Interview with Lisa Klingsporn and Christiane Wilke on Otto Kirchheimer (Part II) — Rob Hunter

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 second of two, the first being here—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. The first featured Kirchheimer’s interest in the political ends of judicial proceedings; the distinction between Kirchheimer’s conception of political justice and Carl Schmitt’s friend/enemy distinction; and Kirchheimer’s emphasis on looking to “the everyday practice of law” when conducting legal inquiry.

Rob Hunter for Legal Form (RH): In your introduction to the volume, one of the links that you draw between Political Justice and Kirchheimer’s later work on legal practice in the Soviet Union and the German Democratic Republic is found in the figures of Andrey Vyshinsky and Hilde Benjamin. How can Kirchheimer help us to understand these figures from the legal history of state socialism?

Christiane Wilke (CW): Vyshinsky is the more commonly known name, and I was intrigued by Kirchheimer’s review of the Soviet law textbook published by Vyshinsky, but the story of Otto Kirchheimer and Hilde Benjamin is actually more fascinating for me. Hilde Benjamin was one of the very few women to study law in Weimar Germany. She founded “Red Aid”, the Communist Party’s mechanism for organizing the defence of Communists accused in political cases and supporting their families. Benjamin became to be known as “Red Hilde” and is a key protagonist in Henning Grunwald’s Courtroom to Revolutionary Stage (2012), a study of political defence lawyers in Weimar. After the 1953 workers’ uprising in East Germany, she became the Minister of Justice and reshaped East German law in the ways that Kirchheimer analyzed in his chapter on the administration of justice in East Germany. Within two decades, Benjamin made the switch from organizing radical defence lawyers in Weimar political trials to orchestrating the prosecution in East German show trials. In chapter seven of his book, Kirchheimer dissects the institutional and conceptual reorganization of East German law that Benjamin spearheaded. Only a few years later, he planned to do an empirical study of the work of East German and West German courts within larger social contexts, highlighting that he would not be interested in studying political justice in this context. He wrote her a letter detailing his request for access and also sent her a copy of his book. Her response, dated 18 May 1965, was generally positive, emphasizing that a comparative research project about legal institutions might be beneficial for the relationship between the two countries. Yet it did not contain any specific promises of access, and it came too late for Kirchheimer to still plan his research trip for the summer of 1965. The trip was tentatively planned for the summer of 1966, but in November 1965, Kirchheimer died from a heart attack. His interpretations of Benjamin’s work and his interactions with her show a genuine interest in her work: no fawning or fear mongering about “Red Hilde”, but a desire to understand the transformation of legality she was involved in. Throughout her career, she had an instrumental and political understanding of law and an appreciation of the violence inherent in legal institutions: Red Aid had prioritized the interests of the Communist Party over the individual interests of the defendants, as Henning Grunwald has shown. As a Minister of Justice, Benjamin aimed to transform social relations through transforming law in both mundane and spectacular ways; through bureaucratic changes and show trials. She wielded law as a weapon for the social change she was committed to. Within this Cold War context, Kirchheimer stands out for his willingness to understand these relationships between law, social change, politics, and violence.

RH: You note in your introduction that Kirchheimer’s “emphasis on legal practice as the measure of legality and illegality enabled [him] to elegantly avoid purely theoretical or ideological debates”. I find this interesting for a number of reasons. First, it distinguishes Kirchheimer’s contextual approach to the study of law from more formalist approaches. Second, this approach distinguishes Kirchheimer from many of his contemporaries’ polemical accounts of law in the USSR and GDR (and it enabled him to engage in the kinds of “[d]ispassionate inquiries into Soviet legal thinking” that he observed were “not too numerous throughout the Western world”). Finally, although Kirchheimer was clearly not a pure theorist, there seem to be valuable lessons for legal theory and the study of law in his emphasis on the quotidian aspects of law. May I ask you to comment on Kirchheimer’s relevance to questions of methodology and theory in legal scholarship and jurisprudence?

