By William E. Scheuerman
Winner, 1996 Elaine and David Spitz ebook Prize for the easiest booklet onliberal and democratic concept, convention for the examine of PoliticalThought. Winner, 1994 First ebook Prize, Foundations of PoliticalThought geared up part, American Political technological know-how Association.Between the Norm and the Exception contributes ancient perception to the continued debate over the way forward for the guideline of legislations in welfare-state capitalist democracies. The center factor is whether society can supply its electorate welfare-state promises and nonetheless look after the liberal imaginative and prescient of a norm-based criminal method. Franz Neumann and Otto Kirchheimer, in an age ruled via Hitler and Stalin, sought to set up a legitimate theoretical foundation for the "rule of law" perfect. As an consequence in their refined knowing of the liberal political culture, their writings recommend a theoretical neglected chance, another severe concept that may usefully be utilized in figuring out (and might be countering) the modern pattern towards the deformalization of legislations.
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Additional resources for Between the Norm and the Exception: The Frankfurt School and the Rule of Law
Embodying the logic of Schmittian decisionism, legality can no longer claim to be clearly distinct from facticity. 61 It is not clear from this unfortunate essay that the twentythreeyearold Kirchheimer appreciated the full implications of his vision of an alternative socialist legal order. But the intertwining of law and politics also manifests itself in more subtle ways. A new constellation of genuinely political entities would have emerged. Insofar as a particular constitutional system can determine which issues should remain nonpolitical (religion, for example), it can moderate and tame potential political antagonisms.
But the intertwining of law and politics also manifests itself in more subtle ways. A new constellation of genuinely political entities would have emerged. Insofar as a particular constitutional system can determine which issues should remain nonpolitical (religion, for example), it can moderate and tame potential political antagonisms. Significantly, the Weimar constitutional order rests on just such a compromise between reformminded middleclass parties and the democratically inclined section of the working classes.
But the real question is whether this situation has to leave contemporary politics in the Schmittian, normative limbo of radical decisionism, where the mere intensity of an abstract decision or choice becomes the central standard by which we can allegedly determine the correctness (or, more precisely, authenticity) of political action. Indeed, Schmitt's theory is so explosive precisely because it gives an antimodern program a modernist gloss. But, as an eager Schmittian, Kirchheimer also sees existentially based homogeneity as alone capable of providing the strength needed by political entities in a universe haunted by the specter of the political emergency.