Download “Weimar and Labor” as Legacy

“Weimar and Labor” as Legacy:
Ernst Fraenkel, Otto Kahn-Freund, and Franz L. Neumann
David Kettler
Bard College
1.
In her pioneering study of political emigration as social formation, Nina Rubinstein
concludes that, contrary to Georg Simmel’s theses about the superior social insights of the stranger,
political emigrants are likely to find themselves so absorbed in making sense of their own painful
and constricted situations that they lose insight into historic structural changes both in their place of
refuge and in their place of origin. They mutually reinforce one another within a sociable and
ideological space that narrows the range of acculturation.1
While I treat her claim as a heuristic intuition rather than a testable proposition, I find that it
illuminates some puzzling limitations in the thought of an émigré generation celebrated for its
possession of just the structural vision that Simmel credits to the stranger. Deformations of thought
are not limited to nostalgic or bitter fixation on the past; they can also take the form of rigidity about
the range of variables relevant to a situation, overvaluing their presence or absence, or inflexibility
about the key questions to ask. The old template disturbs the mapping provided by the new. The
signs of this condition include astonishing omissions, stubborn paradoxes, and, at the end of the day,
disappointment and regret.
1
Nina Rubinstein, Die französische Emigration nach 1789. Ein Beitrag zur Soziologie der politischen Emigration, ed. Dirk Raith,
with contributions by Hanna Papanek and David Kettler (Graz: Nasner & Nausner, 2000); Georg Simmel, “The Stranger,” The Sociology of
Georg Simmel, trans. Kurt H. Wolff (New York: Free Press, 1950) 402–08; cp. David Kettler, “Self-Knowledge and Sociology: Nina
Rubinstein’s Studies in Exile,” Intellectual Migration and Cultural Transformation, ed. Edward Timms and Jon Hughes (New York: Springer,
2003) 195–206.
2
Yet even if these are indeed accidents common to exiles’ styles of thought, these obstacles to
the flexible realism that Rubinstein used as a standard are not necessarily obstacles to understanding
in all senses. Like caricatures—or utopias—these ways of seeing, especially as they are typically
animated by deep convictions of ethical seriousness and profound affections of the heart, disrupt
banality and complacency. Knowing matters desperately. Perhaps precisely these wounds help to
explain the extraordinary success of the German intellectual and cultural emigrants of the Hitler era
as inspiring teachers, a quality often noted but too rarely examined.
The ambivalence of the post-1933 refugees about the Germany they had left behind is
famous. There was the Weimar of culture, promise, and excitement; and there was the Weimar of
helpless or complicit abandonment to evil political forces. One of the more specific paradoxes of
exile opinion about Weimar was the inclination to condemn the Social Democrats and trade unions
for their failure to muster the political will and organizational resources to fight the Nazis, combined
with an almost equally prevalent inclination to praise the social policies of the Republic, notably in
improving the abysmal conditions and servile status of the working population, as its highest
achievement and most precious legacy. Yet these two aspects of Weimar were arguably connected,
with the priority assigned by the main working-class organizations to the “social gains of the
revolution” exacting a heavy cost in organizational energy, bureaucratization, and the
demobilization of memberships. Some prominent exile writers insisted on the direct causal
connection, of course, and avoided the paradox by disparaging the achievements. These included
Communists and others on the Left and economic liberals and conservatives of the Center-Right
hostile to the re-distributive interest-group politics of the epoch, as well as independent thinkers like
Hannah Arendt, whose conception of the clash between the social and the political surely drew on
perceptions of the Weimar anomaly. Our present interest, however, focuses on the more widely
3
shared view and specifically on three prominent and professionally successful members of the
emigration—Franz L. Neumann, Ernst Fraenkel, and Otto Kahn-Freund—for whom this tension
remained close to the center of their thoughts in exile—as it had already been, in varying degrees
and in different forms, during the last Weimar years. Weimar Sozialpolitik (both policy and politics)
as precipitated in Weimar labor-law practice had been their vocation; and the question of the links
between that policy and the political catastrophe of 1933 was a question that went to their own lives
and responsibilities.
During a remarkable seminar on the “methods of social inquiry represented by the institute”
held among the associates of the Institute for Social Research in New York in January of 1941,
Herbert Marcuse argued repeatedly that the naive questions of Americans about the grounds and
proofs of their theory should be answered simply by reference to their “experience”—not the
unmediated “Erlebnis” but the instructively structured “Erfahrung.”2 Marcuse does not carry the
others with him, including his close friend Neumann, but he is pointing to something important
about emigrants’ convictions: where they have been, what they have done, and what has happened
to them has taught them something that underlies everything else they know, something that others
must somehow also learn from. For Fraenkel, Kahn-Freund, and Neumann that locus of experience
was “Weimar and Labor.”3
Reflecting on the course of their lives in exile, all three concluded that they had made a
decisive breach with their pasts, that they had each undergone a decisive moment where they had
concluded that they now belonged to their hosts and no longer to Germany. At one level, the
evidence bears this out, even in the case of Ernst Fraenkel, who spent the last twenty or more years
2
Seminar Protocol: “Debatte über Methoden der Sozialwissenschaften, besonders die Auffassung der Methode der
Sozialwissenschaften, welches das Institut vertritt,” Max-Horkheimer Archiv (MHA) IX.214, 17 January 1941.