CW: The concept of “legal theory” can be quite fraught because it depends on assumptions about what counts as law and theory. When I was a graduate student, my supervisor half-jokingly assured me that my work is political theory “even though you use proper nouns”. I’ve been thinking about this quip a lot. Why is theory expected to be articulated in abstract terms and without any reference to places, times, and people? Assuming that theories of law don’t need such references would imply making claims to law’s universality. But this universality would not be genuine; it would simply be an act of theorizing from one place (in the West) and proclaiming these knowledges to be valid for all places. Theorists of Western law have long denied and erased other legal traditions. Kirchheimer himself only considered Western law and the law of the Eastern European socialist states, which means that he also participated in this massive erasure. But his insistence that these two different legal systems cannot be evaluated by reference to one overarching yardstick is, in my view, an articulation of a limited legal pluralism that is willing to live with deep difference and not just surface diversity. That is a good starting point for thinking about law and judgment. The second methodological implication of his approach and sensibility is, in my view, that theoretical knowledge can emerge from a close study of “law on the street”, or “law in action” as socio-legal scholar Mariana Valverde calls it [1], and that the point of theorizing might well be to understand this messy world of ours a tiny bit better. Theory, then, doesn’t live in a separate universe of abstract propositions but is directly accountable to the world.

RH: How does Kirchheimer’s work and legacy inform each of your own research interests and research agendas? What other areas of research would benefit from a renewed engagement with Kirchheimer?

Lisa Klingsporn (LK): My PhD thesis is basically addressing your second question. In my thesis, I reconstruct the influence Kirchheimer had on the analysis of institutions in the German and English language literature. It’s striking that, since the 1960s, Kirchheimer’s work influenced neo-Marxist scholarship [2] as well as democratic theory. [3] Since the early 2000s Kirchheimer is also continuously used for questions in a global setting. Why is Kirchheimer until today so attractive to such fundamentally different theoretical foundations?

While members of the Frankfurt School, like Max Horkheimer or Theodor Adorno where almost impossible to integrate into democratic theory of the 1980s and 1990s, Otto Kirchheimer’s influence on legal scholars, theorists, and social scientists never really faded. I argue that the reason why Kirchheimer remains a reference point in both Marxist and non-Marxist theories of law, politics, and democracy is that throughout his work, he managed to combine contradictory ideological elements. On the one hand, his understanding of the political as a fight between friend and foe and his structural approach to understanding politics and law, his underlying institutional skepticism, and his focus on marginalized actors with a hope for integrating socialism and democracy made him attractive to neo-Marxist theorists in the broader sense. On the other hand, democratic theorists appreciated other theoretical elements that were equally fundamental to his understanding of society and political regimes. In his early writings, Kirchheimer understood politics solely as fight between friend and foe, but during the polarizations of the Weimar Republic he also developed an understanding of politics as compromise between powerful social groups. His work combines both modes of political action. His work is of interest to democratic theory because despite his institutional skepticism, it provides concepts for institutional analysis from a critical perspective. He is a realist in the sense that he draws possibilities of change from the concrete already existing settings. And even though he pursues a structural approach of understanding politics and law, he does not interpret them as deterministic but gives theoretical space for grasping on the consequences of different interests and power holders in an institution. In my view, this innovative combination of Marxist and democratic elements has not been fully appreciated and should be the base for new engagement from a political and legal theory perspective.

CW: I’m currently working on political trials in times of political change, which I’ll call transitional trials. In his work on political justice, Kirchheimer articulated two key insights that I’m working with, but he also insisted on a conceptualization of political justice that ultimately strikes me as a dead end. The first key insight is that political trials are risky and unpredictable: if the government doesn’t control the trial, the verdict is not certain. Yet it is the lack of government control that allows the trial to be seen as legitimate in process and judgment. This insistence that trials are not just mechanisms for translating political power into legal outcomes is crucial for thinking about trials as spaces of unpredictable performances. Second, Kirchheimer repeatedly connects political trials to theatre and the stage. Sometimes he fully adopts an anti-theatrical bias that’s common in legal scholarship, but other times he is less averse to trials having a theatrical dimension. In Kirchheimer’s writings, the theatricality of political trials is observed and articulated but not theorized; it’s something of a throwaway line. More recent scholarship by Catherine Cole [4], Başak Ertür [5], Awol Allo [6], and others fully embrace the theatrical dimensions of trials and directly draw on performance studies for analyzing legal proceedings. In many ways, Kirchheimer’s book has been generative of later studies. But I think a crucial dimension of his concept of the political trial is not that helpful: he insists that in a political trial, the government (or the opposition) aims to influence the distribution of political power. At the same time, he emphasizes the unpredictability of trials and admits that governments in fact don’t control the proceedings (except for Stalinist show trials, which he’s not interested in). For this reason, I find his basic definition of political justice not very useful: why focus on the intentions of the government when these intentions might not have a direct effect on the proceedings? Although some of the new scholarship on political trials acknowledges that Kirchheimer’s concept of politics in this book is overly instrumental and narrow, Kirchheimer’s definition of political justice is still influential.

