José Rodrigo Rodriguez

Letter to Franz Neumann (1)

In Direito e Teoria Critica on 15/06/2012 at 14:50

São Paulo, June 04, 2012.

Dear Franz Neumann,

I have recently translated an excerpt of a letter you wrote to your friend Helge Pross in 1954. By the way, the year of your death. I found it cited in the small book that Alfons Söllner wrote about you, published in 1982. The book was a gift from my PhD supervisor, Marcos Nobre, a souvenir from a study trip he made toFrankfurtin 2001, if I remember correctly, by which time I began to read your texts on a regular basis.

“Why do I love this country so much and yet also despise it? Perhaps it is a deep-seated guilt feeling. How often after 1933 have I pondered the question of what my responsibility for National Socialism really was? For I believe in collective guilt. But then I cannot exclude myself from it … We who opposed the reaction, we were all cowards. We all made commitments. I saw with my own eyes how the Social Democratic Party was a liar from July 1932 to May 1933 (not just after that) and I said nothing. Union leaders were so coward bosses — and I continued to serve them. The intellectuals were so liars — and I remained silent. By all means, I can rationally justify my attitude along with the United Front against National Socialism, but ultimately the fear of isolation played a part … Therefore, I also played a part in the sell-out of the ideas of the so-called German left wing. My contribution is certainly small and the politicians would view my position with irony. But one can view the decline of the Social Democratic Party and the rise of National Socialism as a mere political problem? Weren’t there any moral decisions to be made? I made them too late, yet I had not been radical enough.” Letter of Franz L. Neumann to Helge Pross, 1954.

Reading this letter has always touched me. The moral judgment you make of yourself sounds too hard for someone like me, who has read almost everything you wrote against the regime of Adolf Hitler and against some of his leading supporters, such as Carl Schmitt. And someone that knows you were Jewish. I am deeply sorry that you died so distressed and upset by your supposed lack of radicalism. But I do understand what a democrat and socialist jurist like you may have felt amidst the Nazi barbarism that followed Hitler’s rise to power. The cowardice of the left wind, trade unionists and intellectuals, who, in your letter, knew exactly what would happen toGermanyfrom then on, was also your cowardice, at least from your point of view. After all, you stood beside them, which caused your deportation as early as in 1933, that is, the time of a career, a life, a lifetime.

Perhaps this is the problem of political men like you who act on behalf of their associations and groups for fear of isolation, fear of failing to conduct politics the right way, as you suggest in your letter. It is easy to see that you’ve never been an exclusively theoretical thinker who spent your time walking through the woods of Berlin, reflecting on the Being to give meaning to the world and humanity. Your life, by the end of your days, was filled with constant clashes in the intellectual, political and bureaucratic field, either as a member of the socialist youth, a labor lawyer, university professor, member of the Institute for Social Research, U.S. official (at the office of strategic affairs, serving the committee of information on Germany) or during the Nuremberg Tribunal.

No wonder that someone with your profile, especially in a time of crisis, highly unstable and uncertain as in the fall of the Weimar Republic, stayed in line with your leaders who — and this is the problem —, ultimately made fatal mistakes for the history of humanity. In your writings, you were not like this, and this is crystal clear. Your position is anything but condescending. But even with regard to the political choices that you made in that context, taking into account the situation that you have lived, I am sure, especially considering your lone voice in the broader political debate, nothing you could have done would be too radical and nothing you could have said would be radical enough. I believe that anyone would hardly feel self-pleased in that situation. The main distress at that moment, I imagine, was to be a German citizen and be part of the European civilization.

Anyway, I cannot engage in any discussions of the judgment that you made about yourself. And that’s what it is, your deepest consciousness casting a severe judgment on yourself. Apparently, you did not die in peace, aged 54, in that unfortunate car accident in Switzerland. But did any of your companions have better luck? Could they forgive themselves for what they did or failed to do? What will my luck be before a world in crisis and without clear prospects for emancipation? What are the right choices to make?

Anyway, what I have left is the attempt to understand what should have been your state of mind in that year of 1954, considering everything you wrote and in view of your conceptual constructions and research assumptions. Making this move is very important to me. It is important for me to feel able to think of my position as a jurist and socialist theoretician in my country, Brazil, as late as in the 21st century, amidst an outbreak of optimism and development, marked by a promise of economic and political leadership on the rest of the world. Many of your ideas seem extremely useful to reflect on the current times and on the problems we have been facing. Since I gained acquaintance with your work, I have sought to drawn on your ideas to write my books and articles.

Yet, if the problems I have before me have little resemblance to the National Socialist regime, the subject of almost all your writings, the historical distance of 50 years between your death and my book on your work — “Fuga do Direito”, 2009 — has contributed to dulling the vision of the left wing over the world today and over the period you lived. After all, we live in a time when leftist theorists as relevant as Giorgio Agamben compare the pictures on identity cards to the period of the National Socialist regime; for the dismay of unsuspecting readers. Surprisingly enough, we live in a time in which Carl Schmitt is seen as a useful and necessary author to reflect on the left-wing politics.

Faced with such positions — on which I intend to write letters in future —, which are quite away from your effort to reconstruct in detail the economic policy, the legal framework and the bureaucratic structures of the German “rule of non-law” — which you named Behemoth — it is tough to read your writings and ponder the world today without the risk of saying arrant nonsense. Your concepts and assumptions cannot be thought in isolation of the vast empirical material that you reviewed in your articles and books; your ideas cannot be thought over using abstract formulas worked out separately from social reality.

