Otto Kirchheimer’s complete works have recently been assembled in a multi-volume series. The fourth volume, Politische Justiz und Wandel der Rechtsstaatlichkeit [Political Justice and Change in the Rule of Law], will be of special interest to readers of Legal Form. Rob Hunter interviewed two of the volume’s editors—Lisa Klingsporn and Christiane Wilke—about the significance of Kirchheimer’s conception of political justice and the continuing relevance of his work today. This post—the first of two—features discussions on Kirchheimer’s interest in the political ends of judicial proceedings; on distinguishing between Kirchheimer’s conception of political justice and Carl Schmitt’s friend/enemy distinction; and on Kirchheimer’s emphasis on looking to “the everyday practice of law” when conducting legal inquiry. The second post focuses on Kirchheimer’s interest in the legal systems and judiciaries of the Soviet Union and the German Democratic Republic; his transatlantic crossings and experience of exile; and the importance of Kirchheimer’s work to Klingsporn’s and Wilke’s own projects.
Rob Hunter for Legal Form (RH): Please introduce yourselves and your projects.
Lisa Klingsporn (LK): Until the beginning of this year I worked as a researcher for the publication of Kirchheimer’s Collected Works. [1] The project, which is now completed, was directed by Hubertus Buchstein. I received my MA in Political Science at the University of Greifswald, and I am currently finishing my PhD Thesis. My research focuses on critical theory and especially the work of Otto Kirchheimer. I ask how we can use critical theory to analyse current political and legal institutions.
Christiane Wilke (CW): I’m an Associate Professor in the Department of Law and Legal Studies at Carleton University. My research has engaged with questions of state violence, political trials, and transitional justice, and my more recent project examines how international law and international organizations understand and adjudicate airstrikes that killed civilians in Afghanistan, Syria, and Iraq. I received my MA and PhD in Political Science from the New School for Social Research, where Otto Kirchheimer taught in the mid-to late 1950s. As an undergraduate student at the University of Greifswald I was involved in preparing the edition of Ernst Fraenkel’s collected works under the editorship of Hubertus Buchstein, who was also heading this project of editing Kirchheimer’s works. Unlike Lisa, I’m not a Kirchheimer specialist, but I’m drawing on his work in my own research.
RH: Could you provide a brief biographical sketch of Kirchheimer, touching on his flight from the Nazis, his postwar activities in the United States, and the effects that scholarship, exile, and frequent travel had on his life?
LK: Otto Kirchheimer was born in Heilbronn, Germany, in 1905. In the 1920s he studied law in Münster, Berlin, and Bonn, where he finished his PhD under the supervision of Carl Schmitt in 1928.
In May 1933, Kirchheimer was arrested and released shortly thereafter, and in June he fled Germany. Kirchheimer’s first place of exile was Paris. In November 1937, Kirchheimer secured a part-time position at the New York Institute for Social Research and was therefore able to apply for a visa in the United States. He kept working for the Institute until 1943, contributing to research on National Socialism.
From 1943 until 1955, Kirchheimer worked as a researcher for the Office of Strategic Services and the State Department, which allowed him to collect many materials for his later studies on the Nuremberg trials, the GDR (East Germany) and the political development of the West German state. In 1955 he was finally hired to a full-time faculty position in political science at the Graduate Faculty of the New School for Social Research. This position sealed his transformation from a German jurist to an American political scientist. In the 1950s, his work focused on political parties and party systems in Western Europe, but he also began writing Political Justice. Kirchheimer is still well-known for his concept of the “catch-all party”, which describes political parties who are first and foremost vote-seeking rather than representing their members interests. In 1961 Kirchheimer was appointed Professor of Public Law and Government at Columbia University, finally combining law and politics in his job title. Kirchheimer died in November 1965.
RH: Kirchheimer’s conception of democracy has often been characterised as “left-Schmittian”—how accurate do you consider that to be?
LK: The debate about whether Otto Kirchheimer can be considered left-Schmittian started in the early 1980s. To this day there are scholars on the right as well as the left who claim that after 1945, Otto Kirchheimer and Carl Schmitt shared a common theoretical ground despite their political differences. Some also claim that they developed a personal bond again shortly before Kirchheimer’s death in 1965.
