Otto Kirchheimer

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Otto KirchheimerAuthor(s): John H. HerzReviewed work(s):Source: Salmagundi, No. 10/11 (FALL 1969-WINTER 1970), pp. 303-306Published by: Skidmore College

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Otto Kirchheimer

BY JOHN H. HERZ

Otto Kirchheimer's ife s a "Germanrefugeentellectual"was per-haps ypical, utalsoparadoxicaln its mpact.He cametotheUnitedStates s oneof a group fsocialscientists howere all deeply teepedintheneo-Marxian radition ftheCentralEuropean twenties,ndwithwhom he shared theinsights nd theprejudices.He arrived ta timewhen Karl Marx, a bit belatedly,had likewise"arrived" n

America,nd so one

mighthave assumed that

his and his group'simpact pon theintellectualifeand evenon thepracticalpolitics ftheUnitedStateswouldhave beenconsiderable. n reality herewasnothingf the ort.The practical ffecthatMarxismmighthave hadwas dissipated n the sectarianquarrelsof the 'thirties,while inregard o theory heGermangroupat first ad to learn morefromitsAmerican xperience han it could contributeo it. What it didcontributet thattimewas understandingfwhathad happened nGermany. n thisrespect,Kirchhoimer rovedto be veryclose toFranzNeumann,who, in his Behemoth, rovided he first,nd still

outstandingnterpretationf the Germanversion ffascism.Kirch-heimerwrotesearching nalyses of the legal system nd of socialdevelopmentsnderNazism. He had previouslynalyzedtheWeimarsystemnd thestagesof itsdisintegration. t thattime, lready,hisgenius f understandinghe typically political,"the peculiarcon-stellation f social and politicalforces n its impacton system ndstructurefgovernment,ad beenclearly evealed.WithhisMarxismhehad combined he insights nd methods f his principalteacher,CarlSchmitt, ho,withhishabitofalwayspenetratingo theexcep-tional, xtreme,emergency"ituation,had frequentlyeen able to

extractmoreunderstandingf the normalas well as the abnormalthan heprofessionalissectorsfthe"typical" r"average"had been.

But in American ocial sciencethe trendwas away from he area







304JOHN

.HERZin which the German ntellectualsould maketheir ontribution.t

went n thedirectionfmaking ocial sciencemore scientific"n thequantifyingnd conceptualizingense. That a groupof Marxianswouldfind tself utside hestream f a conceptualizingocialsciencewas certainly aradoxical. The reason was that theirconceptsdidnotfit hoseof thenewAmerican scientists."Theywere too"socio-logical," derived as theywere fromtradition, romhistory, romphilosophy, hilethoseof the "modcrnizers" ereadaptedfrom n-gineering,mathematics,conomics, nd cybernetics. ence "alien-

ation"between hem nd therefugeecholars.With the advent of thewar came the practicalproblems f how

best toserve he taskofdefeating ascismnd rebuilding,r building,a democraticocietyn itsstead. The "CentralEuropeanSection"ofOSS, whereOttoKirchheimer orked ogether ithFranzNeumann,HerbertMarcuse,nd others, f all places turned ut to be theplacewhere the left-HegelianWeltgeistwas to find ts temporarybode.An interestingxample ftheconvergenceftheorynd practice, hisofficeerved s crucible orGermanpostwar evival s well as academeforan entire

generationf

youngerAmerican ocial scientists

ndhistorianswho thiswaywere saved frommilitaryervicefor ntellec-tuallymorefruitfulurpose. After he war Kirchheimer rovedtobe one of thosewhoseelfortsn the cause ofGermandemocratic e-construction ere tireless nd unceasing. t was not theirfaultthatin manyareas "restoration"that is, of pre-Nazi authoritarianism)rather han democratic r socialistreconstruction as the ultimateresult.

The greatest aradoxofKirchheimer'sareerwas that t began tobear itschief ntellectual ruits oward tsvery nd,that s, at a time

when"socialscientism"eemedvictoriousll overtheplace butwhenthose n theforefrontf ntellectualndeavor ame torealize tsshort-comings nd to acceptthevalue of theapproachand the insights fmen ike OttoKirchheimer.1n thelustdecade and a halfof his lifeKirchheimer ad concentrated n two topics, ach vast but clearlydefined,ach particularly ellsuitedtohis background,raining,ndanalyticalpower: thefieldof what he called, felicitously,politicaljustice,"and the area of politicalpartiesand their mpacton thepolitical ifeofEuropeanpostwar ociety.

