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Review Essays of Academic, Professional & Technical Books in the Humanities & Sciences


On the Three Types of Juristic Thought by Carl Schmitt, edited and translated by Joseph W. Bendersky (Contributions in Political Science: Praeger Publishers) Bendersky provides the only English-language translation, with extensive notes and introduction, to one of Carl Schmitt's most controversial works. At the time of its publication in 1934 and during the war and post-war years, the treatise was seen as a rationalization of the Nazi legal order. With the renaissance of Schmitt studies beginning in the 1980s, the man and his work, and this work in particular, was reinterpreted. While some maintained that it was a foundation of Nazi legal theory and practice, others see it as a failed attempt at a conservative counterweight to the most extreme tendencies in National Socialism.

Excerpt: Despite its brevity, Carl Schmitt's On the Three Types of Juristic Thought ranks among his most important contributions to politi­cal and legal theory. It offers a disturbing challenge to long-standing, commonly assumed liberal ideas, ideals, and standards of law, particularly as they relate to government and political culture. Within these pages, Schmitt provides perhaps his clearest and most elaborate critique of the legal positivism and norma­tivism so closely linked to the political liberalism of his day. It is a critique with continuing relevance for our own time. By undermining the comforting but no longer tenable claim to certainty and objectivity of positivism and normativism, Schmitt opened the way for the elements of contingency and indeterminacy at the very heart of contemporary debates over social and political modernity.

This work also documents a dramatic shift in Schmitt's thinking that had been gradually developing since the late 1920s. He now exposes and critiques the limits of the very decisionist legal and political theory he earlier espoused and with which his name is still inextricably associated. In this respect, a reading of On the Three Types of Juristic Thought, where he introduces his concept of concrete-order thinking, is essential to avoid the many misconceptions and misrepresentations of him and his decisionism. And beyond clarifying his theoretical stand, his concept of concrete orders, with its emphasis upon traditional institutions, community, and cultural foundations, reconfirms that Schmitt remained primarily a traditional conservative thinker.

However, for over half a century, Carl Schmitt's On the Three Types of Juristic Thought received rather scant attention. Pub­lished in the early stages of the Third Reich, this book's contri­bution to legal theory appeared highly dubious. Schmitt's scathing critique of liberal legal principles and practice, written as he acquiesced to the new National Socialist political reality in Germany, confirmed the reservations many had about his political and legal theory. Unlike the reputable academic publishers, such as Duncker and Humblot in Berlin, which had issued his earlier books, On the Three Types of juristic Thought was published in 1934 by the Hanseatische Verlagsanstalt in Hamburg, a house famous for its right-wing nationalist, and then Nazi, authors and readership. That this book also appeared as a publication of the Nazi Academy of German Law under the editorship of Reich Minister Dr. Hans Frank further damaged its credibility among legal scholars.

The wartime treatment of this book by Ernest Fraenkel and Franz Neumann, two leftist émigrés intimately familiar with Schmitt's Weimar writings, probably reflected the widespread estimate of its value for decades thereafter. Although Fraenkel called it the "most influential juridical study of recent years" by the "most brilliant political theorist of post-war Germany," he found its "theoretical shortcomings" highly problematic. Fraenkel ultimately condemned it as "nothing but the new legiti­mation of this capitalistic legal order" of Nazi Germany. And in his classic study, Behemoth: The Structure and Practice of National So­cialism, Neumann dismissed it as a major part of the theoretical foundation for a legal system that was "nothing but a technique of mass manipulation by terror." Thus, it was not surprising that during the subsequent decades in which Schmitt and his ideas were either universally condemned or ignored, this work in par­ticular suffered a similar fate.

However, the international renaissance in Schmitt studies that began in the 1980s has opened the way for various reinterpretations of this jurist and his work. Earlier characterizations of him as a forerunner of National Socialism, a nihilist, or an amoral opportunist now have been challenged by diverse perspectives of this enigmatic figure, ranging from depictions of him as a tra­ditional conservative thinker to the more recent argument of certain German scholars that he was a theological thinker. More telling still are the latest series of publications in English in which even his most strident critics acknowledge the enduring significance of his theory. As one conceded, "Schmitt's critique of liberalism captures better than contemporary critics the problematic nature of liberalism." Others emphasized his influence on the constitutional system of the Federal Republic of Germany, particularly the Constitutional Court and its rela­tionship to popular sovereignty and democracy. Schmitt has even been called the "godfather" of "contemporary American conservatism.