In the introduction of the fifth volume of Kirchheimer;s Collected Works, the reconstruction of their private correspondence draws a different picture. Between 1932 and 1949 Kirchheimer did not have any contact with Schmitt. Schmitt initiated the first contact after 1949. They only met twice and rarely exchanged letters. Kirchheimer avoided any close contact since his break of their bond in the early 1930s. Kirchheimer criticized Schmitt for not reflecting on and not taking on personal responsibility for his role in the crimes of the national socialist regime. In addition, Kirchheimer wrote many book reviews that were highly critical of the West German conservatives who followed Schmitt’s legal thought. It might be tempting to use Kirchheimer’s apparent association with Schmitt in Schmitt’s favour, but this would just be another attempt to exonerate Schmitt.
The answer to the first claim, of their shared theoretical ground, is more complex than the clear cut answer to the question of the personal bond. Throughout his work, Kirchheimer took positions against the idea of uncontestable state authority; against the idea of a strong executive; and on behalf of preserving the memory of Nazi crimes, especially the Holocaust. Despite this rejection of Schmitt’s fundamental assumptions, Kirchheimer’s work was still deeply inspired by different aspects of his thought. [2] In our introduction to the volume we reconstruct the influence on Kirchheimer’s last book Political Justice. The book draws on arguments from Schmitt’s 1928 book Verfassungslehre (Constitutional Theory), which includes a short section on “political justice,” but Kirchheimer does not cite the book. And although Kirchheimer was skeptical of Schmitt’s focus on “the enemy” as a political concept, Political Justice opens with the line “Every political regime has its foes or in due time creates them” (3). Political Justice plays with Schmitt’s thought, .but Kirchheimer made a decision not to honor and credit Schmitt. The influence was mutual: During the Weimar years, Schmitt drew on Kircheimer’s analyses, and after 1945, Schmitt continued to read Kirchheimer’s work. In the end, the term “left-Schmittianism” denotes not simply that Schmitt directly influenced Kirchheimer’s work, but also Kirchheimer’s intellectual affinities with writers like Max Adler or Hermann Heller associations with other theorists.
RH: The major part of this volume consists of Kirchheimer’s Politische Justiz (Political Justice). Anglophone readers might be surprised to learn that the title does not refer to a normative theory of justice. Kirchheimer acknowledges this difficulty, which in part stems from the many meanings of cognates for the Latin iustitia in languages like English or French. However, he notes that German readers will not confuse politische Justiz(political justice—the use of politicized legal procedure) with politischer Gerechtigkeit (political rectitude—the condition of being politically just, or the pursuit in politics of that which is just). What, precisely, did Kirchheimer mean by “political justice”?
CW: By using the term “political justice,” Kirchheimer was hoping to transfer the range of meanings of the German word Justiz to English. His insistence on the term has a peculiar logic, but it also shows his stubbornness in wrestling with a language that never quite became his own.
In German, Justiz refers to the judiciary as an institution: the judiciary, the administration of justice, or the justice system. It does not mean “justice” as the opposite of injustice or the ideal that normative theorists would be writing about. In English, “justice” primarily refers to a normative ideal and not to the administration of justice.
There are two main reasons why Kirchheimer was clinging to the term “political justice” even though he knew he would have to explain and, to some degree, redefine the term. The historical reason for using “political justice” is that early to mid-twentieth century German scholarship and political debate used the terms Klassenjustiz (class justice) and Politische Justiz (“political justice”). Kirchheimer use of the concept is different, but it clearly represents a response to these debates. The conceptual reason for choosing “political justice” over “political trials” is that the former term would allow for a focus on the judicial system as an institution and not just on trials as events. In practice, most scholarship ends up focusing on political trials as windows into questions about the relationship between politics and the administration of justice. Kirchheimer’s book tried to do a little bit more than that. In particular, the chapters on amnesties, asylum, and the administration of justice in East Germany don’t foreground trials; they dig into mundane judicial institutions that either prepare or neutralize political trials. So the term “political justice” might be more appropriate than “political trials” if you can ignore the problem that it is not meant to mean what it seems to mean.
