‘Learning from Franz L. Neumann: Law, Theory, and the Brute Facts of Political Life’ by David Kettler and Thomas Wheatland reviewed by Matt Sharpe

There is a lot that we can still learn from the work of Franz Neumann (1900-1954). Such is the contention of David Kettler and Thomas Wheatland’s authoritative new study of Neumann’s intellectual life and thought, Learning from Franz L. Neumann: Law, Theory, and the Brute Facts of Political Life. Neumann’s complex identity as both a thinker and activist who wrestled throughout his life with questions surrounding law, labour, rights, freedom, fascism, democracy (and how democracies fail), as well as the complex inter-relationships between the social, economic, legal and political factors that shape our societies, they contend, position Neumann as a uniquely valuable critical resource in this period of the ‘rise of authoritarian political leaders able to secure recognition from constituencies comprised of disillusioned publics and interested centres of power’ (2). They also speak to Neumann’s exemplary status as a critical intellectual (459-64).

As the author of the 1942/44 classic on National Socialism, Behemoth, Neumann is at once widely respected and comparatively neglected in scholarship. Neumann’s deep debts to Marxist thought, reflected in his central claim in Behemoth that Nazism represented not the overthrow of capitalism, but ‘totalitarian monopoly capitalism’ (255, 262, 274-92), made his work ‘easy to put aside’ in the post-war decades (2). The same theoretical commitments made his work unfashionable in postmodern academe after the 1960s. Due to his association between 1936 and 1942 with the Frankfurt School in exile, Neumann is also often sidelined as a ‘lesser’ figure within the critical theory tradition, a kind of legal-political footnote to the more prominent Frankfurt School figures (203-4).

Learning from Franz Neumann powerfully challenges these assessments. For Kettler and Wheatland, as they document in chapter six, both Neumann’s continuing interest in the economic, legal and institutional determinants of political life, and his openness to social scientific approaches (‘traditional theory’), puts his work at an important distance from that of Horkheimer, Adorno et al (211-26). Neumann’s Behemoth also explicitly challenges Pollock’s conception of fascism and Stalinism as forms of ‘state capitalism’ (274-92), a thesis which increasingly influenced the leading Frankfurt School thinkers’ positions on fascism and modernity more widely.

In fact, as Learning from Neumann makes clear, Neumann’s principal role within the Frankfurt School was legal and administrative. He published just two articles in the Institute journal. Behemoth was not published under the aegis of the Institute (205-7). Despite his important contributions to joint grant applications (including the famous Anti-Semitism study), rewriting them in forms more attractive to American social scientists (211-26), Neumann was effectively forced in 1942 to move on (204, 208-11, 245-6). He took work with the American government as an advisor on Nazism and the German economy (329-31, 339-347), before serving as advisor to Justice Jackson in the preparation of the charges for the Nuremberg trials (354-63). After the war, Neumann taught political science at Columbia and assisted in post-war German university reconstruction (chapter ten), before his untimely death by car crash in 1954 cut his thinking and life prematurely short (chapter eleven).

For Kettler and Wheatland, it is precisely Neumann’s continuing attention to legal, institutional and economic realities increasingly sidelined by his Frankfurt School contemporaries that speaks to his continuing relevance today. In a revealing retrospective written one year before his death (chapter four), Neumann defined himself as a ‘political scholar’ (83). This means not simply a ‘theorist’, although Neumann’s deep immersion in the history of ideas is one dimension of his work (121-34, 254-62, 237-44, 432-60). Such a scholar is also someone who, seeing the limits of theoretical constructions faced with the complexity of socio-political life, is ‘compelled to deal with the brute facts of politics’ and ‘fights […] actively for a better, more decent political system’ (83), bridging theory and practice.

As chapters two and three of Learning from Neumann detail, after taking his PhD in law in 1923 (writing on penal law), Neumann cut his political teeth in the class struggles of the Weimar years, working as a legal advocate for the trade unions, then the SPD. Neumann’s theoretical work at this time was deeply shaped by debates within the Marxist tradition concerning the relationships between economic base and the legal-juridical superstructure, state and society, and liberal and socialist conceptions of politics which Learning from Neumann impressively unfolds (10-40). Drawing on Karl Renner’s work on the sociology of law (20-21), Neumann develops in his work of this period an imminent critique of the liberal rule of law whose broad parameters he would continue to adhere to and develop through his life (121-34, 237-44).

On the one hand, as Kettler and Wheatland examine, Neumann continues to see liberal commitments to formal equality as an ‘ideology of concealment’ serving to obfuscate the relations of power enshrined in workplaces and also in market relations (2, 37, 50-2). The limited validity of forms of liberal natural rights as an ‘expressive ideology’ in conditions of free market capitalism (50), moreover, has been undermined in the twentieth century by the concentration of wealth in the hands of large interests and cartels able to exercise monopolistic, ‘anti-competitive’ powers (45-7, 51, 56-60, 179-83, 269, 271, 274-92).

On the other hand, Neumann rejects reductive claims that the legal and political ideologies and superstructure are either wholly structurally epiphenomenal, or politically to be jettisoned by the left as wholly ‘lies’ (21-3, 26, 441-2). Certainly, the liberal conception of equality before the law continued to be used in Weimar (including by Carl Schmitt and his followers) as a means to oppose progressive reform (50-4), and Neumann will always maintain that a tension exists between liberal and democratic conceptions of rights and freedom. Yet the liberal conception of the rule of law, grounded in the early modern notion of government by consent operative even in Hobbes (242, 317), also for him has an indispensable ‘ethical function’ (131-2, 173, 275). This is protecting the weak against dictatorial power of the kind Schmitt and others were proposing by appeal to Article 48 of the Weimar Constitution, and which would duly be implemented in the final years of Weimar, then by Hitler and his henchmen (63).

