THE SHIELD OF ACHILLES (151 page)

31
. Hans Kelsen,
General Theory of Law and State
, trans. Anders Wedberg (Russell & Russell, 1945), 115.

32.
Cf. M. A. Bedau, “Weak Emergence,” in
Philosophical Perspectives: Mind, Causation, and World
, vol. 11, ed. James Tomberlin (Blackwell, 1997), 375.

33
. Compare: “the world is everything that is the case.” Ludwig Wittgenstein,
Tractatus Logico-Philosophicus
, I.

34
. Hans Kelsen, “Centralization and Decentralization,” in
Authority and the Individual
(Harvard University Press, 1937), 239.

35
. Stephen Holmes,
The Anatomy of Illiberalism
(Harvard University Press, 1993), 37. Interestingly, the left quarterly
Telos
devoted its entire Summer 1987 issue to Schmitt, introducing its subject by saying “in the present situation of political stalemate, the left can only benefit by learning from Carl Schmitt.” P. Piccone and G. L. Ulmen, “Introduction to Carl Schmitt,” in “Special Issue on Carl Schmitt,”
Telos: A Quarterly of Critical Thought 72
(1987).

36
. M. Wiegandt, “The Alleged Unaccountability of the Academic: A Biographical Sketch of Carl Schmitt,”
Cardozo Law Review
16 (March 1995).

37
. In
Political Romanticism
, he attacked the Romantics whose attitudes “preclude[d] any firm position or commitment” and for whom God as a point of reference was replaced by “the genial ‘I.’” His next book,
Die Diktatur
, was also a product of the Munich period of Schmitt's life. This work included an interpretation of that provision of the Weimar Constitution—which permitted the president to assume dictatorial powers—that attracted attention owing to Schmitt's novel reading of Article 48 as both expansive in its allocation of power to suspend basic rights, but restricted in that the ultimate form of the State—the constitutional order referred to in Book I—could not be changed.

38
. Carl Schmitt,
Political Theology: Four Chapters on the Concept of Sovereignty
, trans. George Schwab (Cambridge, Mass.: MIT Press, 1985).

39
. Carl Schmitt,
The Crisis of Parliamentary Democracy
, trans. Ellen Kennedy (Cambridge, Mass.: MIT Press, 1985).

40
. Carl Schmitt,
The Concept of the Political
, trans. George Schwab (Rutgers University Press, 1976).

41
. A fifth idea is derived from this distinction: Schmitt's theory of
Grossraum
—a geographical region dominated by the general application of a particular friend/enemy distinction, affording rights to resist intervention in the area by other powers.

42
. Quoted in David Dysenhaus, “Hermann Heller and the Legitimacy of Legality,” 17, later published in
Oxford Journal of Legal Studies
vol. 16, 641 (1996), 22, n. 41.

43
. Dysenhaus, 2.

44
. As for modern-day critical legal theorists and for the Frankfurt School that was their progenitor and Schmitt's contemporary.

45
. Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(Oxford: Oxford University Press, 1982).

46
. Philip Bobbitt,
Constitutional Interpretation
(B. Blackwell, 1991).

47
. Schmitt,
The Concept of the Political
, 26.

48
. Ibid., 27.

49
. Stephen Holmes,
The Anatomy of Illiberalism
, 40.

50
. Quoted in Dysenhaus, 13.

51
. Dysenhaus, 14.

52
. In
Political Theology
, Schmitt had characterized the views of de Maistre and other counterrevolutionary philosophers as “decisionism” (
decisionem
).

53
. Schmitt,
Political Theology
, 30.

54
. This identification apparently ran in one direction only. Count Ciano reported that in early 1943 Mussolini said that that year would determine whether the Italians were a great people or a nation of waiters.

55
. See Rolf Wiggershaus,
The Frankfurt School: Its History, Theories, and Political Significance
, trans. Michael Robertson (Polity Press, 1994); Martin Jay,
The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923 – 1950
(Little, Brown, 1973); George Friedman,
The Political Philosophy of the Frankfurt School
(Ithaca, N.Y.: Cornell University Press, 1981). See also Laurent Stern, “On the Frankfurt School,”
History of European Ideas
4 (1983): 83

56
. György Lukács,
History and Class Consciousness
, trans. Rodney Livingstone (MIT Press, 1971), 1.

57
. Ibid., 85.

58
. Judith Marcus, “The Judaic Element in the Teachings of the Frankfurt School,”
1986 Yearbook of the Leo Baeck Institute
(Leo Baeck Institute, 1986), 339 – 353.

59
.
Social Democracy and the Rule of Law: Otto Kirchheimer and Franz Neumann
, ed. Keith Tribe, trans. Leena Tanner and Keith Tribe (Allen & Unwin, 1987).

60
. See lecture,
University of Kansas Law Review
42, Summer 1994, 770.

61
.
Cardozo Law Review
17, March 1996, 826.

62
. Neumann's arguments—that legal formalism can be used to combat oppression and to protect minorities—were very much an exception in the school.