3
For Ernst Fraenkel, see Hubertus Buchstein and Gerhard Göhler, Vom Sozialismus zum Pluralismus (Baden-Baden: Nomos, 2000),
and studies cited there. For Otto Kahn-Freund, see Roy Lewis and Jon Clark’s introduction to Otto Kahn-Freund, Labor Law and Politics in the
Weimar Republic, ed. Roy Lewis and Jon Clark (Oxford: Basil Blackwell, 1981) 3–69. The literature on Franz L. Neumann is more extensive;
4
of his life in Berlin.4 Interestingly, however, Rubinstein postulates such an “Umbruch” as in fact
constitutive of political emigration rather than its overcoming: the moments reported by Fraenkel,
Neumann, and Kahn-Freund are in fact ambiguous as between their own characterizations, in terms
of transition to immigrant status, and hers (confusing wording?). They had indeed left the Germany
from which they were exiled; yet it is surely also accurate to say that they never wholly freed
themselves from the special place which is the locus of exile. In some current discourses, this is
thought to be a highly privileged place, uniquely unconstrained and conducive to autonomous
thought. That is not what I find in these stories. They are ghost stories, if also of a highly
sophisticated kind. A remarkable coincidence is that Neumann, Fraenkel, and Kahn-Freund, after the
utter defeat of their enemies and careers of striking achievements, were all three overtaken by
disappointment and unease. I submit that this can be accounted for, at least in part, not simply by the
effects of exile, but by the effects of exile on individuals engaged in the kind of project that was
deeded to these figures by Hugo Sinzheimer5 and their by experiences of Weimar.
My study will have several parts. First, I review the Weimar careers of Neumann, Fraenkel,
and Kahn-Freund in order to explain the political project implicit in their labor-law practice and to
clarify their status as political emigrants. Second, I examine their work in the period of exile
properly so called, with special attention to their contrasting treatments of the labor-law legacy,
ranging from Kahn-Freund’s joyful undertaking to give it a new life under more favorable
conditions in England to Neumann’s fluctuations between its dismissal as a fateful anachronism and
a lingering conviction that it was still somehow of special importance. Third, I turn to the post-war
basic are Joachim Perels, ed., Recht, Demokratie und Kapitalismus. Aktualität und Probleme der Theorie Franz L. Neumanns (Baden-Baden:
Nomos, 1984), and Peter L. Intelmann, Franz L. Neumann. Chancen und Dilemmas des politischen Reformismus (Baden-Baden: Nomos, 1996).
4
For a general statement see Franz L. Neumann, “The Social Sciences,” The Cultural Migration. The European Scholar in America,
Franz L. Neumann et al. (Philadelphia: U of P Press, 1953), 4–26.
5
For Sinzheimer, see David Kettler, “Works Community and Workers’ Organization: A Central Problem in Weimar Labor Law,”
Economy and Society 13 (1984): 278 ; Otto Kahn-Freund, “Hugo Sinzheimer 1875–1945” (1976), Labor Law and Politics 73–107; Ernst
Fraenkel, “Hugo Sinzheimer” [1958] in Ernst Fraenkel, Recht und Politik in der Weimarer Republik, Gesammelte Schriften vol. 1, ed.Hubertus
5
period, when they ceased to be forcibly excluded from Germany and became free to decide whether
and how to negotiate an entry into a constitutional politics conducted under the slogan that “Bonn is
not Weimar,” or, indeed, whether to orient themselves rather to the “other” Germany whose
constitutive myth claimed direct continuity with a version of “Weimar and Labor.”
2.
Ernst Fraenkel, Franz L. Neumann, and Otto Kahn-Freund were apprenticed to labor law
under Sinzheimer in the early 1920s. Fraenkel had served in the war, being two years older than the
other two, who were born in 1900, but all three can be said to belong to the Weimar generation
(capitalize both words?) in the fullest sense, the cohort who came of age in the Republic. In addition
to their common relationship to Sinzheimer, they were united by membership in the student wing of
the Majority Socialist Party and by ties of personal friendship. Neumann and Fraenkel set up a joint
law firm in Berlin after their terms with Sinzheimer, quickly capturing prized assignments as
contractual lead counsels to the two largest unions, to which Neumann added the Social Democratic
Party itself during the last year of the Republic; and Kahn-Freund joined them in the capital in 1931,
serving as a beginning judge in a local labor court. They met regularly for all-night debates about the
politics and law of the time.
All three, moreover, published some widely noticed articles beyond the limits of the
technical and trade union press, intervening in politically charged policy debates about the “social
constitution” of Weimar and its institutions. During 1929, for example, both Neumann and Fraenkel
contributed to Die Gesellschaft, a theoretical journal initiated by Rudolf Hilferding but controlled
during Hilferding’s term as Minister of Finance by Albert Salomon, a key member of the Socialist
Buchstein (Baden-Baden: Nomos , 1999), 620–31; S. Knorre, Soziale Selbstbestimmung und Individuelle Verantwortung (City: Publisher, 1991);
A. J. Hoekema, ed., Hugo Sinzheimer: Rechtsvormer, Arbeidsjurist en Rechssocioloog (City: Publisher, 1993).
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intellectual circle that had originated in Alfred Weber’s Heidelberg.6 Their support of the forms in
which unions and the Social Democrats used their power before 1930 was incisive and strong.
Neumann’s article was an attack on proposals to formalize judicial review. He argued that the
court’s readings of equality before the law institutional guarantees would jeopardize Socialist plans
for legally recognizing the ethical differences between the claims of corporations and the labor
movement: they could bring about “American conditions,” where rights of property rule. Fraenkel’s
article celebrated the “collective democracy” of autonomous social formations, notably labor unions,
whose unwritten insertion into the constitution compensates for the declining popular investment in
parliament (caps.?) and whose participation at every level of state activity, including administration
and justice, enables the state to act as an agent of democratic defense and social change, a
conception that he fought to salvage through a campaign of strategic retreats in the same publication,
ending in August of 1932 with proposals for constitutional reform, which the journal published but
disowned.7 Neumann and Fraenkel also both published in Die Justiz, a journal in which Sinzheimer
played a leading role and which spoke for and to the small minority of working jurists who
supported the democratic republic (caps.?) and who assailed the predominant rightist (cap.?) bias of
the unreformed bar and bench. Fraenkel, in fact, chronicled the last months of the constitutional
regime in that periodical, taking over Sinzheimer’s monthly commentary on the political
ramifications of court decisions and other legal developments in 1931.8 Throughout, their analyses
integrated work on the law with discursive political action, in keeping with Sinzheimer’s insights
into the dynamic sociological bases of even the most formalized legal order, as well as their own
conviction that political mobilization was required to sustain and strengthen the underlying social
6
Ernst Fraenkel, “Kollektive Demokratie,” Die Gesellschaft 6.8 (1929): 103–18; Franz L. Neumann, “Gegen ein Gesetz zur
Nachprüfung derVerfassungsmässigkeit von Reichsgesetzen,” Die Gesellschaft 6.6-1 (?) (June 1929): 517–36.