The increasing undermining of liberal rights and market competition by economic realities in the era of monopoly capitalism, Neumann argues, is a result of the growing social and ersatz political power of big business. This is why, as Neumann would contend in several articles of the 1930s and again in Behemoth, the National Socialists were so soon able to secure the support of big capital, quickly implementing laws to promote monopolistic combines, and violently crushing the independent trade unions, Social Democrats and Communists (273-92).

Chapter eight is a dense but invaluable, nearly-80 page exegesis of Neumann’s masterwork, beginning from his essay on the multiple causes of ‘The Collapse of the Weimar Republic’, which is again of telling relevance today (250-54, 97-102). These causes include crippling disunity amongst the left, the excessive bureaucratisation of the SPD, the failure of union activism in conditions of growing unemployment, as well as the concerted efforts by reactionary forces associated with the state bureaucracy, Jünker and business classes to overthrow the ‘foreign”’constitutional system, not least insofar as it enshrined (as Neumann would always stress) deeply progressive elements in its second part detailing ‘Basic Rights’ – including the rights of trade unions to organise, strike and even socialise some industries (64, 66, 72-3, 75). Weimar, Neumann would famously say, committed suicide and was murdered simultaneously (102).

As Learning from Neumann shows, nowhere is Neumann’s distance from his Frankfurt School contemporaries clearer than in this assessment of National Socialism. Far from a triumph of ‘instrumental reason’ or ‘state capitalism’, Nazism in power was for him a ‘non-state, a chaos’ (254-60, 316-21). It involved an always unstable, dynamic, continually negotiated compromise between four oligarchic forces (state, army, big business and the party) (273-5, 319-20). This monstrous non-whole was predicated on the complete destruction of calculable, rational legality (183-6, 313-6). It operated, as such, through the atomisation and massification of the German people, including the destruction of all independent forms of social organisation, through propaganda, institutionalised criminality and terror (294, 300-4, 308-12, 319).

Opposing fascism, on such a view, does not point towards a vague overcoming of ‘modernity’ or ‘the enlightenment’ ironically proximate to that embraced by Nazism’s votaries. As already in Neumann’s two-sided dialectical treatments of the changing function of modern law, Neumann’s position points instead towards the need to identify and defend progressive elements within modern institutions and thought that can prevent the rise of the forms of anxiety, alienation and apathy (440-7, 449-54) which seed ‘Caesarism’, the likes of which we are presently experiencing once more.

For Neumann, as Learning from Neumann shows, the defence of the liberal rights and rule of law is insufficient to promote democracy. Nor is it enough to prevent growing economic, social and political alienation in societies in which there are vast, inequitable concentrations of economic, political and symbolic power. But the basic protections of rational law remain necessary, for Neumann, if societies are not to become totalitarian (129-46, 275).

On top of defending legal rationality, we need also for Neumann to promote what his programmatic essay ‘The Concept of Political Freedom’ identifies, first, as ‘volitional’ freedom (448-9). This is the active engagement, and material power, of people acting in common to shape the socio-political conditions that govern their lives; what Neumann, Napthali, Heller and others had spoken of during the Weimar years as ‘economic democracy’, ‘social freedom’, ‘the rule of social law’ or ‘self-determination’ (33-4, 38, 52, 55-6).

Second, we need to foster a ‘cognitive concept of freedom’ (445-7); populations educated about the natural, historical and psychological worlds. Only in this way can we prevent peoples being seduced by the kinds of conspiratorial narratives that today swarm on ‘Alt’-sites online, which promise ‘falsely concrete’ explanations of peoples’ distress, blaming internal and external enemies (457-64), and set up the longing for authoritarian saviour-leaders who promise ‘to do whatever it takes’ to set things right (453-8).

It is beyond the scope of this short review to detail all of the merits of Kettler and Wheatland’s scholarly, timely study of Franz Neumann’s work, ‘through his years of political study and intervention, acknowledging his evasions, errors and perplexities’ (467). Given the comparative dearth of work on Neumann, Learning from Neumann represents a landmark in the reception of Neumann’s thought, alongside of William E. Scheuermann’s work (1997), and recent work by Christian Fuchs (2017). The book’s fine-grained analysis of Neumann’s German and English language works, including his letters and contributions to academic grant proposals, opens archives of new material to Anglophone scholars. Learning from Neumann also amasses a wealth of detail concerning the debates within (and agonies of) the Weimar left, the inner life of the Frankfurt School, the OSS and the US government’s wartime attempts at understanding Nazism, as well as the preparation of the Nuremberg trials. The authors’ combination of intellectual history, biography and theoretical reconstruction shows Neumann, in the closing words of the book, as a thinker whose ‘career exemplifies the highest standards of [political understanding], due ultimately to his deep respect for evidence and his openness to instruction through experience as well as the thoughts of others’ (467).

This reviewer only laments two things: the first, the absence of a more sustained engagement with Neumann’s critique of authoritarian-come-Nazi jurist Carl Schmitt given the latter’s resurrection in the new millennium, including on the academic left; and second, the failure to pursue further analyses of the troubling contemporary developments that frame Leaning from Neumann, using the complex dialectical resources Neumann developed in his short life, especially in the poignant but single-page conclusion.

27 January 2020