63
. Kirchheimer was greatly influenced by Carl Schmitt. He adopted wholesale the latter's views on direct democracy and social homogeneity, as well as Schmitt's emphasis on the “emergency exception” and the crucial role of the definitive decision, of which, both Schmitt and Kirchheimer argued, a liberal democracy was incapable.

64
. Otto Kirchheimer, “The Socialist and Bolshevik Theory of the State,” in
Social Democracy and the Rule of Law
(Allen & Unwin, 1987), 14.

65
. William Scheuerman,
Between the Norm and the Exception
(MIT Press, 1994), 25.

66
. Kirchheimer, “The Socialist and Bolshevik Theory of the State,” 12 – 14.

67
. Ibid., 10 – 14.

68
. Otto Kirchheimer, “Weimar—And What Then?” in
Social Democracy and the Rule of Law
(Allen & Unwin, 1987), 44.

69
. Scheuerman, 31 – 32.

70
. Ibid., 26.

71
. Quoted in Otto Kirchheimer,
Political Justice: The Use of Legal Procedures for Political Ends
(Princeton University Press, 1961), 287, as part of a critique of state socialist law.

72
. Scheuerman, 36.

73
. Kirchheimer, “The Socialist and Bolshevik Theory of the State,” 18.

74
. Otto Kirchheimer, “Criminal Law in National Socialist Germany,” in
Studies in Philosophy and Social Science
8 (1939): 463.

75
. Otto Kirchheimer, “The Legal Order of National Socialism,” in
Studies in Philosophy and Social Science
9 (1941): 456 – 478.

76
. Ehrhard Bahr, “The Anti-Semitism Studies of the Frankfurt School: The Failure of Critical Theory,”
German Studies Review
1 (1978): 125.

1
. Kenneth A. Oye, “Explaining the End of the Cold War: Morphological Behavioral Adaptations to the Nuclear Peace?” in
International Relations Theory and the End of
the Cold War
, ed. Richard Ned Lebow and Thomas Risse-Kappen (New York: Columbia University Press, 1995). Kenneth A. Oye has concluded that the bipolar strategic world required such enormous infusions of resources that the Soviet economy was undermined. The burdens thus imposed by the international competition structured Gorbachev's reform agenda. See also Robert Gates,
From the Shadows: The Ultimate Insiders Story of Five Presidents and How They Won the Cold War
(New York: Simon & Schuster, 1996).

2
. Michael Doyle has argued that the domestic pressures for political reform persuaded the Soviet leadership to enter the international political economy in order to gain the fruits of the international market. See the final chapter, “The Future,” in Michael Doyle,
Ways of War and Peace
(New York: Norton, 1997). See also Thomas Risse-Kappen, “Did ‘Peace through Strength' End the Cold War? Lessons from INF,”
International Security
16 (1991): 162; and on a related note, Mancur Olson,
Power and Prosperity
(Basic Books, 2000), in which it is argued that democracy performs better economically than either communist or capitalist tyranny.

3
. Compare Paulette Kurzer, “International Relations Theory and the End of the Cold War,”
Political Science Quarterly
8 (1996): 166; and Thomas Risse-Kappen, “Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War,”
International Organizations
48 (1994): 185.

4
. See Part II, Book I.

5
. Gorbachev deployed glasnost and perestroika as a response to the delegitimization of Soviet communism and as an attempt to retain control through reform: “[Counter-reformation] is a self-critical show of strength with the aim of incorporating those values created against the will of [the established orthodoxy], and outside the social institutions in order to stop them [from] becoming antagonistic and subversive.” Adam Michnik, “The Great Counter-Reformer,”
Labor Focus and Eastern Europe
9 (July – October 1987): 23.

6
. Michnik.

7
. Coit Blaker, Hostage to Revolution:
Gorbachev and Soviet Security Policy, 1985 – 1991
(Council on Foreign Relations, 1993), 188.

8
. See Adam Michnik, “On Resistance,” in Adam Michnik,
Letters from Prison and Other Essays
, trans. Maya Liatynski (University of California Press, 1985), 41,43.

9
. In this regard it is quite interesting to recall the following statements by Gorbachev at a press conference held with Mrs. Thatcher: “… I will tell you about an interesting conversation which I had at Stanford when I met a group of professors… Professor Friedman, the economist… had a very interesting observation to make. He recalled that, after World War II, when the U.S. set out to help the Japanese… to master the forms of a market economy, a group of them, specialists, arrived in Japan. His first impression… was that the people were wholly unprepared for working in the conditions which they wanted to propose. They were all very unhurried people. They lacked energy and initiative. They were absolutely not the right kind of human material…. Subsequently he quickly changed his mind. You know how the Japanese work now, he said. I met leaseholders in the Kremlin recently and they are the very people who are working under conditions which are necessary for a market economy. I was struck by their openness, judgment, experience, and initiative. They had so many proposals. That discussion ended with them sitting around preparing a proposal for the president…. These are already different people.” Joint Press Conference, June 8, 1990, Moscow Television in FBIS-SOV, June 11, 1990. Gorbachev believed that he could make the Russian people into a disciplined and yet innovative workforce—as he thought the Americans had done with the Japanese—not, however, in order to support a parliamentary system but to advance socialism.