7
Ernst Fraenkel, “Verfassungsreform und Sozialdemokratie,” Die Gesellschaft 9.8 (August 1932): 109–24.
8
See Ernst Fraenkel, Recht und Politik in der Weimarer Republik 545–615. See also Hugo Sinzheimer, Die Justiz in der Weimarer
Republik, ed. Thilo Ramm (Neuwied/Berlin: Luchterhand, 1968).
7
development towards a more socially just society.
In the last years of Weimar, their tone became increasingly alarmed and defensive, with
growing uncertainty about the changing and ever less congenial functions of the hard-won design for
labor. Kahn-Freund’s best-known Weimar publication, accordingly, was a monograph published in
1931 in which he pointedly maintained that the jurisprudence of the national labor court could best
be understood as an approximation of the social ideal of Fascism, making his argument without
polemics through a comparison between four cardinal doctrinal rationales and primary elements in
Mussolini’s Carta di Lavoro.9 Although Sinzheimer had been the foremost proponent of the labor
court scheme, he and others in the group stood up for Kahn-Freund when the trade union official
most involved in labor’s dealings with the courts attempted to have the book suppressed. All three
lawyers, like Sinzheimer himself, concluded that their labor law was in a mortal crisis, primarily
because the labor movement had compromised its freedom of action by reliance on state agencies to
compensate for its lessened bargaining power in a declining and ever more controlled economy.
This combination of negative objective conditions and deficient organizational capacity they hoped
to counteract by mobilizing support for changes in economic law to weaken the positions of the
cartels and monopolies they believed to be in command. But they did not abandon the basic
threefold vision. The common ground was a political defense of the rule of law, including the
legislative primacy of parliament (cap.?), and the use of all their lawyerly guile to talk the
historically autonomous labor movement free of its tutelage to the bureaucracy and the courts. Their
sustained efforts in these directions were not, as especially Neumann later claimed in self-reproach,
a function of some naive idealization of the supposedly neutral state and its legal forms, but a wellconsidered bet on their strongest card, given the historical strength of the respect for law, the
yearning for equal justice, and the old union loyalties among the German working class. As Kahn-
8
Freund later said about Sinzheimer, they conjoined legal and political roles in a complex
complementarity.10
Even after Hitler came to power, Neumann, Kahn-Freund, and Fraenkel did not evade the
implied responsibilities to persons as well as causes. They worked to the limits of their metier, above
all in order to dramatize the clash between the legal order and the Nazi regime. Neumann attempted
to defend the Socialist press against repression, supporting his forceful legal case with a pamphlet
that was immediately suppressed and that led to Neumann’s inclusion in an early list of those
deprived of citizenship. Kahn-Freund’s last act as labor court magistrate was to order the
reinstatement of three radio technicians dismissed by the broadcasting service on the grounds that
their alleged Communist Party membership made them a risk to the broadcast of Hitler’s inaugural
speech. Then, in the summer of 1933, both Neumann and Kahn-Freund fled into exile to escape
almost certain internment in a concentration camp. Fraenkel followed a different strategy. Because
he was a veteran of the war and married to a non-Jewish wife, he was able to continue functioning as
a lawyer for another five years. During that time he defended Jews and other individuals denied
respectable counsel, although he refused anyone plausibly linked to Communism and once defended
his license against a charge of giving such aid. It was unheroic work but it was nevertheless
important to individuals, especially from the labor movement, and it was evidently accompanied by
clandestine support for illegal social-democratic (caps.?) groups that circulated suppressed
information and maintained organizational contacts.11 After 1938, like Sinzheimer himself, who had
been invited to establish labor law at the University of Amsterdam, the three friends were in exile.
9
Otto Kahn-Freund, “The Social Ideal of the Reich Labour Court” [1931], Labour Law and Politics 108–61.
Cp. William E. Scheuerman, Between the Norm and the Exception (Cambridge, MA: MIT Press, 1994).
11
Correspondence between Fraenkel and Kunisch, Prussian Ministry of Justice, 20 February 1934. Bundesarchiv Koblenz, N1274/70.
For an overview, see documents in Ernst Fraenkel, Nationalsozialismus und Widerstand, Gesammelte Schriften vol. 2 , ed. Alexander v.
Brünneck (Baden-Baden: Nomos, 1999) esp. 475–84 and 628–44.
10
9
3.
Since Sinzheimer’s legacy was contested, even among our three writers, its characterization
for present purposes must be quite general. It involved, first, a model of legal practice that brought
together care for legal rights and institutions with integral advocacy of progressive social change.
Sinzheimer’s example appeared to offer a “unity of theory and practice.” (quotation from where?)
The American concept of “cause lawyering” comes close, although the German idea of labor law,
especially after 1918, was oriented more to what it took to be the immanent logic of social
development than to the aspirations of victimized and excluded groups. There could be no tension
between serving the individual client in the specific case and serving the cause. Moreover, one’s
knowledge was itself a factor in reshaping both law and society if enunciated on professional
occasions in a professional way, if only because, in the continental context, the state of the law could
be as much a function of prevailing opinion about the law (die herrschende Lehre) as of the largely
implicit rationales of decisions. More broadly, especially in the context of Weimar Germany,
Sinzheimer saw an integral link between law work and constitutional politics.