RH: What is Kirchheimer’s argument for why politicized justice (or “political trials” as they are more commonly known in the anglophone world) is an essential feature of the judicial process in liberal democratic regimes, and not just authoritarian ones?
CW: For Kirchheimer, the more interesting political trials take place in liberal democratic regimes. He devotes some attention to Stalinist show trials and Nazi trials, but ultimately dismisses them as pure “theatre” that has been scripted by the regime. If the political elites fully determine the outcome of a trial, the trial is neither interesting nor capable of legitimizing their position. For Kirchheimer, the key to an interesting political trial is that there is a “political risk”: if the judges are independent enough to decide against the government, the trial constitutes a risk, but it can also be politically rewarding for the government. Political trials in Kirchheimer’s understanding take place in this space in which the government has a political interest in the trial, but not the tools to determine the outcome of the trial.
RH: In Political Justice, Kirchheimer argued that regimes use political justice for specific goals. Nevertheless, as you note in your introduction, Kirchheimer’s other, later investigations into the Soviet Union and the German Democratic Republic emphasized the “everyday practice of law” (alltägliche Rechtspraxis) as the “measuring stick” (Maßstab) by which a regime should be assessed in terms of how and in what ways it manifested legality, illegality, and the rule of law. What is “the everyday practice of law” for Kirchheimer, and how did he apply this measuring stick to the legal systems he studied?
CW: The chapter on GDR judicial functionaries is quite extraordinary. It was previously published as an article in both English and German, which explains why its method and focus departs from the general scope of the book. A few things struck me about this chapter: first, he extensively draws on East German legal sources, knowing that they describe the official ethos, but not necessarily the actual practice of courts. But instead of dismissing them as pure propaganda, he took them seriously as pronouncements about what law should be doing in a socialist country. Second, he accepted that law and legal institutions in the GDR were supposed to be different from West German law and were meant to transform social relations. This is a step that many of his Western contemporaries were not willing to take. Third, he aimed to judge how and whether East German law achieved to do what it had promised. This meant not judging East German (or Soviet) law by western “rule of law” standards, only to find it lacking. Kirchheimer applied this attention to how law shaped the lives of ordinary people not only to Eastern European societies, but also to Britain and the United States. For example, he argued that the rule of law would always be incomplete as long as social inequalities persisted and structured access to political power and social goods. The insistence on everyday lived experiences of law is certainly a reproach to everyone who would classify countries as “democratic” or “rule of law abiding” by reading their constitutions alone. If we read Kirchheimer’s skeptical review of Vyshinsky’s textbook side by side with his comments on constitutionalism in the United States and United Kingdom, we can appreciate that he knew that law and constitutions describe not what happens in the lives of ordinary people, but what political elites have decided should be happening. There is bound to be a gap between normative pronouncements about law and justice and the lived experiences of law.
RH: How should we place Kirchheimer in relation to other legal scholars who insist on the irreducibly political character of law?
LK: In 1907, Karl Liebknecht was on trial for “high treason.” He referred to this trial as “political justice” and used the term interchangeably with “class justice.” Using the concept of “class justice,” Liebknecht argued that the legal judgments are shaped by the socialization of the legal personnel. He was convinced that no one could escape the formative influence of their class socialization, which is why legislation and jurisprudence would depend on the class structure of the political and legal elites. In Political Justice, Kirchheimer explicitly rejects this concept of political justice as class justice. According to Kirchheimer, legal systems have spaces for discretion and interpretation that can be used to acknowledge and correct systemic injustices. Judges would use these spaces out of a concern with the long-term legitimacy of the legal system rather then focusing solely on the short-term priorities of the political regime they serve.