To refresh your ideas and reflect concernedly on today’s world, it is necessary to put together empirical materials similar to the ones you organized to test your assumptions with all the rigor and all due respect to your work. I tried this on my Ph.D. in order to discuss solely your criticism of the pessimistic assessment of the materialization of law made by Max Weber. I hope I have been successful in this attempt, while leaving aside the current trend of recurring to classic authors as if they were a box of quotations and, in your case, detached from the impressive empirical material you put together with a great deal of effort.

Without a doubt, one can say in favor of Agamben that after reading Minima Moralia, by Adorno, which unfortunately you have not had the opportunity to read, it is hard not to get paranoid before the most despicable manifestation of state power or instrumental action purely and simply, in any form. Adorno undertook such a close, detailed and thorough analysis of the degradation of human experience by virtue of the advancement of instrumental action on social life, that after painfully going through its intense pages, even a single photo on an ID card becomes daunting and threatening.

Faced with this uncomfortable feeling and the National Socialist history, which haunts us all, it seems better to be overly critical than not being critical at all. Those who venture to read Minima Moralia and Dialectics of Enlightenment (by Adorno and Max Horkheimer) will eventually find a Nazi behind every tree and an act of oppression in any attempt to organize social life. This has been my position in the past, until I came across your writings on law.

The problem with this way of viewing the world, understandable from an emotional point of view and in the context of the post-war, is the loss of critical judgment about the characteristics and limits of instrumental action, together with the loss of interest on the institutions of the rule of law. When Adorno wrote what he wrote, the atmosphere of pessimism haunted the intellectuals and the entireEurope; disbelief in politics and law was outright. After all, the bodies incinerated by the Third Reich were still warm and out of their graves. Amidst such a terror, it sounds natural that the vision of reason in general be filled with an Expressionist flavor. It seems reasonable that Adorno skew the figures of reason for critical purposes, i.e., in order to show the hints of inhumanity and violence in them; to show the extent to which the most innocent actions could lead us.

Yet, worthy of note is that Adorno did not speak of his subjects abstractly, detached from empirical reality. His writings were born of years of empirical research carried on by the Institute for Social Research, some of which were coordinated by himself both in Germany and in the United States of America. Nevertheless, his critique of instrumental reason, developed in close collaboration with Max Horkheimer, cannot derive the paradoxical result of despising forever any reasoning drawn in terms of means and ends. After all, human action must also work this way; societies need the instrumental action to coordinate actions.

For example, it seems unnecessary to say that we must organize a system for collecting and distributing water, food and energy to meet the diverse needs of different social actors. It is necessary to interact with other human beings to be able to accomplish several common objectives. How to perform these tasks without thinking about means and ends? How to deal with these needs without using the instrumental action?

Therefore, the subject of criticism cannot be instrumental rationality in itself. The task of Critical Theory – I guess you would agree with me — is to reflect on characteristics, roles and limits, conceived in each context and in each historical time. This way of seeing things for me was very clear in your analyses of the state and law and this very attitude began to fascinate me as I went further in the reading of your writings.

As your letter presents, your capacity to reflect coolly on the contradictions of law against almost all left-wing thoughts of that time (except for Karl Renner) is both amazing and tragic, even in 1936, the year when you finished writing the Law’s Empire and during the rise and peak of the National Socialism, when you publish Behemoth, 1942. Your criticism of bourgeois law has never overlooked its internal contradictions, has never failed to connect legal structures and social conflicts; has never surrendered to a simplistic and unilateral vision of formal institutions.

You have always kept clear the objective of considering the possibilities of emancipation in every historical moment, without reducing to a single line your analysis of your time and sparing no effort to put forward your ideas with one of the toughest empirical materials. Therefore, my dear Neumann, you never turned any author into a manual or bible, expressing trenchant criticisms of Karl Marx, Max Weber, Hans Kelsen and Carl Schmitt, among others. I hope to have opportunity to address these issues in other letters, but what I would really like to say, for your patience with me has been too much for today, is that one of my main goals in the beginning of my intellectual life is to emulate closely your attitude. I want to be able, like you, to keep cool head and clarity of thoughts (as much as possible) before the contradictory and complex reality of liberal law.

My papers and books have explored the contradictions of my institutional reality, even when I find myself taking an unorthodox and minority point of view of the left wing of my country. My attempt has been to avoid the error of radical extremes. Besides this, I wish to be luckier than you were in evaluating the politics of my time, especially if I have to face such an extreme and dramatic situation you lived. In this case, I do not intend to follow Agamben, running the risk of accusing all those clerks responsible for printing ID cards of being accomplices of oppression.

On the other hand, I do not intend to condone, not even in thoughts or for tactical reasons, any left-wing forces attempting to go over democracy and the rule of law on behalf of their projects, as good as they may seem. Because you taught us the result of this move, as well as the recent history of the West. We are aware of the outcome of the creation of a power without the control of law in a complex society like ours.

Marx was not aware of it; he did not know anything like National Socialism: your writings, my dear Neumann, make us realize, from the very beginning, the difficulties of thinking of a “dictatorship of the proletariat”. Because of that, I take upon myself the task of pondering law from Marx, but beyond his thoughts, without letting the socialist tradition subdue or subjugate me.

I take this opportunity, for now, to thank you for the many years of critical reflection on law that your writings have given me. In addition, I congratulate your unusual, cold and reflective way of being a socialist, unwilling to giving up the law and the protection it provides, yet a way so innovative and insubordinate to the thought of your time. About your love for the law (and about my love), there is much else to say. And there will always be.

From your worst student, through the ages.

As they say inBrazil,

a warm hug from

José Rodrigo Rodriguez

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