Second, the concept of labor law was meant to point towards a transformation of the legal
system as a whole. While the formal rationality of law and its positivist analysis remained as the
point of departure, the sociological method showed, first, that the codified legal forms were
undergoing a change in social function and, second, that new normative social patterns demanded
legal ratification and ordering. At the very least, the subsequent rise of a legal domain in which the
social reality of dependent labor is recognized and the social consequences of that dependency are
counteracted—through direct measures of protection and support but above all through the
legitimization of collective self-assertion—was thought to provide a measure of parity in a legal
order that was otherwise found to serve the multiple powers of private property. At most the labor
10
law represented a field for cumulative development towards social democracy. That is why the labor
law epitomized the social gains of the revolution, although its effects were seen to depend above all
on the strength and efficacy of organized labor.
Third, the conception of labor’s rise as embodied in recognition of a social law and
constitution within a democratically governed state meant a reconciliation between the uncertain
year-to-year political consequences of a system grounded in a sovereign, freely elected parliament
on the one hand and, on the other, the steadfast guarding of labor’s self-activity and cumulative
achievements in social relations.12
Let me anticipate the main themes in the three ways pursued by Fraenkel, Neumann, and
Kahn-Freund, respectively, in managing this legacy in exile and after. First, all three continued to
think of their practice as the enactment of a theoretical design and to think of their theory as a
rationale and context for their practice. Perhaps we can say in shorthand, if this is not understood as
pejorative, that they had a more rhetorical than philosophical conception of theory. The
epistemological puzzling that is sometimes said to be typical of the Weimar conversation (?) was
alien to them13; theory was to be judged by its uses and purposes. This is easiest to show in the case
of Kahn-Freund, who resumed work as a lawyer and delighted in the unphilosophical posture of the
common law. Neumann and Fraenkel both ended up as professors of political science, but their
respective conceptions of political theory retained the priority of purposiveness. “Theory,” as
Neumann used the term, was an intervention in the power conflicts of political life effectively
indistinguishable from ideology; given his distinction, offered already in his 1923 dissertation,
between ideologies that are designed to obscure motives and ideologies that adequately express
them, and given, as well, the ideal of theories with emancipatory effects. Even when commenting on
11
theories he admired most, he dismissed their philosophical grounding as mere metaphysics.14 For
Fraenkel the transmutation of the legal construction of theory had more the sense of a cultural
intervention, a pedagogical act, in the sense of Bildung. What is common to all three is, first, the
indifference to philosophers’ preoccupations and, second, the notion of theoretical work as a part of
(re)constitutive politics. The question about all three, but especially the two certified as political
scientists, is whether their projects were ever taken at face value where they worked, as emigrant or
returned emigrant—whether they were not destined to be seen as purveyors of stimulating “ideas”
which were really byproducts of projects which remained alien. In the debate about the roles of
Neumann and Fraenkel in the formation of German political science, the issue is sometimes stated in
terms of their roles in introducing American political science. What is neglected is that their
relationship to American political science was in fact remote—ironic in the case of Neumann and
romantic in the case of Fraenkel—and curiously non-professional. Their vocational advocates’
conceptions of disciplined inquiry and theory played a part in this distance.
A common feature of their management of their new situation was that all three returned to
school, Neumann and Kahn-Freund at the London School of Economics, and Fraenkel, some years
later, at the University of Chicago. Thanks to support from refugee relief organizations (and thanks
as well, doubtless, to their profiles among political groups opposed to Hitler in their host countries),
Neumann earned a Ph.D. in Political Science under Harold Laski with a dissertation on the
12
David Kettler, “Hugo Sinzheimer: Advocacy, Law and Social Change,” Mededelingen 6. Hugo Sinzheimer Instituut voor onderzoek
van arbeid en recht, ed. A. J. Hoekema (Amsterdam: Hugo Sinzheimer Instituut, 1993; expanded, Bard Journal of Social Sciences 2.7–8 [April–
May 1994]: 12–20).
13
John Gunnell, The Descent of Political Theory (Chicago: U of Chicago P, 1993).
14
David Kettler, “Introduction: For Franz L. Neumann,” Domestic Regimes, the Rule of Law, and Democratic Social Change,
Mobility and Norm Change vol. 3 (Berlin: Galda & Wilch Glienecke, 2001). Neumann’s conception of political theory is clarified in the course
of his interventions in a Rockefeller Foundation undertaking to expand its activities in legal and political theory. His position is set forth at length
in two sets of materials to be found in the Rockefeller Foundation Archives, the Proceedings of the First Conference on Legal and Political
Philosophy, Oct 31–Nov. 2, 1952, at Arden House (RF/RG3/910/9/81-2) and his correspondence with J. H. Willets not only about this conference
(Nov. 12, 1952: RG3/910/8/75) but also about Neumann’s last major research project, “Political Systems and Political Theory” (Nov. 5, 1952:
RG 1.1/200/320/3805). See David Kettler, “Negotiating Exile: Franz L. Neumann and Political Bildung,” Contested Legacies: Sixteen Chapters
on the Vicissitudes of Bildung in Exile, ed. David Kettler and Gerhard Lauer (forthcoming).
12
governance of the rule of law,15 and the other two took degrees in law. Without by any means
guaranteeing them ordinary vocational careers, these formalized acculturation exercises placed them
at some distance from the bulk of emigrants and gave them credentials that opened lines of informal
communication closed to even the more celebrated of the older intellectual exiles. Yet, each in his
own way, they remained tied as well to the formative experience of their generation, to the mission
they had thought themselves called upon to fulfill in the Weimar years, and to their former
associates. To think about such exile as a matter of displacement alone neglects the need to remain
somehow present in the former place, whether by intervention from afar or simply by detailed
knowledge and evaluation of events. Beyond that, they could never become indifferent to their
common project, the social constitution of labor as integral to the democratic polity, or to the shared
mentor, Hugo Sinzheimer, who had initiated them in that work. They were not among the helpless
victims of the Nazis but defeated political advocates of the Weimar Republic, exiled after active
defense of arrangements that they had actively helped to shape.
