Politics And The Rule Of Law
Pachter, Henry
POLITICAL JUSTICE. THE USE OF LEGAL PROCEDURE FOR POLITI CAL ENDS, by Otto Kirchheimer. Princeton University Press, 1961, 452 pp. $8.50. At the outset, Dr. Kirchheimer explains that his...
...It is easy to rise in defense of an innocent man, and to rise the liberals need to believe their heroes not only innocent but on the side of the angels...
...A man was denied justice for political reasons, and not just everyman but the French courts, too, agreed what kind of wrong had been done him...
...Had he wished merely to propagate his convictions, Agartz would not have had to violate any law...
...In a country much given to a positivistic approach which holds that "the law is what the judges say," it is still not considered proper to write, as the author does, that the judges say what helps to make the political regime workable...
...but it obviously is entitled to apply to a conspirator the same harsh law of repression that he threatens to use in case of success...
...His attack is directed against the very notion of abstract justice, the ideology by which the justices live and which sustains the confidence of citizens in the society in which they live...
...Since this conflict is inherent in any judicial system, the book uncovers the sources of genuine tragedy, particularly in the moving passages where the author discusses the role of the judge...
...Had he merely accused the justices at times of perverting the absolute ideal of Justice, they might have applauded his elaborate marshalling of the evidence...
...People who fight for "Justice" know exactly what they mean, and they measure the justice of their regime by standards derived from ideas which have a content...
...At this point, however, a strange circle closes, and by the author's admission it is a vicious one, from which he escapes only through prayer — not a very convincing proof of a radical attitude...
...And, remembering the dedication "to the past, present and future victims of political justice," we must suspect that while Dr...
...Offhand, they should welcome a proof that the poor man or the non-conformist is always hung...
...He therefore claims to speak in the name of Justice, and he probably would not act unless he believed this...
...Justice itself is a content to be fought for...
...The literature which exists is either so highly principled that it never comes down to the consideration of specific issues, or so narrowly operational that it remains unaware of any issues...
...Hence the lawyers reacted to this book as though they had been stung, or simply refused to understand what the author tries to say...
...This makes it very clear where the author parts company with the liberals...
...The illusion of a "just" law, in turn causes people to bear even a severe, unjust regime...
...He has placed the operations of political justice into a precise sociological context and he has reduced the abstract principles to concrete political meanings...
...In an age that has allowed Freud to enlighten us on the earthy nature of our most sublime dreams, the administrators of justice still abhor the suggestion that Justice is anything but a flowingly clad virgin blindly weighing right and wrong in an ideal balance...
...between, for example, Agartz, a West German labor economist, who posed as a bona fide trade union official but actually received subsidies from Ulbricht—and a person who tries to maintain contact with the Protestant Church behind the Iron Curtain...
...But Dr...
...Worse befell in the SaccoVanzetti case: an innocent man was condemned to die, and ever since, each death sentence by an American court threatens to become an international political scandal...
...The harsh realities which, in the framework of his theory, stand out even more harshly, cannot fail to arouse the citizens to defend that justice which he says does not exist...
...It is not quite as easy to see why liberals, too, felt challenged by Kirchheimer's contention...
...No wonder that to a man the legal profession—including some highly respected liberals such as Justice Douglas— has condemned the book, rejecting its basic contentions and attacking its scholarship...
...His Protestant counterpart cannot act —even if it were only to tell his friends that they must obey Ulbricht's laws— without violating the law...
...The comparison may well show the cause of this reviewer's misgivings...
...Kirchheimer has forbidden himself to wax indignant...
...With his attitude Kirchheimer manages to remain objective and serene in describing, one after the other, the measures West Germany takes against communists and East Germany against the majority of its subjects...
...Kirchheimer's scholarly mind is debunking the academic ideology of "justice," his heart believes in the reality of injustice...
...For his approach does not permit us to distinguish between a rebel who suffers injustice for the sake of a majority and of democracy—say, Kenyatta— and one who tries to subvert or suppress majority rule...
...But Kirchheimer has cut off the source of their indignation: by denying any absolute standard of justice, he deprived them of precisely the ideal which they accuse the establishment of perverting...
...But this is not his concern, or only incidentally...
...For a regime breaks down when people no longer identify the laws (and their administration) with such an ideal yardstick...
...Clemenceau led the just cause to triumph through a political trial...
...Princeton University Press, 1961, 452 pp...
...Kirchheimer admits elsewhere that an open, democratic society is helpless where a true majority movement tries to change the regime...
...Kirchheimer has done something which to our knowledge has never been tried before...
...Agartz chose to be an undercover agent in an open society, rejecting its privileges of free speech and personal security...
...In denying this, Kirchheimer has deliberately muffled the impact of an otherwise moving presentation...
...In this case the courts which ought to have defended the establishment, in fact were used for its discomfiture...
...THE USE OF LEGAL PROCEDURE FOR POLITICAL ENDS, by Otto Kirchheimer...
...He reveals the conflict between the abstract principles which any code of law of necessity must pretend to follow, and the individual value system of this judge, that defendant or the present author...
...Had Kirchheimer confined himself to the charge that occasionally Justice peeks out from under her blindfold, they might have agreed...
...There must be a difference between arbitrary govern...
...But surprisingly, Kirchheimer does not deal with these cases, because in his view a martyr cannot be innocent, as Sacco and Vanzetti were...
...Place this book by the side of Godwin and Thoreau...
...But a radical, like Kirchheimer, will defend his hero precisely where he is guilty in terms established by the regime...
...Kirchheimer explains that his title refers not to "the search for an ideal order" but to "the most dubious segment of the administration of justice"—that whose function it is to "eliminate a regime's political foe according to some prearranged rules...
...Zola was condemned, then vindicated...
...Take the Dreyfus case, which still, besides the Zenger and the Sacco and Vanzetti cases, is the liberal's grand exhibit...
...The concept of Justice hence is more than an ideology, and people who think they know "what is just" are not the victims of "a necessary delusion in an antagonistic society...
...This position probably is hard rationality by academic standards, but is it as radical politically as the author wishes to be...
...ntent defending itself against democracy and democracy defending itself against usurpers...
Vol. 9 • July 1962 • No. 3
