Intrínsecas y mutuas, primarias y secundarias

In the first chapter, the literature concerned with international law and norms was considered. I showed that the existing approaches to International Law, and approaches to International Relations that derive their concept of law from International Law, fail to account for the relationship between politics and law existent in human rights norms. This failure is due to the fact that they are not able to explain, or take into consideration, the political constitution of law in a historical context. Politics and law can be related to different issues such as the formalisation of law, the idea of the rule of law and the political expression of legitimacy. Regarding legitimacy, the previous chapter highlighted the existence of at least three different approaches to legitimacy: entirely normative, sociological and a middle way between both approaches. It was argued that the literature fails to apply a dialectical methodology to human rights law taking into account its political constitution. Therefore, it is imperative to fully understand its historical development and the relationship between the human rights norm, as it was formalised, and the current international politics. As a conclusion, it was noted that a perspective based on the critical theory of the Frankfurt School could provide a theory of law grounded in historical development. Such a perspective will observe the political action, in its sociological and normative characteristic, towards human rights. Therefore, it will explain how, historically, political actions have shaped human rights law and its functions. Moreover, how the contradictions between the political uses of human rights and the emancipatory value of these same rights are part of the present international political moment.

It is necessary to explain further my understanding of the connections between law and politics in the context of human rights, and in what order I perceive the formation of each occurs. Therefore, this chapter will deal with the development of the law in terms of Critical Theory, mostly based on the work of Franz Neumann and Otto Kirchheimer. In the first section, I will explain how they answered questions about the liberal legal order in terms of the formalisation of law, the rule of law, bearing in mind the possibility of reconciliation between the Enlightenment project of emancipation and the liberal legal order developed in the context of the transition to the Weimar Republic and the Nazi regime. Although the application of Neumann and Kirchheimer's work in order to understand human rights in

international politics has not yet been done, their work can contribute substantially to an understanding of the transformation of international law and its implications for international relations. There are two characteristics of their work that are essential for the development of my argument. First, the socio-political conflicts observed by them, which originated from the Constitution of Weimar and the Nazi regime, are crucial for their application of historical analysis and understanding of contradictions. Secondly, their application of dialectical methodology, as developed by the members of the Frankfurt School, provided better accounts of the role of human rights and their emancipatory and repressive potential. The lawlessness of the Nazi regime showed an emancipatory potential of the law, not recognised by most theories. This situation, thus, allowed the Frankfurt School to understand the transformations of the function of law in Germany at the beginning of the twentieth century,

The second section will deal with international politics and the idea of human rights. Human rights are both a form of control and an emancipatory tool. In this sense, human rights help recognise the individual and the human being, and because this can be considered as its primordial role, human rights lack a critical force. Also, it is stated that governments have understood the benefits of having human rights as moral justification for their policies (Douzinas, 2007). Koskenniemi, for instance, claims that the actual moment of human rights reveals ‘a certain failure of the rule of law’. Just as post-liberal ideas have affected the welfare state, he asserts that the ideology of the rule of law as being a set of general and uniform rules has also been affected, revealing its inadequacy to regulate situations (Koskenniemi, 2010, p. 47). Bearing in mind the difference presented by Douzinas, in terms of subjective and objective rights, the approach based on the early Frankfurt School explores the liberal concept of law and, while criticising its development, explains the mechanisms behind this differentiation in terms of natural law and how, politically, human rights have been used in the definition of the subject (the members of the community of nations; the differentiation between the ‘other’, or the colonies, and the West) and how this political relationship was fundamental for the development of human rights as it is today.

Law and Politics in Neumann and Kirchheimer

Law and politics are intrinsically and dialectically related. It means that this relationship must be understood in its historical context and in terms of the ways in which

contradictions can be reconciled. Therefore, this characteristic allows me to perceive how human rights can be described in a dialectic of repression and emancipation. Central to it, is the idea of the rule of law and its promises of freedom for the individual. To give a better understanding of the relationship between politics and human rights, it is necessary to demonstrate that it is possible to understand the contradictions that exist in the formation of human rights in its political and legal framework, using a theory of law based on the work of the Frankfurt School, especially that of Neumann and Kirchheimer. To this end, the debate between legal realists and legal liberal-positivists in terms of the formalisation of the law will be presented. This first part is important because it highlights the importance of the historical context, unlike other approaches that were developed at the same time. After that, Neumann and Kirchheimer’s work on law and politics will be analysed focusing on the change in the function of law in modern societies as perceived by them, including the debate over the Weimar Constitution. Finally, their historical view of the rule of law will be explored along with some further considerations on the subject.

At the same time as the Frankfurt School started its analysis, there were different debates on law and jurisprudence, specifically between liberal-positivists (Hans Kelsen) and realists (Carl Schmitt). Their debate focused on the role of the judge and the law. While positivists tend to demand clarification and codification, for Schmitt, all legal norms have been characterised as open-ended and indeterminate. This characteristic, presented by Schmitt, has been called ‘the enigma of legal indeterminacy’ (Bernstein, 2011, p. 403). In other words:

Classical liberal conceptions of a “mechanical and automatic binding” of the judge to the legal norm are clearly overstated. Pace liberal jurisprudence, all legal concepts are profoundly and unavoidably open-ended and indeterminate. Every legal decision is a hard case. Liberal demands to clarify and codify law are inherently flawed because no system of legal norms can hope to guarantee even a minimal degree of regularity and determinacy within legal decision making (Scheuerman, 1999, pp. 16–17).

