Between the Norm and the Exception: The Frankfurt School and the Rule of Law

This text contributes an historical insight to the ongoing debate over the future of the rule of law in welfare-state capitalist democracies. The core issue is whether or not society can offer its citizens welfare-state guarantees and still preserve the liberal vision of a norm-based legal system. Franz Neumann and Otto Kirchheimer, in an age dominated by Hitler and Stalin, sought to establish a sound theoretical basis for the rule of law ideal. As an outcome of their sophisticated understanding of the liberal political tradition, their writings suggest a theoretical missed opportunity, an alternative critical theory that might usefully be applied in understanding (and perhaps countering) the contemporary trend toward the deformalization of law. Previous studies tracing the connections between the Frankfurt School and contemporary critical theory have concentrated on philosophy and cultural and literary theory, ignoring the important contributions of Neumann and Kirchheimer to political and legal analysis. Between the Norm and the Exception corrects this oversight and provides yet another instance of the continuing relevance of the school’s work. The third major protagonist of the book is Carl Schmitt, the right-wing legal theorist whose ideas continue to be influential, and here Scheuerman’s astute analysis provides a welcome balance to the work of some of Schmitt’s more ardent enthusiasts.