TY - JOUR

T1 - Neo-fascist legal theory on trial : an interpretation of Carl Schmitt's defence at Nuremberg from the perspective of Franz Neumann's critical theory of law

AU - Salter, Michael

PY - 1999/12

Y1 - 1999/12

N2 - This article addresses, from a Frankfurt School perspective on law identified with Franz Neumann and more recently Habermas, the attack upon the principles of war criminality formulated at the Nuremberg trials by the increasingly influential legal and political theory of Carl Schmitt. It also considers the contradictions within certain of the defence arguments that Schmitt himself resorted to when interrogated as a possible war crimes defendant at Nuremberg. The overall argument is that a distinctly internal, or “immanent”, form of critique is required of Schmitt's position, in which its is found wanting even on its own terms. In principle, the application of this dialectical mode of critique can allow a genuine debate to emerge between those seeking to continue both the Schmittian and critical theory traditions, whilst safeguarding the latter from the dangers of formulating polemical interventions that are, in effect, counterproductive to their own intentions.

AB - This article addresses, from a Frankfurt School perspective on law identified with Franz Neumann and more recently Habermas, the attack upon the principles of war criminality formulated at the Nuremberg trials by the increasingly influential legal and political theory of Carl Schmitt. It also considers the contradictions within certain of the defence arguments that Schmitt himself resorted to when interrogated as a possible war crimes defendant at Nuremberg. The overall argument is that a distinctly internal, or “immanent”, form of critique is required of Schmitt's position, in which its is found wanting even on its own terms. In principle, the application of this dialectical mode of critique can allow a genuine debate to emerge between those seeking to continue both the Schmittian and critical theory traditions, whilst safeguarding the latter from the dangers of formulating polemical interventions that are, in effect, counterproductive to their own intentions.

KW - Carl Schmitt - war crimes - Nuremberg principles - incitement to genocide - OSS - Franz Neumann - legal theory of the Frankfurt School - immanent modes of critique

U2 - 10.1023/A:1009688423581

DO - 10.1023/A:1009688423581

M3 - Journal article

VL - 5

SP - 161

EP - 193

JO - Res Publica

JF - Res Publica

SN - 1356-4765

IS - 2

ER -