The critical question, of course, is what happened in exile to the conception of labor law as
paradigm of a disruptive and transitional structure, constituting an autonomous social sphere and
serving to hem in at least some of the powers of property, as well as providing a strategic framework
for cumulative measures to enhance the benefits and powers of labor. For Kahn-Freund, during most
of his years in England this part of the legacy appeared more securely realizable there than in
Germany. The resourcefulness of common law in creating diverse negotiation relations and the
passivity of the state opened the way to evolutionary legal processes without the dramatic anomalies
15
Franz L. Neumann, The Rule of Law. Political Theory and the Legal System in Modern Society (Heidelberg: Berg, [1935] 1986).
This is a posthumous publication of the dissertation under an altered name. Neumann’s own efforts to gain financial support for a revision of the
work during the late 1930s were unsuccessful. See Neuman’s 1939 Research Proposal on “Rule of Law,” MHA IX 59/2. Harold Laski urged
publication in the original form, but Neumann wanted changes. Cp. Neumann’s own reformulation of his main thesis, published in 1937 in the
Zeitschrift für Sozialforschung in New York: “Der Funktionswandel des Gesetzes im Recht der bürgerlichen Gesellschaft” (issue and page
numbers?). This work was the product of extended substantive negotiations with Max Horkheimer, and the English translation is a shortened
version, as acknowledged in Herbert Marcuse, The Democratic and the Authoritarian State (Glencoe: The Free Press, 1957) 22, but not in
William E. Scheuerman, The Rule of Law under Siege (Berkeley: U of California P, 1996) 101.
13
and impasses that made the primary parties of German labor law so dependent on the state. KahnFreund, said one of his admiring commentators, “fell in love with British industrial relations.”16
Abruptly, however, he fell out of love, years later, when he served on a commission that heard
endless testimony about the responsibility of industrial relations for Britain’s economic decline.
Near the end of his life he clamored for state intervention to limit union power. I am struck by the
commentator’s vivid language of falling in love and out again, and I think—for all of Kahn-Freund’s
stupendous knowledge and brilliant judgment—that the pattern reflects the continuity of the
“Weimar and Labor” construction.
Neumann dealt differently with the Sinzheimer legacy on law. Since his second degree was
in political theory, not law, he never worked again in labor law. The legal consulting he did for the
Institute of Social Research related to quite different matters and was onerous to him, made bearable
only by the affiliation it brought about. Labor law figured in his political analyses of Nazi rule and
in his projection of post-war Germany, as well as, quite unclearly, his reading of America. To
dispose of the last point first, Neumann proposed a study of “European Labor Law” in his first years
at the Institute with the aim of using the comparison to elucidate and inform the American law. The
proposal, however, is clearly designed to attract sponsorship for the research, so it is unclear how far
this prospectus reflected his actual preoccupations. Still, it is interesting that he would have thought
that this would be found attractive. Later in his relations with Max Horkheimer and the Institute, he
was frequently subjected to criticism for his incessant attention to labor issues—and for his
favorable judgment, despite everything, of the Weimar labor regime. Successive versions of a
proposal to study labor in Germany show the effects of the criticisms. Three drafts recognize the
achievements of the labor law, notwithstanding its dubious ideological underpinnings and uncertain
16
Lord Wedderburn in Labour Law and Industrial Relations: Building on Kahn-Freund, ed. K. W. Wedderburn, Roy Lewis, and Jon
Clark (Oxford: Oxford University Press, date?).
14
social foundation, and the fourth abruptly recontextualizes the realm of reformist labor (and its law)
among the factors conditioning the German masses for Fascism.17
Neumann’s more developed discussion of Weimar Labor Law (caps?) was in the context of
comparisons with Nazi regulations, and he was ambiguous about the Sinzheimer perspective. On
one side, it seemed to be included in the “institutionalist” vision which the labor movement shared
and which was easily appropriated by the proto-fascist and Nazi currents.18 At issue was the critique
of individualist renderings of employment relations and the recognition of the needs of functional
institutions as sources of law. Sociological jurisprudence was seen as implicitly institutionalist. On
the other hand, however, Neumann recognized that Sinzheimer and his group in fact insisted on
positivist individualist renderings of contractual relations as far as they could go, specifically in the
matter of mutual obligations, leaving the sociological dimension to serve as wider context and
completion. In exile this emphasis on the minimal ethical function of individualist law became a
main theme, notwithstanding his wish to expose this law simultaneously as an ideology that
obscures power relations. The whole argument is carried, I submit, by the “Weimar and Labor”
configuration as prime reference point. The projection for post-war Germany all but reinstated
Weimar labor law, excluding only the provisions that tied labor to state administrative agencies for
arbitration.19 For Neumann as for Sinzheimer, however, the legal order remained a prime dimension
of the constitutional and political design with bases, however, in social relations.
Neumann’s portrayal of the “Weimar and labor” complex was essentially consistent and
effectively continuous with the Sinzheimer group’s diagnosis of the labor law crisis after 1930. The
17
See Institute of Social Research report “Research Project of Dr. Franz L. Neumann. The Theory and Practice of European Labor
Law.” February/March 1939. MHA IX 59/2. See also Carnegie Foundation Archives CCNY: Franz Neumann 261.7, for correspondence about
project, February 1940–January 1941. In February 1941, then, Neumann prepared a series of drafts for a study of “Labor Movements,”
culminating in a study with the thesis that the labor movement prepared the masses for National Socialism. MHA IX 170.13f, 13a, 10b.
18
Neumann, “Change in Function” [1937], where? 1957: 590; Franz L. Neumann, Behemoth, 2nd revised ed. (New York: Oxford,
1944) 419–22, 440–58.
19
[F.L. Neumann], Civil Affairs Handbook. Germany. Section 9: Labor Army Services Manual M356-9 (Civil Affairs). Headquarters,
Army Service Forces (1944).