The positivistic liberal form of law assumes that there are universal concepts known by the common man and applicable to the case when there is a judicial decision bringing certainty to the system. In Kelsen, the judge uses the law as a frame in which his interpretation is set (Kelsen, 2009), the structure of this frame represents the universal concept from which it is impossible to deviate. However, if there is also no universal concept, there is no foundation for this frame.

frame, advocating the indeterminacy of an international legal norm. Similar to the national level, international law is also developed as open-ended norms. Using the rule of law as binding in international law is thus an illusion. His criticism goes further to explain how indeterminacy of the law at the international level is used and exploited.

All legal concepts, and not just those obviously open-ended in character, are “easily disputable and dubious” in the international arena. Radical indeterminacy is at the very core of international law; it is not simply a problem resulting from vague and de-formalised standards (Scheuerman, 1999, p. 148).

Several scholars of International Law – from realists to critical theorists – have used the term indeterminacy to highlight the conditions of law in the international realm. For them, the formalistic system of law is inadequate to overcome the insecurity of the decisions – the situation desired by liberals. Instead, liberal values stated in legal norms are of little help to judges, and different interpretations can be taken from the same legal norm. As a result, recognising the indeterminacy of the law is tantamount to recognising the non-existence of universalism (Ibid., p. 118).

Contrary to the views of Kelsen and Schmitt, Neumann and Kirchheimer developed an understanding of the law that related political aspects with normative aspects, and, at the same time, emphasised the emancipatory potential of the law. They observed that the monopolistic economic situation of the capitalist system of their time required extensive State intervention. The monopolistic economy could modify original institutional assumptions and also threaten the rule of law. For both, it is necessary to acknowledge these transformations and the ambivalence that they can represent. In Neumann’s and Kirchheimer’s account, these transformations, from Weimar to a totalitarian regime, were harmful to the emancipatory project.

Unlike both Kelsen and Schmitt, the historical context was fundamental to the development of Neumann’s and Kirchheimer's arguments. They focused their work on their observation of the law from Weimar to the Nazi regime. In this sense, Weimar was an important moment in history for the scholars of the Frankfurt School. It allowed them to perceive the dialectical process of the formation of a rights-based, social democracy and the totalitarian regime, based on the assumptions of Schmitt’s decisionism. In the process of analysing the new regime and the legal transformations of that time, they worked within the dialectical Hegelian framework. This framework, developed by them, provided a political understanding in which the notion of ‘positive freedom’ could be combined with the end of

political alienation if one adhered to universally valid rational laws (Jay, 1973, p. 119). Universal laws were at the core of this project. The idea of freedom was related to ‘positive freedom’. In Fromm and Marcuse’s work, freedom should be ‘freedom to’ but not ‘freedom from’. Freedom has to be considered as a political concept, only possible in a ‘rationally’ organised society. Freedom can, however, only be perceived in relation to the ‘unfree’. Therefore, the dialectical methodology can be expressed, in Marcuse’s words, as the following:

Dialectical thought starts with the experience that the world is unfree; that is to say, man and nature exist in conditions of alienation, exist as “other than they are.” Any mode of thought which excludes this contradiction from its logic is faulty logic. Thought “corresponds” to reality only as it transforms reality by comprehending its contradictory structure (Arato and Gebhardt, 1982, p. 444).

From this perspective, Neumann traced the function of legal theory in bourgeois society, challenging the liberal notion of ‘equality before an impersonal law’: a concept that works as an ideological cover for the fact that there are social groups, behind the law, ruling society. Before the law, the possibility of equality is only formal in a negative sense of freedom, and because of that, Neumann admits that liberal theory can only assure minimum legal equality. Joining Horkheimer and Marcuse, he stated that formalism could not be ignored as a safeguard, and should be considered a ‘genuine moment of the dialectical totality, which ought not to be simply negated’ (Jay, 1973, p. 145).

Against the indeterminacy thesis and the idea of equality before the law, Neumann argues that the State should not be legislated only by general law. It had become nonsense since legislation dealt with monopolies instead of free markets – which meant that generality had no equalising function as before. However, while realists had introduced ‘institutionalism’ as a replacement to individualism, Neumann argued that this was an ‘ideological façade for decisionism, because the institution was divorced from the context of power relationships, without which it is unintelligible’ (Jay, 1973, p. 146). In a fascist country, therefore, the legitimacy of law was based neither on the generality of liberal- positivist law nor on the rational foundation of natural law, concluding that because of that, the law was illegitimate. Neumann’s argument was deeper and stated that the same behaviour towards legitimacy could be found in non-fascist countries.

