Abstract

This study shows how the long forgotten political theorists of the early Frankfurt School, Franz L. Neumann and Otto Kirchheimer, can help us grasp the ambiguous character of the ongoing transformation of the rule of law in contemporary capitalist democracy. Witnesses to the tragic devolution of Weimar democracy into fascism, Neumann and Kirchheimer resist widespread attempts to underplay the troublesome implications of the decline of traditional liberal law and the concomitant proliferation of vague legal standards like "in good faith" or "in the public interest". In contrast to many authors for whom formal law is little but an anachronism from a long bygone early liberal past or a mere front for illegitimate power inequalities, Neumann and Kirchheimer demonstrate why a reconstructed critical-democratic version of the rule of law-ideal should realize coherently formulated "determinate" legal forms capable of carefully regulating bureaucrats, judges, and a growing number of corporatist actors. If contemporary law is undergoing a gradual deformalization, this is as much because formal law conflicts with powerful political and social interests as it is a consequence of the complexity of state activities in the era of the interventionist welfare state. ;In addition, an examination of Neumann and Kirchheimer suggests the necessity of a substantial revision of widely held misconceptions about the early Frankfurt School. Their writings point to a theoretical "missed opportunity"--an alternative Frankfurt "School"--in many respects more sound than either the profoundly pessimistic and apocalyptic version of critical theory offered by the elder Horkheimer and Adorno or the idiosyncratic brand of neo-Marxist theory associated most closely with Marcuse. Finally, I respond to disturbing interpretations of the fascist political thinker Carl Schmitt that are rapidly gaining ground. Neumann and Kirchheimer had complicated personal and intellectual ties to Schmitt; their writings provide a starting point for an "Anti-Schmitt" that we very much need today