15
social constitution comprising collective bargaining, self-administered health and social insurance,
works committees, labor courts, and the other achievements of Weimar was a function of a complex
of bargains between conflicting social forces and operated as long as these forces were at least
approximately in balance. There is no question that they enhanced the dignity of labor because they
limited the powers pertaining to property in several important dimensions. With the progress of
monopolization and rationalization in the economy, however, the conditions making for parity
eroded, and the labor movement became ever more dependent on the support of governmental
agencies with their own ideological and practical reasons for accommodating labor, with the result
that they became organizationally adapted to these ties and estranged from their members. When the
reactionary alliance took full control of the governmental agencies, the labor movement had lost the
will and ability to put their full effort into the political struggle. When the call to action—general
strike and civil war—was required, they thought only of saving their organization. They first
pleaded in vain for a neutral state and then tried to win toleration from a dictatorial regime engaged
to destroy them.
The rage and intensity—and ultimate unfairness—of Neumann’s self-reproach in the last
year of his life testifies to his inability to settle this business:
How often have I asked myself since 1933 where my own responsibility for National
Socialism lies. Because I do believe in collective guilt—and then I cannot exempt
myself. All of us in the opposition to reaction were too cowardly. We all made
compromises. How lying the SPD was in the months between July, 1932 and May,
1933 (and not only then), I could see with my own eyes—but I said nothing. How
cowardly the union bosses were—and I continued to serve them. How lying the
intellectuals were—and I remained silent. Naturally I can rationally justify this by the
16
united front against National Socialism, but ultimately the fear of isolation played a
part. And yet I had great models: Karl Kraus, Kurt Tucholsky. And in my theory I
have always agreed with the Socratic standpoint that the genuine intellectual must
always and in the face of every political system be a metic (a word I don’t know), an
alien. So I also played a part in the sell-out of the ideas of the so-called German Left.
No doubt, my contribution is small, and the politician will view my attitude with
irony. But is it possible to view the fall of the SPD and the rise of the National
Socialists as only a political problem? Were there no moral decisions to be made? I
made those too late and still not radical enough.20
The self-conception of this life-long deal-maker as a classic outsider—more Diogenes than
Socrates—is fantastical. No less striking is that he offers this exposé to a young German woman
whom he had first gotten to know when he mentored her study of the “German academic
emigration,” and with whom he had planned to spend the rest of his life, probably in Germany.
Implicitly at least, this newly emphasized rupture with the past of “Weimar and Labor” also entailed
a breach with his American years of conducting complex negotiations with institutions of the public
and private establishment, a pattern he escaped least of all during his years with the Institute for
Social Research, notwithstanding its institutionalization of the “Socratic standpoint” to which he
makes reference.
Franz Neumann’s time in forced emigration was spent in three distinct settings: the London
School of Economics and the network of social-democratic exile groups in London, the Institute of
Social Research affiliated with Columbia University in New York City, and a sequence of
20
Franz L. Neumann to Helge Pross, Summer 1954. Jürgen Seifert, “Einführung,” Perels 9; author’s translation. Tucholsky committed suicide
soon after his emigration, and Karl Kraus’ posthumous Walpurgisnacht fulminated against the Socialists and intellectuals with whom Neumann
identified himself.
17
governmental analysis and planning agencies in Washington. There is a certain plausibility in the
efforts to correlate these sites with three distinct phases of his thought, although the fact that he was
everywhere dependent on patrons and employers with strong, special tastes in terms of the discourse
they expected counsels caution. I do not mean dependence only in the sense of economic need, but
also in the sense in which the opportunity to speak consequentially depended, as it does for a lawyer,
on having a client to represent and a forum in which to be heard. Neumann was not an opportunist
but a realistic bargainer, and he was obviously not for hire to a “client” whose designs did not
contribute to the realization of his own political projects. If he spoke the languages of three rather
different theories at various times, it is important to recall his strategic and “functional” conception
of theory—closer to the lawyer’s use of the term than to that of the philosopher, given that he
retained, first to last, an absolute fascination with theories taken as configured accounts—or
rationalizations—of diverse political circumstances, to be judged, ad hoc, as adequate to reality or
an ideological distortion. On the relation between theory and practice, then, Neumann aspired to
have political theory work as legal theory worked in the context of labor law as a strategic resource.
As in the case of Neumann, a remarkable personal letter, only recently published, illuminates
the deep contradictions of Ernst Fraenkel’s exile life. In March of 1946, Fraenkel wrote a report of
the exile years to Otto Suhr, a labor intellectual who had narrowly escaped death for his support of
(the?) resistance (cap.?) and a friend from the years before Fraenkel’s departure in 1938. The prime
theme is his own relationship to Germany, and the thesis is final and irrevocable rupture:
The decisive turning set in for me in 1943 [...]. It was at that time that we first
heard about the gas chambers in Auschwitz [...]. As it became clear that these were
not propaganda reports but facts, I deliberately and in full awareness of the
significance of the step cut the cord between myself and Germany and determined
18
never to return to Germany. It would be completely impossible for me to retrieve the
impartiality necessary to live and to function in that land. In the relationship between
Germans and Jews, now that 5,000,000 Jews have been murdered, I feel solidarity
with the Jews—and only with them. I do not believe that it can be expected of any
Jew that he will ever in future live in Germany [...]. I was in Germany long enough to
know that a considerable proportion of the German population endorsed Hitler’s
measures against the Jews. After this campaign has led to massacre, it is not
permissible for me as a Jew ever again to make the cause of this people my own. That
may sound bitter. I feel very bitter on this question. I believe that this wound can
never be healed.21
Five years later, thanks largely to Franz Neumann, Fraenkel was working for Otto Suhr at
the Hochschule für Politik in Berlin under contract first to the U.S. State Department and later to the
Military Government. Even after he gained a regular university appointment, Fraenkel struggled for
years to reconcile his German residence and employment with a retention of his American
citizenship, but his only year back in the United States, a visiting professorship in California, was so
disappointing that he was happy to cut it short in order to return to Berlin in response to the crisis of
the Wall. In the end, for technical reasons having to do with his pension, he quietly resumed German
citizenship. In the autobiographical notes that prefaced several of his publications, he always
identified himself as a Jew, but he never spoke of his years in Hitler’s Germany as he did in his 1946
letter, or re-addressed the massacre.
