This book is a stunning contribution to the sociology of law—and a contribution that, while empirically focused on intellectual debates over the role of law during Nazi Germany, also develops a theory of authoritarian law that will spark new and comparative research on how we might identify, assess, and measure the role that law plays in authoritarian states. This is of pressing importance for the field.
In this book, Meierhenrich pulls out all the stops. We gain a new sociology of legal theory, focusing on the role of legality in the most extreme situation of Nazi Germany; we gain a sociology of the legal profession, focusing on how intellectual debates mapped onto positions and position-takings; we gain an empirical understanding of the everyday life of law under authoritarian rule, as well as the stakes involved in identifying or discounting legality in these circumstances; we see the international legal effects of scholarly debates; and at its root we gain a sociology of law and authority itself, as Meierhenrich provides an empirically grounded analysis of the very question of what we mean by “law,” the social classifications through which we identify what counts as law, and the processes by which we assess law's effects for justice writ large.
Methodologically, the book is equally brilliant. First, Meierhenrich successfully combines close reading of legal texts and doctrinal work with an understanding of the social positions of their champions, an approach that has been all too missing in the sociology of law to date; and second, Meierhenrich develops from his empirical work a theory of authoritarian law that can be deployed in new cases (including some in our present)—yet veers away from any reductive comparisons between authoritarian regimes, instead keeping his eye on how authoritarian law can be defined and what that means for our sociological understanding of law, both on the books and in action. This final chapter of the book is, in my view, quickly destined to be a classic reading for anyone interested in the sociology of law in challenging (but perhaps not atypical) political environments.
As an empirical matter, Meierhenrich's book is a chockablock analysis of what he calls “conflicting imperatives” within law during the Nazi era. These conflicting imperatives underwrote what was, at the time, a classic work that has since been often forgotten: a book published in 1941, written by Ernst Fraenkel, entitled The Dual State: A Contribution to the Theory of Dictatorship. From the perspective of 2018, this book appears arcane: written by a Jewish lawyer who conducted ethnographic research in the legal archives of 1930s Germany, the book sought to understand law's role in everyday life, and with it how National Socialism could replace the rule of law in two directions at once, one in a normative direction that would vaunt formal legality, and the second in a direction of prerogative that would underwrite state violence.
Yet it quickly becomes evident just how and why this book, and the legal debates of which it was part, captivates Meierhenrich and allows him to build a sociology of authoritarian law. We quickly see Fraenkel as himself a “cause lawyer,” as well as a social scientist of law; and we see the intellectual stakes come to the fore as his former business partner gains prominence in the US state, espousing instead a theory of Nazi rule that entirely discounted the role of law. As Meierhenrich notes, the stakes here are high: in the latter account law is mapped onto justice, so that “there is no realm of law” of which to speak. In the 1940s, there were direct social and political outcomes of this for the conduct of post-War legality (including the structure and theory that would underwrite the Nuremberg trials). But more broadly, the stakes here involve the very capacity to think, in sociological terms, of a concept of authoritarian law in which law is analytically relevant, rather than a mere ruse for state prerogative.
Beyond a sociological history of the field of legal thought during the Nazi era, Meierhenrich throughout takes up the task—both at the level of theory and at the level of research method—of how we might study authoritarian law. He makes several moves here that, in my view, will collectively take the sociology of law in new and extremely productive directions. First, Meierhenrich's stance toward law draws on a cultural understanding of legality, rather than on formal practices as such: “law is what actors, individual and collective, make of it,” he reminds us, and that these are “caught up in a given society's webs of significance.” Second, Meierhenrich develops an approach to studying legality that combines social and political debates (and what we would think of as field positions) with doctrinal disputes, demonstrating the deep importance of high theory to the very structuring of the legal field: indeed Meierhenrich demonstrates the centrality of these disputes not only to the Nazi regime's own sense of authority, but to interlocutors who took up these positions to defend the role of law in the most extreme situations. And third, in his concluding chapter, Meierhenrich develops a brilliant analysis of authoritarian law more generally: Meierhenrich compares Chile, South Africa, Russia, Syria, and China, asking how and when hybridity can remain within these countries, and when they instead tip to either democratic rule or a more fully prerogative-based state.
In this final chapter, Meierhenrich builds on the idea of the “dual state,” and on the ethnographic legal tradition through which it was developed, to focus on those “instances of authoritarian rule in which a legal way of doing things coexists with an alternative mode of behavior: a violent way of doing things.” Meierhenrich works here to build a definition through which we can make sense of, and study, the role of authoritarian law—law in regimes that are premised, at once, on wanton violence and political rule, as well as an openness to legal reasoning and legal disputing. He also provides us with analytical tools that draw on research across law and social science. In so doing, Meierhenrich opens up a whole new vista for the sociology of law, which forces us to come to terms with—and indeed, even account for—the role of law in authoritarian states, rather than chalking up these cases to lawlessness or mere legal “window dressing.” Taking legality seriously in these spaces can, as he suggests, even lead to internal change and reform.
Meierhenrich's book charts an innovative and far-reaching research agenda for the sociology of law. And it is one that, by taking up the cultural understandings of positions of law in some of the world's most difficult situations, will advance theorizing and research in the sociology of law across the board.