In contrast to the illegitimate source of legitimacy of fascist (and some non-fascist) countries, Neumann argues that reason ought to be the ‘source of law’ and he agreed with Hegel, who had not attacked the idea of rational law, but only the previous form of natural

law:

We must not be driven […] to the extreme of positivism, pragmatism, and perhaps still further to a nihilistic relativism […] The truth of a doctrine will depend upon the extent to which it embodies concrete liberty and human dignity, upon its ability to provide for the fullest development of all human potentialities. It is thus in the historic development and the concrete setting of the natural law doctrines that their truth must be determined (Neumann and Marcuse, 1964, p. 72).

For Neumann, the appreciation for de-formalised law corresponded to a trend that ultimately resulted in the terror of the Nazi regime. Classical liberal theory, although incapable of responding to contemporary political crises, should not be excluded entirely. It should help us transform society into a more democratic and anti-capitalist form. De- formalisation of law, on the other hand, has been used by strong economic powers to undermine the rights-based system created by the welfare-state (Neumann, 1936; Neumann and Marcuse, 1964, pp. 59–66; Scheuerman, 1994a, p. 3; Whitehead, 2001, p. 673).

Against de-formalisation of the law, Kirchheimer defends the law’s generality. He explains that Schmitt’s criticism of the classical rule of law is based on a semantic definition of the general rule. The idea of general law should be analysed in the origin of the formal law. The generality of the law, consistent with a classical view of the rule of law, must be enacted by a broadly participatory democratic process:

Kirchheimer’s alternative notion of generality, on the other hand, would entail the democratic construction of laws through wide and active participation in self- government. This might produce laws that are much more specific. While no longer semantically general, such laws would nevertheless be general in their origins because they would be the product of a general consensus (Whitehead, 2001, p. 675 note 74).

Also, in terms of the classical liberal law, Neumann understands that all varieties of natural law somehow expressed concerns about humanity. It happened because the principle of law is rooted in a lawfulness of nature in which man himself shares. However, his conclusion, in terms of natural law, is that the only legal and political authority that man should follow would be reason. In the Weimar Republic and in the development of the capitalist system, Kirchheimer’s analysis showed that although liberal democracies were based on universal law and consensual or legitimate agreement, they are used as a mechanism to ensure that political order can have none of both. The cult of private law makes it easier to form ‘radically non-consensual types of authority’. This is because private law had a status of inviolability given by liberal constitutional States (once declared as rights of the man), and it meant that independent economic interests (protected under private law) had securities that undermined constitutional norms in a liberal democratic state. The very fact that private law

is recognised as an autonomous legal sphere in liberal democracies means that liberal democracies are always unstable.

In the formation of this liberal system, the legal subject and the State had evolved to a form of rationalisation connected to positivist assumptions regarding the law. As part of their dialectical method, subject and State relate in a system reduced to ‘a formally “immanent” and self-referring system of rules, which excludes all external moral or sociological contents in the deduction of validity and entitlement under law’ as developed by positivists (Thornhill, 2007, p. 299). Whilst related to powerful economic prerogatives, legal liberalism corrupted the rational process of self-legislation and Enlightenment, reducing freedom and legitimacy. The liberal law was able to develop a self-referring system due to the relationship between the law and power. In Neumann and Kirchheimer’s account, political power can be seen as two different realities. The first is the intellectual power over nature and understandings about nature. The other is actual power over men. ‘This Political power is social power focused on the State’ (Neumann and Marcuse, 1964, p. 3). Because the term is referring to the control of one man over another, political power is intended to change behaviours at State level, including its legislative, administrative and judicial activities. Politics, and thus history, is not simply a struggle between power groups, but an attempt to mould the world according to one’s image: to impress one’s view upon it. The historical process has a meaning (Neumann and Marcuse, 1964, p. 5).

The attempt to change the other gave allowed them to analyse the historical modes in which the individual acted toward political power. In Neumann’s account, there is a spectrum of different historical attitudes. At one end of the spectrum, represented by the Greek philosophers – especially Plato and Aristotle – political power is the community. It is the total power of the community, and every activity within the community is political. At the other extreme, in the political-theological work of St. Augustine, politics is always evil, and political power is converted into coercion. As such, the attitude is in the direction of monasticism, although ideas of the destruction of political order can be related to this position.

A central position in this spectrum is represented by St. Thomas Aquinas. His attitude regarding political power understands that hierarchies, which exist through political power, are not natural. There are connections between spiritual power and political power that operate in unclear ways, but political power is subordinate to spiritual power. This

relationship occurs through various levels of power. The Thomist understanding prepares for the liberal attitude towards political power. Because political power is allegedly distrusted, there is concern about erecting protection against the power of the State. Rights, therefore, represent the form in which it is possible to dissolve power. Power will be dissolved into legal relationships that will eliminate any sense of personal rule, while developing and including the idea of rule of law in which all relationships must be ‘purposive-rational, that is, predictable and calculable’ (Neumann and Marcuse, 1964, p. 6).

During the beginning of the twentieth century, fascism and social reformism critiqued