As part of this renewed interest, several of Schmitt's major Weimar works have been translated into English. Although this clearly indicates an increasing recognition of Schmitt's importance in the history of legal and political theory, especially of his significant Weimar contributions, his compromises with the Nazi regime automatically render anything he wrote during those years as inherently suspect and likely to be dismissed out of hand.

Nonetheless, while this revisionist scholarship has been emerg­ing, there have been various signs that, despite the taint of Nazism, some of Schmitt's works from the Hitler era also warrant serious examination. It has been realized that such analyses are neces­sary to fully grasp the evolution in Schmitt's thinking, as well as his relationship to National Socialism. Moreover, George Schwab pointed out quite early in this reevaluation process that, his collaboration notwithstanding, Schmitt's writings during these years retained fundamental conservative characteristics in contrast to Nazi ideology and policies. Equally important, Schwab showed not only how essential concepts in On the Three Types of Juristic Thought were outgrowths of Schmitt's earlier legal ideas, but also how they were part of a broader tradition of European legal thought on "institutions," which included the prolific and highly respected work of such distinguished French thinkers as Maurice Hauriou and George Renard.

Still, it has only been since the late 1980s that the notion of "concrete orders" embodied in On the Three Types of Juristic Thought has become the focus of direct attention. At an international con­ference on Schmitt in 1986 at Speyer, Germany, two prominent German legal scholars, Joseph H. Kaiser and Ernst Wolfgang Böckenförde, suggested that "concrete orders" and institutional thinking have a continuing relevance in politics and law. It was just such suggestions—that "concrete orders" and institutional thinking might have any validity or current acceptance in law-that has long greatly alarmed another German legal scholar and judge, Bernd Rüthers.

In Rüthers's mind, the experience of National Socialism demonstrated categorically that "law can degenerate into an in­strument of state terror," and he identifies Schmitt as the very "paradigm" of the kind of German jurist whose ideas and actions facilitated that "perversion" of law. Thus, Rüthers was greatly dis­turbed by the growing interest in Schmitt on the part of both rightist and leftist thinkers in contemporary Germany and else-where. An early critic of institutional theory, Rüthers argued that this type of thinking had actually reemerged rather quickly in Germany after 1945, overtly in legal theory, as well as in the practice of constitutional and civil law, and in disguised forms in other areas of law and sociological theory. Rüthers is con­vinced that, as before, the acceptance of institutional forms of thinking and "general clauses" endangers democratic equalityand individual rights; it also poses a serious and ominous challenge to the entire constitutional form of government.

Ingeborg Maus, on the other hand, has argued that Schmitt's legal ideas had already long pervaded Germany's postwar system. Reviving a Marxian analysis she imposed on Schmitt decades ago, Maus has continued to insist Schmitt's ideas were always directed at maintaining domination by the bourgeoisie and monopoly capitalism as opposed to the social and economic in­terests of other segments of society. When Weimar collapsed, Schmitt merely turned to institutions, concrete orders, and general clauses to achieve the same objectives under National Socialism. Maus sees continuity in Schmitt's thought and influ­ence not only from Weimar to the Third Reich but down to the present. Schmitt's work "was from the outset," she writes, "the secret dominant legal theory of the Federal Republic, particu­larly the Constitutional Court."

At the same time, ironically, TELOS, formerly a key journal among those Marxist intellectuals in America devoted to the Frankfurt School's legacy of critical theory, has taken a special interest in Schmitt. Its editor, the late Paul Piccone, had gradually integrated more and more Schmittian concepts into his own critical political and sociological analyses until he reached the point of presenting On the Three Types of Juristic Thought as a valuable contribution to the theoretical framework of a postmodern brand of communitarianism and new form of populist legitimacy for government.

