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Recalling and/or Repressing German Marxism? The Case of Ernst Fraenkel
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ErnstFraenkel, The Dual State: A Contribution to the Theory of Dictatorship, ed. JensMeierhenrich (Oxford: Oxford University Press, 2017; first published 1941)
Douglas G.Morris, Legal Sabotage: Ernst Fraenkel in Hitler's Germany (Cambridge: Cambridge University Press, 2020)
JensMeierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (Oxford: Oxford University Press, 2018)
Published online by Cambridge University Press: 26 March 2021
Extract
I spent a few unseasonably hot summer days in 1996 digging around in the German Federal Archives in Koblenz for what later became a lengthy essay on Ernst Fraenkel (1898–1975), the neglected German socialist political and legal thinker. I still recall struggling to justify my efforts not simply as an historian of ideas but also as a political theorist who, at least in principle, was expected to make systematic contributions to contemporary debates. The problem was that Fraenkel had focused his acumen on investigating liberal democratic instability and German fascism, matters that did not seem directly pertinent to a political and intellectual constellation in which political scientists were celebrating democracy's “third wave.” With Tony Blair and Bill Clinton touting Third Way politics, and many former dictatorships seemingly on a secure path to liberal democracy, Fraenkel's preoccupations seemed dated. Even though Judith Shklar had noted, as late as 1989, that “anyone who thinks that fascism in one guise or another is dead and gone ought to think again,” political pundits and scholars in the mid-1990s typically assumed that capitalist liberal democracy's future was secure. When I returned to the US and described my research to colleagues, they responded, unsurprisingly, politely but without much enthusiasm.
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References
1 Scheuerman, William E., “Social Democracy and the Rule of Law: The Legacy of Ernst Fraenkel,” in Caldwell, Peter C. and Scheuerman, William E., eds., From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar Republic (Boston, 2000), 74–105Google Scholar.
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3 Fraenkel, Ernst, Zur Soziologie der Klassenjustiz und Aufsätze zur Verfassungskrise, 1931–1932 (Darmstadt, 1968)Google Scholar; Fraenkel, Reformismus und Pluralismus (Hamburg, 1973).
4 Fraenkel, Ernst, Deutschland und die westlichen Demokratien (Frankfurt, 1991)Google Scholar.
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6 Fraenkel is also an important figure in Greenberg, Udi, The Weimar Century: German Émigrés and the Ideological Foundations of the Cold War (Princeton, 2016), 76–119Google Scholar; Strote, Noah Benezra, Lions and Lambs: Conflict in Weimar and the Creation of Post-Nazi Germany (New Haven, 2017)CrossRefGoogle Scholar.
7 See, for example, von Brünneck, Alexander and Buchstein, Hubertus, eds., Vom Sozialismus zum Pluralismus: Beiträge zu Werk und Person Ernst Fraenkels (Baden-Baden, 2000)Google Scholar.
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9 Meierhenrich, Jens, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000 (Cambridge, 2008)CrossRefGoogle Scholar.
10 See Mannheim, Karl, Man and Society in an Age of Reconstruction (New York, 1940)Google Scholar.
11 Neumann, Franz L., Behemoth: The Structure and Practice of National Socialism, 1933–1944 (New York, 1963; first published 1944), 468Google Scholar. Kirchheimer, Neumann's colleague at the Institute for Social Research during the 1930s and early 1940s, shared these reservations. Kircheimer, Otto, “Review of Fraenkel, The Dual State,” Political Science Quarterly 56 (1941), 434–36Google Scholar. Like Neumann and Fraenkel, Kirchheimer emphasized Nazism's monopoly-capitalist traits. Neumann and Fraenkel met in Frankfurt in 1919 as students, where they founded (with Leo Löwenthal, of subsequent “Frankfurt school” fame) a socialist student organization. Later both earned their law degrees under the aegis of the left-wing Weimar jurist Hugo Sinzheimer and practiced law together as socialist intellectuals (in the SPD) in Berlin between 1928 and 1933. Because of his involvement in high-profile political cases on behalf of the SPD in 1933, Neumann was immediately forced to flee Germany in 1933. Fraenkel later reported that The Dual State was in part motivated by conversations with Neumann.
12 Neumann, Behemoth, 446–7.
13 See, for example, Fraenkel, Ernst, “Die Krise des Rechtsstaats und die Justiz,” Die Gesellschaft 8/2 (1931), 327–41Google Scholar.
14 Ernst Fraenkel, “Auflösung und Verfall des Rechts im III. Reich” (1960), in Fraenkel, Reformismus und Pluralismus, 212. In a 1951 essay, Neumann conceded that German fascism was ultimately characterized by the “domination of politics over economics.” Neumann, Franz L., “Economics and Politics in the Twentieth Century,” in Neumann, The Democratic and Authoritarian State (New York, 1957), 199–228, at 266Google Scholar. In the early 1950s, Fraenkel and Neumann jointly conducted seminars together at the Free University in Berlin. Stern, Fritz, Five Germanys I Have Known (New York, 2006), 215Google Scholar. Neumann died in a car crash in Switzerland in 1954.
15 Neumann, Behemoth, 468.
16 Ernst Fraenkel, “Gedenkrede auf Franz L. Neumann” (1955), in Fraenkel, Reformismus und Pluralismus, 168–79, at 177.
17 Neumann, Behemoth, 468.
18 See, for example, Fraenkel, Deutschland und die westlichen Demokratien, 66.
19 See his dismissive comment about this feature of Fraenkel's work (333 n. 2).
20 We now know that Max Horkheimer impeded its translation into German, in part because he was fearful that its Marxist contours would reflect poorly on the postwar Institute for Social Research. More generally, the immediate postwar era, with the Cold War raging, was not a hospitable environment for Marxist scholarship; there is also clear evidence that Fraenkel himself sought to distance himself from his own early Marxist writings. Only with the arrival of the German New Left, and the sizable impact it had on a generation of critical scholars who came of age in the 1970s, was the ground ready for a revival of interest in leftist theories of fascism.
21 See, for example, Suntrup, Jan Christoph, “Between Prerogative Power and Legality: Reading Ernst Fraenkel's The Dual State as an Analytical Tool for Present Authoritarian Rule,” Jurisprudence 11/3 (2020), 335–59CrossRefGoogle Scholar.
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23 Habermas's synthesis of Marx and Weber is essential to his magnum opus, The Theory of Communicative Action, 2 vols., trans. Thomas McCarthy (Boston, 1981).