RH: Kirchheimer included a wide variety of regime types in his study of political justice. In 1968, he wrote that “[f]ew societies have been entirely free of political justice, but the continuum extends from the halcyon days of Victorian England to the delirium of Stalinist Russia”. Political justice seems to be a feature of most if not all regimes. How did Kirchheimer’s readers and contemporaries respond to such claims?

LK: The reactions in the Federal Republic were different to those in the United States. The reasons for this are rooted in the different cultures of legal theorizing. The book was first published in the US in 1961. The first review was written by none other than Supreme Court Justice William Douglas and published in the Washington Post. Douglas’ review suggests that he was offended by Kirchheimer’s claim that the Supreme Court’s judgments in cases involving Communists were cases of political justice. Douglas’ review reflects the tendency of US jurisprudence to exalt their own legal system. Despite the thoughtful reviews by other emigrant jurists and left-wing theorists, the US public largely shared Douglas’ sentiments. However, Political Justice was still read and referred to by the most important theoretical works in the field of politics and criminal trial, e.g. by Judith Shklar in Legalism or by Hannah Arendt in Eichmann in Jerusalem. The German translation was published four years later, in 1965, and received a very different reaction. Many of Kirchheimer’s colleagues and friends reviewed his work. The book became an important reference point for legal scholars, political scientists, and sociologists who criticized the politically charged prosecution of Communists in West Germany since 1951. At the same time, the book was used to account for the Weimar jurisprudence and the Nuremberg Trials.

RH: How did Kirchheimer’s transatlantic crossings and his experience of exile inform his work? How should we interpret his arguments and extend his insights today—especially in light of the disenchanted and ambivalent approach that he brought to bear on capitalist democracies in his later years?

LK: The introduction that Christiane and I wrote for the volume focuses on the decade between Kirchheimer’s first published sketches on political justice and the publication of the book in both languages. Our team’s archival research revealed that Kirchheimer started to work on Political Justice while gaining a footing at the New School for Social Research during the mid-1950s. The book also incorporates and builds on sources that he collected during his work for the Office of Strategic Service and the State Department. In addition, Kirchheimer’s own experience of refuge and exile is also reflected in the book. In terms of its theoretical orientation, the book strongly draws on the critical sociological perspectives on law and the state that Kirchheimer developed and honed during the Weimar years—we can see this in the strong influence of the thought of Rudolf Smend and Carl Schmitt. I think that current readers would benefit from appreciating these contexts that shaped the conceptualization of this historically grounded and intellectually ambitious and far-ranging monograph.

Since the days of the Weimar Republic, Kirchheimer had been skeptical about mass democracy under capitalist conditions. He was convinced that democratic institutions have to rely on the widespread acceptance of democratic norms as well as the will of political actors to shape the political order. Kirchheimer understood liberal rights and democracy as co-constitutive—a view that he expresses with reference to Hermann Heller’s Fascism and Europe in his reply to Carl Schmitt’s Legality and Legitimacy in 1933. I think that this conceptual connection remains operative in Kirchheimer’s later writings. Yet Kirchheimer also hoped that political elites would use the available space for important justice projects and that the majority of the population would respect democratic norms regardless of the relative power differential between social groups. These hopes were slowly being disappointed. This mood shapes the social philosophical analysis in „Privatmensch und Gesellschaft“ (“Private Person and Society”), the last article that was published during Kirchheimer’s lifetime.

CW: Kirchheimer started out as a German lawyer and ended up being understood as an American political scientist. He was exiled from his country as well as his profession, but his knowledge of German law and French politics kept shaping his research. Throughout his career, he has been very connected to fellow émigrés and to friends who remained in or returned to Germany. These circles of mutual support are not only visible in his correspondence, but also in reviews. Kirchheimer reviewed many books by fellow emigrants. For example, of the five book reviews included in this volume, three are of books authored by European emigrants (Schlesinger, Friedmann, Loewenstein). Kirchheimer also relied on Arkadij Gurland as an editor and translator. In addition, his intellectual production depended on the labour of his wife, and occasionally of his daughter: they typed the text he dictated to them. In looking at Kirchheimer’s legacy, we need to acknowledge the complexity of his uprooting and the networks that sustained and supported his work.