The current literature on political justice operates with a broad and a narrow version of the concept. The broader definition insists on the irreducibly political character of law. Law understood as constructed by society is always political in that sense, and Kirchheimer certainly shared that view. The problem with this all-encompassing understanding is its lack of analytic value: if everything is political, what’s the point of talking about political justice? Kirchheimer’s concept of political justice only makes sense if you can still draw a line between politics and law: they overlap but do not coincide. This is why he did not think of Stalinist show trials as political justice per se: if law was simply reduced to politics, there there was nothing left for him to theorize. For Kirchheimer, law in a democratic state addresses the common good of a society, while politics refers to the diverging interests of groups or individuals. He assigns very different purposes to legal and political action. There are many ways to criticize his view; but in the literature on political justice, you will find the argument that his definition is useful to inquire into the constitutionality and power relations in political processes. Of course, then you have to define constitutionality and the relation of politics and law in order to know if something can be named political justice.
CW: Throughout this project, I loved seeing the finds from the archive that Lisa and her colleagues had been digging up, including conversations with other scholars of political trials. Three books on political trials that were published in the early 1960s stand out as works that shaped the field: Kirchheimer’s Political Justice, Hannah Arendt’s Eichmann in Jerusalem, and Judith Shklar’s Legalism. During this time, Kirchheimer was in conversation with Shklar and Arendt. In 1962, Princeton University Press, which had just published Kirchheimer’s Political Justice, asked him to review Judith Shklar’s manuscript for Legalism. Kirchheimer wrote a favourable review, commending the manuscript for its “vividness, its challenge to established thought patterns” and the concept of legalism, although he asked for more conceptual clarity. For Shklar, legalism as a commitment to rule following is not apolitical, but a particular form of politics. And, unlike Kirchheimer, she was not afraid to call for a particular kind of politics: “there is politics and there is politics,” Shklar wrote. There are political trials that serve “the politics of persecution” and other trials that “may actually serve liberal ends” (Legalism, page 145). Kirchheimer ended up pivoting to an understanding of political trials that borrows from Shklar: in a posthumously published encyclopedia entry, he argued that political trials could be better or worse depending on the politics they served. Shklar ended up publishing her book with Harvard University Press in 1964, and in an endnote she acknowledged that her work was “much indebted” to Kirchheimer’s Political Justice.
Arendt and Kirchheimer were colleagues in New York, although he had moved on to Columbia University by the time she was hired by the New School for Social Research. They read each other’s work. In a March 1963 postcard, Kirchheimer congratulated Arendt on her recently published book Eichmann in Jerusalem: “I guess I agreed with about two thirds of what you said and my disagreements are minor and on the legal rather than a political or moral level.” In her book, Arendt cited Kirchheimer’s theory in key passages regarding the legal evaluation of the Eichmann trial. In fact, the discussions about individual responsibility, following orders, and the possibility of leaving institutions that are committed to systemic violence in Arendt’s and Kirchheimer’s books are very similar. They had read each other’s work and communicated frequently, so it might be hard to pin the authorship of an idea or concept on either of them. They both raised the problem of the gap between the ideal of personal responsibility and the rise of social institutions that rely on conformity.
One important limitation of Kirchheimer’s work is that he couldn’t quite conceive of law (or politics) outside of the frame of Western law, including its reformed and revolutionized variants in Eastern Europe. In a book review, he even chided the author for analyzing the constitutions of India and several South American states because he did not see how such knowledge could be relevant. For more recent scholarship on law and politics that views the imposition of Western legal systems by European colonial powers as a specific and incredibly damaging form of politics, Kirchheimer offers some resources, but the blind spots—which he shared with most Western theorists of his generation—should not be overlooked.
Lisa Klingsporn is a doctoral student in political science at the University of Greifswald. Christiane Wilke is Associate Professor of Law and Legal Studies at Carleton University.
[1] Otto Kirchheimer, Gesammelte Schriften [Collected Writings] (Hubertus Buchstein, series editor) (Baden-Baden: Nomos, 2017–21).
[2] For a discussion of that influence see Ulrich K. Preuß, “The Critique of German Liberalism: Reply to Kennedy” 71 (1987) Telos 97; Alfons Söllner, “Beyond Carl Schmitt: Political Theory in the Frankfurt School” 71 (1987) Telos 81; Martin Jay, “Reconciling the Irreconcilable? Rejoinder to Kennedy” 71 (1987) Telos 67.
Legal Form 