This is a story of both general ambivalence and the exigencies of an exile’s professional
livelihood, but there are two additional dimensions. First, there is the bond whose persistence
21
Ernst Fraenkel to Familie Suhr, March 23, 1946. Ernst Fraenkel, Neuaufbau der Demokratie in Deutschland und Korea.
Gesammelte Schriften vol. 3 , ed. Gerhard Göhler (Baden-Baden: Nomos, 1999) 389–95; author’s translation.
19
appears even in the letter in which Fraenkel speaks of cutting his ties: “Rarely a day goes by,”
Fraenkel writes, “that one of my colleagues or friends fails to ask me how that could have happened
in Germany [...]. And when I think of the thousands of [trade union] functionaries that I came to
know in the course of almost twenty years, this problem appears as insoluble to me as on the first
day.” As with Neumann, the German puzzle continued to crystalize around the labor movement.
Second, however, this theme had gained an emphasis that was markedly missing from both their
writings in the Weimar years and that never assumed the unambiguous priority for Neumann that it
possessed for Fraenkel: anti-communism (caps.?). Fraenkel had taken a strong stand against the
Communists during his years as occasional contributor to the socialist (caps.?) exile press in
America, and his post as postwar governmental advisor in Korea ended with the forced evacuation
of Seoul at the onset of the Korean War. Fraenkel came to Berlin, among other things, as an
unembarrassed medium of the American campaign against Communism, and his objectives, clearly
stated in the reports to American authorities entailed by his contractual status as consultant for
political science between 1951 and 1953, prominently included his efforts to rouse labor
organizations against the East.
Fraenkel’s contributions to German political science went far beyond his efforts to rectify the
miscarriage of “Weimar and Labor,” but the motif keeps recurring. If his primary project came to be
the “transposition” of the dominant American cultural-political theme as understood by Tocqueville
into a melody that would move Germans—as Alfons Soellner, building on Hubertus Buchstein, has
recently shown22—he assigned special importance, first, to the surely contestable claim that
American political culture since the New Deal consensually comprehended the American polity as a
“sozialer Rechtsstaat,” using the concept originally developed by Hermann Heller to comprehend
22
Alfons Söllner, “Ernst Fraenkel und die Verwestlichung der politischen Kultur in der Bundesrepublik,” Jahrestagung der Deutschen
Gesellschaft für Amerikastudien, Pfalz-Akademie Lamprecht, 17.11.2001
20
one set of aspirations for Weimar and later appropriated by Carlo Schmid and others for the Bonn
design; and, second, to the contention that German trade unions in their practice prefigured the
twentieth-century American recognition of interest-group pluralism as a prime element of
democracy.
His first and his last major publications after his return to Germany dramatize the
continuities. In the fall of 1951, Fraenkel was invited to lecture in Cologne by Hans Carl Nipperdey,
a professor of law who had represented the liberal pole among Weimar labor lawyers and whose
academic standing had survived his accommodation with the Nazi regime. Fraenkel insisted on
using labor law as the theme of his lecture on the American system of judicial review. Among the
enthusiastic members of the audience was the Chief Judge of the newly created German
Constitutional Court, who circulated copies to all of his justices and occasioned its publication.
Nipperdey himself shortly became Chief Judge of the reformed highest Labor Appeals Court.
Fraenkel’s thesis, developed through a remarkable survey of the constitutional history of regulatory
issues relating to labor, was the success of judges following the lead of Holmes and Brandeis in
transforming the effective American constitution from a charter of laissez-faire to the constitution of
a “sozialer Rechtsstaat” (a concept for which, in a text sensitive to problems of untranslatability, he
could of course find no American equivalent). The labor issue, he concluded, was the most
illuminating theme for an understanding of American constitutional jurisdiction.23 In an opaque but
not idle remark, Fraenkel wrote Nipperdey that during his law studies in the United States he had
often fervently wished that he had known enough to speak about this history before 1933 at one of
the many congresses on labor law that they had both attended—an indirect allusion perhaps, to the
23
Ernst Fraenkel, “Das richterliche Prüfungsrecht in den Vereinigten Staaten von Amerika. Eine Untersuchung unter besondere
Berücksichtigung des Arbeitsrechts” [1953], Amerikastudien. Gesammelte Schriften vol. 4, Ernst Fraenkel, ed. Hubertus Buchstein and Rainer
Kühn (Baden-Baden: Nomos, 2000) 49–141. Correspondence with Nipperdey is in Ernst Fraenkel Nachlass, Bundesarchiv Koblenz: Error!
Main Document Only. N1274/5 (26.11.51 and 11,12.51). Nipperdey persuaded Fraenkel to expand the title of his talk from mention of labor law
alone.
21
Weimar conflict about judicial review where Fraenkel and Neumann had opposed Nipperdey. While
the knowledge derived from his exile experience was clearly being offered as a lesson to the Federal
Republic, the America of that exile was read, in turn, through the experiences that had eventuated in
exile. The United States, so understood, offered a solution to Weimar’s problems and thus to those
of Bonn.
In 1971, then, Fraenkel enlisted a reading of the Sinzheimer legacy in support of his
categorical hostility to the movements of the New Left. At issue was the “council mythology”
grounded in the lost cause of the German Revolution of 1918/19, which he took to be the central
theme of the new radicalism. Fraenkel portrayed Sinzheimer as the man who rescued the authentic
reform movement of German labor from the wild and self-defeating gestures of the council
movement, imbued with delusions about the Russian soviets (cap.?) and misled by a “pariah”
adventurer and preacher, Emil Däumrig. According to Fraenkel, the political changes of November
9, 1918, were essentially irrelevant to the cause of social reform practically identified with Social
Democracy (as distinct from its confusing ideology). The decisive steps forward in political and
social reform had been agreed upon before the end of the war; and they were ratified by the SinnesLegien agreement on a permanent joint working group of November 15.
