Angels and others

'Can There Really Be Law in a Society of Angels?' by Kenneth Einar Himma argues 

Authorized coercive enforcement mechanisms is a feature of every existing institutional normative system we would characterize as a legal system. Indeed, it is so prominent in existing legal practice that it seems also to be a paradigmatic feature of law. Despite this, most contemporary theorists deny that authorized coercive enforcement mechanisms are a conceptually necessary feature of law. These doubts have been grounded in concerns about the conceptual status of international law, as well about whether law exists in a hypothetical society of angels who are motivated always to obey law without any need for authorized coercive enforcement mechanisms.

In this essay, I consider whether this second concern – the “society of angels” example – succeeds in showing that such mechanisms are not a conceptual feature of law. I will argue, in essence, that the society-of-angels argument depends on assumptions about the psychological features of the “angels” that are simply too far removed from what is possible for us (i.e. human beings) in the conditions in which we live to tell us anything of theoretical significance about our legal concepts. Insofar as it is our legal practices, which result from the problems to which our circumstances give rise, that, on Raz’s methodological view, construct the content of our legal concepts, the society-of-angels argument is simply not equipped to do the work it is contrived to do. Otherwise put, I argue that our concept of law explicates a normative institutional system that is distinctively human; as such, society-of-angels thought experiments tell us nothing about the proper content of a conceptual theory of law.

'Historical-sociology vs. ontology: The role of economy in Otto Kirchheimer and Carl Schmitt’s essays ‘Legality and Legitimacy’' by Karsten Olson in (2016) 29(2) History of the Human Sciences 96–112 comments

The pre-1932 writings of Otto Kirchheimer are often described by researchers as the work of a young ‘left-Schmittian’, a radical Marxist who gave the anti-liberal critique and theoretical apparatus of his Doktorvater Carl Schmitt a new purpose for different ‘political ends’. The danger of this approach is that fundamental divisions between the societal conceptualizations of both theoreticians are ignored in lieu of apparent terminological similarity. Through the lens of economy, it is therefore the intent of this article to continue in the tradition of Alfons Sollner and Frank Schale, pushing against this assumed affinity and highlighting Otto Kirchheimer’s unique defense of liberal democracy.

Olson argues

Much of the research on the relationship between Otto Kirchheimer and his Doktorvater Carl Schmitt poses two related questions. To what extent was young Kirchheimer a left- Schmittian? And when did the break occur, that is, when did Kirchheimer free himself of Schmitt’s spell and emerge as a fully independent theorist? One source of these formulations is Ellen Kennedy’s well-known essay ‘Carl Schmitt and the Frankfurt School’, in which Kennedy asserts that Kirchheimer was the ‘legitimate heir and the transmitter of [Schmitt’s] ideas within Critical theory’ (Kennedy, 1987: 47), creating the now familiar formulation of Schmitt and Kirchheimer sharing the same theoretical apparatus to achieve different political goals. Kennedy’s essay has a distinctly polemical quality, strongly asserting Carl Schmitt’s largely secret sway over ‘the Frankfurt School’, as well as his total methodological indoctrination of Kirchheimer prior to 1932. ‘Carl Schmitt and the Frankfurt School’ drew an equally polemic response from Alfons Sollner in ‘Jenseits von Carl Schmitt’, a self-proclaimed ‘Anti-Kritik’ of Kennedy’s article (Sollner, 1986: 504). However, despite its polemical character, ‘Jenseits von Carl Schmitt’ remains one of the most fruitful examinations of early Kirchheimer for two reasons. First, it avoids the problematic formulation of the left’s oft-cited ‘fascination’ with Schmitt, which at times seems to portray Schmitt as a theoretical siren, dashing the stout ships of Marxists on the rocks of accidental fascism. Second, by arguing against an inherent similarity, Sollner is forced to give a detailed account of what concepts are used by Kirchheimer, as well as how and in what context. The question of shared methodology and moments of ‘convergence’ (Kennedy, 1987: 37) between the right and the left is certainly not without interest; however, such an approach runs the risk of masking difference behind the veil of apparent similarity; both Schmitt and Kirchheimer rely, to varying degrees, on concepts of decision, homogeneity, sovereignty and exception within their constitutional theory, but not only do they produce, by all accounts, markedly different ‘political results’,   the foundational understandings of society upon which they are based also stand in direct opposition to one another.