In one of the most recent major studies, Andreas Koenen ar­gues that with concrete-order thinking and institutionalism Schmitt was attempting to guide the Hitler regime into a more conservative and less radical direction during the early stages of the Third Reich. Essentially, Koenen has taken Schwab's earlier interpretation and added what is now referred to in historiogra­phy as the "theological twist." For Koenen believes Schmitt was pursuing much more than traditional conservative political and cultural goals. Rather than merely seeking to constrain Nazi extremism, and thereby preserve as much of traditional German society and culture as possible, Schmitt, a devout Catholic political activist, was actually hoping to realize a Christian coun­terrevolution during the Third Reich."

Whether one considers On the Three Types of Juristic Thought a foundation of Nazi legal theory and practice or a failed attempt at a conservative counterweight to the most extreme tendencies in National Socialism, it was definitely a transitional work for Schmitt. There is an undeniable continuity with Schmitt's pre-Nazi critiques and ideas on legal and political theory. In this re­spect, it reflects the evolution in his thinking in the course of a natural intellectual development of ideas. On the other hand, these preexisting theories and ideas are clearly adjusted to ac­commodate the new political realities after the Nazi Machter‑greifung

That On the Three Types of Juristic Thought constituted a grafting of the new upon the old is strongly suggested not only from the actual content of this work, but also from the differing public forums in which Schmitt introduced his theory of concrete-order thinking. The first was a very traditional academic venue, the Kaiser-Wilhelm Society for the Advancement of Science, where he lectured on February 21, 1934. There, Schmitt felt com­fortable among old and respected professional colleagues. Al-though in such settings Schmitt had often encountered heated, often hostile, debates, he shared with such intellectual critics a commonly accepted set of professional values, standards, and expectations concerning scholarship, as well as society. A few weeks later, on March 10, he spoke before the Reich Group of Young Jurists of the National Socialist League of German Jurists. While this group included familiar professional and academic types, it definitely represented the emerging forces of Nazism gradually penetrating more and more of traditional society. Here, the personnel, the ideas, and the still rather -indeterminate ex­pectations differed significantly from the academic and public arenas in which he had functioned throughout his distinguishedprofessional career. This was the new milieu in which Schmitt had been cautiously feeling his uncertain way since the spring of 1933.

The Mirror of Justice: Literary Reflections of Legal Cases by Theodore Ziolkowski ( Princeton University Press) We live in an age permeated by suspicion of lawyers and skepticism about law as an institution. Lawyer jokes proliferate & applications to law schools decline. Over the course of time, the processes of law have become increasingly professionalized and more remote from normal daily experience. Our society has increasingly become one of externally imposed statutes instead of a community of internalized law. These matters should concern us all.

In this incisive and useful study, The Mirror of Justice, Ziolkowski presents a sweeping and intriguing handbook of law, literature and history.

The Mirror of Justice studies major works of literature from classical antiquity to the present that reflect crises in the evolution of Western law. Ziolkowski, a professor of literature at Princeton, moving from classical antiquity toward the present, first addresses the movement from a prelegal to a legal society in The Eumenides, the Christianization of Germanic law in Njal's Saga, the disenchantment with medieval customary law in Reynard the Fox, the reception of Roman law in a variety of Renaissance texts, the conflict between law and equity in Antigone and The Merchant of Venice, the eighteenth-century codification controversy in the works of Kleist, the modern debate between "pure" and "free" law in Kafka's The Trial and other such works, and the effects of totalitarianism, the theory of universal guilt, and anarchism in the twentieth century.

Using principles from the anthropological theory of legal evolution, The Mirror of Justice places each work in its legal context and traces each through the gradual dissociation of law and morality over the centuries. From its own unique point of view, it associates and illuminates these masterpieces and contributes a new dimension to the study of literature and law.

In contrast to prevailing adherents of Law-and-Literature, this book professes Literature-and-Law, in which the emphasis is historical rather than theoretical and literary rather than legal. Instead of giving examples from the literary work to illustrate debates about modern law, this book consults the history of law as an aid to the understanding of the literary text and its conflicts.

The Mirror of Justice is enlightening in its literary analyses & in issues of the history of juridical theory. Ziolkowski is extraordinarily well informed, writes accessibly, & brings his broad interdisciplinary knowledge and discerning critical skills to this wide-ranging study. His intricate knowledge of history, literature, and law is a marvel. The Mirror of Justice will be a fountainhead for further writing and scholarship.


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