ABSTRACT
At a historical junction when fascism was well on its way to becoming Europe’s dominant political force, the Institute for Social Research’s resident political and legal theorist, Franz Neumann, came to see a variety of modern legal ideals as enduring contributions to democratic politics. Fascism’s abandonment of them represented nothing less than liberal bourgeois society’s rejection of its greatest achievements. For Neumann, a defense of a rather traditional conception of the rule of law played a key role in this project. While Max Horkheimer and Theodor Adorno were using Max Weber to offer a traumatic and somewhat one-sided portrayal of Western development, Neumann instead relied on Weber to salvage the emancipatory universalistic features of the modern legal tradition, in his eyes embodied most clearly in the ideal of the rule of law and its emphasis on clearly formulated general legal norms which do “not mention particular cases or individually nominated persons, but which [are] issued in advance to apply to all cases and all persons in the abstract.” 1
Throughout his illustrious career, Jürgen Habermas has tended to criticize precisely this position.2 In arguing against Weber and Weberian analyses, which stress the importance of the systematic and coherent semantic form of law for understanding what is specifi cally “modern” about it, Habermas worries that it leads too many authors, as it did Weber, to an unjustifi ably hostile assessment of nonformal modes of law seemingly essential to the democratic welfare state, where vague legal standards, indefi nite blanket clauses, and other legal acts arguably incompatible with classical conceptions of the rule of law are widespread. By means of a comparison of Neumann and Habermas’ respective restatements of the Weberian story of legal rationalization, I accept the basic soundness of Habermas’ concerns. Yet I also reformulate Neumann’s argument and show why the anxieties about nonclassical modes of law underlying it, despite Habermas’ occasional claims to the contrary, need to be taken seriously. Neumann’s admittedly old-fashioned defense of a classical conception of the rule of law is more vital to Habermas’ own project than he cares to admit. I also respond to criticisms which Habermas potentially might raise against my project of
synthesizing traditional concerns about the structure of the legal norm with a critical theory of law and democracy.
