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“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). 6 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.