Kirchheimer’s disenchanted position on liberalism and capitalism should not come as a surprise. He had first made his mark as a socialist lawyer. The fact that he didn’t support the East German and Soviet political projects doesn’t indicate that he ever abandoned his socialist ideals. Second, he twice had to flee the Nazis. We don’t know how many friends and family members he lost and how many years he spent not knowing who had survived. In Political Justice, a few chapters stand out because the tone changes, indicating a different affective relationship to the material. The chapter about East German judicial functionaries shows curiosity with a dash of sarcasm, and the chapter about trials by successor regimes contains passionate defence of the Nuremberg trials. While the remainder of the book is written in a tone of distance and resignation, this chapter is deeply invested in defending the Nuremberg trials as a moral and legal project. For Kirchheimer, the Nuremberg trials were not just normal political trials, they were about the future about humanity.

RH: How should we reassess Kirchheimer’s legacy, and his wide-ranging interests, in light of the materials that you have brought together in this collection?

LK: The volume we co-edited demonstrates that Kirchheimer’s concept of political justice shifted with new and evolving political constellations. Our introduction and the texts that are reprinted show that Kirchheimer kept developing and refining the concept from his first use of the term in 1935 to his posthumously published encyclopedia entry from 1968. For example, his 1955 article on political justice contained a typology of four different typed of political trials—whereas the book published in 1961/1965 contained only three. In his last short publication on the subject, he developed a normative stance on political trials that was only implicitly present in his previous works.

CW: When we wrote the introduction, Lisa and I had a few discussions about the normative ideal of an intellectual, a theorist, a great scholar against which Kirchheimer is implicitly measured by intellectual historians. For decades, Kirchheimer didn’t get to simply sit down and be an intellectual. He started out as a lawyer in an intensely polarized environment, had to flee, sought work, had to flee again, and worked for the government. He was fifty years old when he became a full-time professor. This means that much of his writing was done on the side, in the evenings, and not as part of his full-time job. One aspect of his work that surprised me was how many books he reviewed for scholarly and popular outlets. Another dimension that we highlight is that Kirchheimer had a much more serious interest in studying law in Central and Eastern Europe than has been commonly understood. He was invited to testify in front of a committee of the US Congress; he wrote a long and labour intensive study about law in East Germany, and he planned a more ambitious follow-up project that he had intended to do fieldwork for in the summer of 1966, but he died in 1965.

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] Mariana Valverde, Everyday Law on the Street: City Governance in an Age of Diversity (Toronto: University of Toronto Press, 2012), 27.

[2] Johannes Agnoli and Peter Brückner, „Die Transformation der Demokratie“, in Barbara Görres (ed), Die Transformation der Demokratie und andere Schriften, 2. ed (Hamburg: Konkret, 2012), 13-94; Ulrich K. Preuß, Legalität und Pluralismus (Frankfurt am Main: Suhrkamp, 1973); Dario Melossi and Massimo Pavarini, The Prison and the Factory: Origins of the Penitentiary System (Houndmills: Palgrave, 1981); Alessandro De Giorgi, Re-Thinking the Political Economy of Punishment: Perspectives on Post-Fordism and Penal Policy (Farnham: Ashgate, 2006).

[3] See, e.g., Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus. Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Munich: Wilhelm Fink Verlag, 1976); Jürgen Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, 1981); Hubertus Buchstein, „Macht in der Kritischen Theorie. Zu einigen Problemen der politischen Machttheorien im Spätwerk von Franz L. Neumann und Otto Kirchheimer”, in Herfried Münkler and Jürgen Gebhardt (eds), Bürgerschaft und Herrschaft. Zum Verhältnis von Macht und Demokratie im antiken und neuzeitlichen politischen Denken (Baden-Baden: Nomos, 1993), 250-88.

[4] Catherine M. Cole, Performing South Africa’s Truth Commission: Stages of Transition (Bloomington: Indiana University Press, 2010).

[5] Başak Ertür, Spectacles and Spectres: Political Trials, Performativity and Scenes of Sovereignty (PhD Thesis, Birkbeck, University of London, 2015).

[6] Awol Allo (ed.), The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial (Farnham: Ashgate, 2015).