Sollner’s analysis leads to a subtle but significant shift; Kirchheimer is no longer a left-Schmittian implementing anti-liberal critique in the service of a Marxist agenda, but rather his argumentation is ‘historical-sociological’ in direct contrast to Schmitt’s ‘ontological’ democratic critique (Sollner, 1986: 511). Frank Schale argues in a similar vein in ‘Parlamentarismus und Demokratie’ [Parliamentarianism and Democracy], stating that Kirchheimer operated from a ‘sociological-scientific’ perspective, one intrinsically material in orientation, which afforded a knowledge of Weimar ‘from the inside’ (Schale, 2011: 141, 143). In other words, Kirchheimer was from the very beginning not merely adopting but rather critically engaging with Schmitt’s terminology.   It is my hope to continue So llner’s project of conceptual differentiation by examining Schmitt’s and Kirchheimer’s final exchange on the topic of legality and legitimacy within liberal democracy; in 1932 Kirchheimer wrote ‘Legality and Legitimacy’, which was followed later that year by Schmitt’s essay of the same title, which was in turn answered directly by Kirchheimer’s ‘Remarks on Carl Schmitt’s Legality and Legitimacy’. The fundamental nature of the questions posed by both theorists reflects the political instability of the time and also serves to demonstrate the gulf that had always existed between the two, even while they were seemingly operating within the same framework. Central to this division is the role of the economy, and it is subsequently through the lens of the economy that I hope to highlight critical differences between Schmitt and Kirchheimer, and also to sketch a shift within Kirchheimer’s own thought, one which cast a new, hopeful light on the potential of liberal democracy.

‘Hermann Heller and the European Crisis: Authoritarian Liberalism Redux?’ by William E. Scheuerman in (2015) 21(3) European Law Journal 302–312

tentatively buttresses Alexander Somek’s view that Hermann Hel- ler’s 1933 essay, ‘Authoritarian Liberalism’, provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro-business policies while undermining basic liberal and democratic rights. Heller’s unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller’s analysis of the Weimar crisis to the contemporary setting. In particular, Heller’s theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left. Contemporary students of European law are most likely to have encountered Hermann Heller in the context of the controversial Maastricht Decision, in which the German constitutional court cited his ideas about social homogeneity to buttress its version of the sceptical ‘no (European) demos’ thesis. As J.H.H. Weiler soon aptly noted in a powerful rejoinder, not only did the German judges misconstrue Heller’s ideas, but there was something shameful about their employment of a ‘Socialist, Anti-fascist, Jew, critic of Schmitt’ as the main source for a notion of homogeneity more reminiscent of Schmitt’s authoritarianism than that of his great Weimar-era social democratic political and intellectual rival.  Although envisioning homogeneity as essential to democracy, Heller dogmatically hypostasised neither national homogeneity nor the nation state, whose defenders, he once sceptically noted, tended to absolutise it into the ‘highest stage of (Hegelian) world spirit’. Although always hostile to politically naïve versions of both liberal and Marxist internationalism, in contrast to recent conservative defenders of the ‘no demos’ thesis Heller in fact sympathised with calls for a European federal state.

This context makes the long overdue translation of Heller’s 1933 brilliant jeremiad, ‘Authoritarian Liberalism?’, one of his final essays penned before he tragically passed away in Spanish exile (prematurely at age 42), particularly timely. Like Heller, Alexander Somek shares Heller’s sympathies for robust self-government, social democracy and the rule of law. Although understandably vexed by worrisome trends within the EU, and particularly its leadership’s continuing top-down efforts to ensconce and indeed immunise neoliberal capitalism from democratic politics, he is not opposed in principle to ‘the European project’, as long as it upholds rather destroys democracy and legality. Reminiscent of Heller here as well, who always resisted being sequestered into the standard academic cubbyholes, he creatively synthesises legal scholarship, political theory and the critical social sciences in a fashion that remains depressingly unusual. Finally, he makes a strong case for why Heller’s arguments about ‘authori- tarian liberalism’ remain disturbingly pertinent. Some real theoretical and political distance notwithstanding, he, and not the German Maastricht judges, belongs among Heller’s rightful political heir.

Since Heller today remains an unfairly forgotten figure, I start by providing some general background on him and his ambitions, while also explaining why his work remains so neglected, especially in the Anglophone world. I then comment briefly on the potentially productive recent move to revisit his critique of ‘authoritarian liberalism’