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March 21, 2005
Interesting. I did not know that some members of the Frankfurt School engaged in a critique of Carl Schmitt. But then I have not read the works of Franz Neumann and Otto Kirchheimer, the two legal theorists associated with the first generation of the Frankfurt School.
I do not know what the "social rule of law," means. Nor do I understand this passage:
"Scheuerman argues that Kirchheimer and Neumann have pointed the way beyond the abstract contradiction between social legislation and formal law posited by critics and defenders of the welfare state; he cites New Deal depression legislation in the U.S. as an example that the two need not be mutually exclusive."
What does that mean?
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Gary,
The "social rule of law" is the soziale Rechtsstaat. The Rechtsstaat is literally "the state under the rule of law" (or rule of law state, or constitutional or codified state, or some similar construct), so the soziale Rechtsstaat is whatever it is to make such a thing social, i.e. to embody the equal dignity of all human beings in the fundamental law. I rather fancy it's something like the welfare state, but that's almost certainly wrong, because the welfare state's not specifically a legal concept.
I'll punt on the other part of the question: without knowing which critics or defenders of the welfare state are in question, and not yet having read the work in question, and I must confess a certain insensitivity to the nuances of old German legal theory.