THE RULE OF LAW IN CORPORATE SOCIETY: NEUMANN, KIRCHHEIMER AND THE LESSONS OF WEIMAR
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01746.x |
| Published date | 01 January 1988 |
| Date | 01 January 1988 |
REVIEW ARTICLE
THE
RULE OF LAW IN CORPORATE SOCIETY: NEUMANN,
KIRCHHEIMER AND
THE
LESSONS
OF
WEIMAR
THE
RULE
OF
LAW: POLITICAL
THEORY
AND
THE
LEGAL SYSTEM
IN
MODERN SOCIETY. By
FRANZ
L. NEUMANN. [Leamington Spa:
Berg, 1986. xxvi
+
349 pp. Hardback:
E2500.1
SOCIAL DEMOCRACY
AND
THE
RULE
OF
LAW. By
Om0
KIRCHHEIMER
and
FRANZ
NEUMANN. Edited by Keith Tribe. Translated by
Leena Tanner and Keith Tribe. [London: Allen and Unwin,
1987.
ix
+
222
pp. Hardback:
225.00.1
1.
The Legal Invisibility
of
Change
A century after Dicey’s discussion of the rule of law in the
Law
of
the Constitution
was first published there is less agreement than
ever about the meaning and significance of the idea. The rule of
law has been described as a “concept of the utmost importance but
having no defined, nor readily definable, content”’; as “a mixture
of implied promise and convenient vagueness”.2 Recently renewed
attempts to reformulate it precisely have excluded from the concept
a wide variety of political value judgments and reduced it, in the
manner of the continental formal
Rechtsstaat,
to a specifically
technical, or procedural insistence on government through fixed,
previously announced rules. These are to be “general, open and
table",^
interpreted by an independent judiciary, prospective in
effect, and, in Raz’s formulation, “capable of guiding behaviour,
however ineffi~iently”.~ One suspects that if Franz Neumann,.
whose magisterial, newly published, mid-1930s study of the rule of
law details the political and social origins of all of these elements,
were still alive he would be surprised at only one aspect of present
debates: the extent to which formulations such as the above can
still avoid detailed analysis of the fundamental changes in the
functions and effects of regulation which he saw as brought about
by the development from competitive to monopoly capitalism in
Western societies. The publication of Neumann’s long-neglected
study, together with a volume containing new translations of some
of the essays he wrote at around the same time, is important
D.
M.
Walker,
Oxford
Companion
to
Law
(1980), p.1093.
Cf.
A.
V.
Dicey,
Introduction to the Study of the
Law
of
the
Constitution
(10th ed. 1959), p.187: “Words
which, though they possess a real significance, are nevertheless to most persons who
employ them full
of
vagueness and ambiguity.”
0.
Kirchheimer, “The
Rechtsstaat
as Ma ic Wall” in
F.
S.
Burin and
K.
L.
Shell,
eds.,
Politics,
Law
and
Social Change: SelectejEssays
of
Otro Kirchheimer
(1969), p.429.
Ibid.,
p.226.
’
J.
Raz,
The Authority
of
Law:
Essays
on
Law
and Morality
(1979), p.213.
126
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