. 171-2