The threat to that multi-dimensional settlement was not the political excitement of the last
winter days of 1918/19 but the workers’ council movement bred up by disorientation and agitation,
demanding a dictatorial regime of workers’ power. Sinzheimer was able to unite the trade unions
and Social Democratic Party behind a conception that extracted a reasonable kernel out of the
council excitement, transmuting the idea into an element within a “social” constitution consisting of
trade-union responsibility, labor/management parity, and a regime of negotiations alongside the
ultimately sovereign democratic parliamentary order. This conception was then embodied in the
22
Weimar Constitution (Article 165). Fraenkel went so far as to suggest that the eventual failure of the
design was due not least to the fact that the Social Democrats and their trade unions withdrew from
the settlement because of a resurgence of Marxist ideology.24 Writing to his closest friend, Otto
Kahn-Freund, whom he knew to be simultaneously completing an extensive interpretation of
Sinzheimer for a collection of his writings, Fraenkel admitted that he had exaggerated the black-andwhite confrontation between Däumrig and Sinzheimer, but he urged Kahn-Freund nevertheless to
follow his lead in contextualizing Sinzheimer’s articles quite narrowly in the confrontation with the
Spartacists and recognizing him as the theorist of the Stinnes-Legien working group.25
It is fair to ask whether and how this interpretation, laid down twenty years after Fraenkel
returned to Germany and clearly occasioned by his bitter hostility to the radical student youth,
relates to Fraenkel’s exile. Rubinstein offers an interesting suggestion. Speaking of reformers in
exile, she says that they are unlike the upholders of the pre-revolutionary order, whom exile leaves
fixated on an obsolete past, but their thinking is nevertheless held captive by an image of the future
that has itself become obsolete. I think that this applies to all three and that it accounts for the
varying measures of disorientation and disappointment towards the ends of their working lives.
Kahn-Freund clearly did not accept Fraenkel’s counsel. Throughout their correspondence,
much richer in personal warmth and intellectual exchange than the contemporary letters between
Fraenkel and Neumann, Kahn-Freund questioned Fraenkel’s abandonment of egalitarian
objectives.26 The Sinzheimer that he portrays in his 1971 introduction to a volume of Sinzheimer’s
writings published in Germany is, first, a brilliant innovator in legal theory, and, second, an anticapitalist campaigner for labor and social reform.27 As with Fraenkel, Sinzheimer is both an honored
ancestor and a contemporary guide, but the terrain more nearly resembles that which Sinzheimer
24
25
Ernst Fraenkel, Reformismus und Pluralismus (Hamburg: Hoffmann und Campe, 1973).
Ernst Fraenkel to Kahn-Freund, March 16, 1971 and April 10, 1971. BAK: N1274/56.
23
originally mapped before 1914 and compromised in Weimar, especially in the matter of labor
autonomy. For Kahn-Freund, this was not only compatible with the strategic vision of the British
Labor Left but an essential complement. When Kahn-Freund “falls out of love,” he abruptly recasts
the democratic state as the representative of “the consumer” and recommends regulative measures to
render labor unable to interfere with efficiency and growth. His admirers in the small party of
British labor law theorists, who had never shared all of his Weimar-bred enthusiasms, are
nevertheless perplexed by the radical character of this shift, given that there is no reason to question
his continued intellectual vigor and acuity. I suggest that it corresponds to an abrupt extinguishing of
the image of an obsolete future that carried his exile work.
Hubertus Buchstein has argued recently that Franz L. Neumann and Ernst Fraenkel were
united in a common project, together with Otto Suhr, to ground German democracy on social
pluralism. His knowledge of the texts is without peer, so there can be no question about the
pattern he identifies. Nevertheless, I submit that a reading of the record as documents of their
respective settlement of exile accounts will show the uncertain, concessionary, and provisional
character of Neumann’s agreement. There are two key differences between Neumann and
Fraenkel. First, Neumann preferred wholistic stategic models. This is evident in the contrast
between their central theses about the Nazi regime. The titles of the two books tell the story.
Neumann wrote Behemoth, pitting the Hobbesian image of civil war against a vision of
Leviathan as rational state. Fraenkel wrote The Dual State, playing a legalistic dimension of the
Nazi state against the arbitrariness of party rule. In the literature, this difference is often
harmonized by the contention that the books refer to different phases of Nazi rule; but this is
hardly compatible either with Neumann’s characterization of the situation, where the legalistic
26
27
Otto Kahn-Freund to Ernst Fraenkel, November 2, 1954. BAK: N1274/13.
Otto Kahn-Freund, “Hugo Sinzheimer 1875–1945” (1976), Labor Law and Politics 73–107.
24
dimension appears fundamentally deformed before the Nazis ever arrive on the scene, or with
Fraenkel’s subsequent application of the “dual state” concept to totalitarian states in general.
Fraenkel obviously did not claim an equal division of power between the two spheres, but he did
not treat the weaker as illusory. Neumann’s vision of liberal democratic states was
correspondingly centered on the sovereign parliament, with social “pluralism” as code for the
independent and organized social base required by the social democratic party (caps.?) for its
electoral bid for power. Fraenkel’s analysis has a unitary component as well, but it is cultural
rather than constitutional. Neumann’s despairing assessment of the future of German labor,
written in 1952, is not something that Fraenkel could have written. In effect, it is Neumann’s
farewell to political theory in the sense in which he had practiced it. The question whether he
could put anything in its place was rendered moot by his sad accidental death. Fraenkel’s hopes
were destroyed by the rise of the student Left and the consequent revelation that the “integral”
German political life that Fraenkel had projected was largely an illusion. This was manifested
less by the fact that the radicals assaulted pluralism as ideology than by the admissions and
concessions made elsewhere in the political system. Fraenkel’s attempt to emulate his
reconstructed Sinzheimer by mobilizing a grand combination against the disrupters was simply
not understood. Bonn was not Weimar.