His occupationwiththefirst ieldedhis one majorwork,Political

justice (Princeton,1961) (almost everythinglse he leftscatteredin periodical rticles nd the like,a vast agglomerationf writings

1Cf. following age.







OlioKirchheimer 305onlynow to be collectedand published n posthumous olumes).2Itconstitutesgreat ntellectualchievement. he peculiarEuropeanhabit ftraining olitical cientistswho onlyin thepostwarperiodemergeds a professional roupapart) in thelaw, whichfrequentlyaccountedorpovertyfresults nd formalismfapproach, n Kirch-heimer'sase meantthathe was able to subjectthelaw, that s, thenormativespectofgovernmentnd politics, o an encompassingnd

penetratingoliticalanalysis. It servedhimto subjectvast stretchesofthehistoryfman,themostvaried tructuresfpolitical nd legalsystemsf past and present, f constitutionalismnd democracy swell s ofauthoritarianismnd totalitarianismin both tsCommun-ist-Stalinistnd fascistversions),to questioningn regardto whathe defined s "political ustice": the uses and abuses of legal pro-cedure orpoliticalends. Politicalcrime,politicalcriminal, oliticaltrialherehave found their lassical treatment.

The secondmajorarea ofhis interest nd research, hatof partydevelopments,rovedto be particularly ewardingbecause it hap-pened o fall ntoan era offundamentalhange,a transformationfthe tructurend thefunctionsf

politicalpartieswhichKirchheimer,withhis almostuncanny ense forthe new and coming nd forthespecificallypolitical,'* orecast nd analyzedin its essentials t theearliest ointof thisdevelopment.He was thefirst o pointout thechangeof the ideological, lass- or religion-orientedartyof mass-integration,nd especiallythe leftist,workers-class-basedartyofôppositionfprinciple,"ntothe"catch-all""people's"party, typeofpartywhichmoreand moretendsto dominate hepolitical and-scapeofEurope. With"moderation"nd "deideologization"fpartiesthere oeshand in hand thedevelopmentf a political ystemwhere

theclassical"game of alternation" f governmentnd oppositionnthetraditional arliamentaryashiongivesway towhatKirchheimercalledthe"waningofopposition," hevanishing f therole-functionwhich opposition f principle" r any othermeaningful ppositionhadplayed n thegameofdemocratic olitics.Kirchheimeriscoveredandanalyzed hefirstmodelofthenewsystemn itsAustrian ersion,where governmenty party artel"had replacedthe alternation f

"It is strangethat he began to come into his own exactlyat a timewhen hisfriend nd collaborator,HerbertMarcusc, suddenly began to achieve fame notonlyas an author and scholar but,above all, as leader of the radical movementofyoungpeople all over the world.Justnow

Kirchheimer, oo, emergesposthu-mously s one of the intellectualbeacons of the neo-socialist eft, n particular nGermany.The reason, perhaps, lies in the indebtednessof the group of whichKirchheimerwas a memberto the young, "humanist," anti-alienationand anti-otabhshmentMarx, the Marx whose rediscoveryn the 'Twenties had been oneofthe asting mpressions hatgrouphad undergone.







306 JOHN It. HERZ

rulers nd opposition.He did not ive tosec, althoughhe wouldnothave beensurprisedy, heapplication fthqmodel oWestGermanyunderthe "grandcoalition" of the two majorpolitical groups.Hcdid foresee heconsequencesf he newpolitics,uchas theemergenceof "extraparliamcntarypposition," cpolitization,nornie, onform·ism,but his criticism as by implication ather hanby expressJc·

ploration.There are situationswhich, s thesayinggoes,arc "more

easilydeploredthan described."Kirchhcimcrescribed.Here he was, as usual,at the frontiersfknowledge,making thi*

business, s he once had put it,"to uncover he basic mechanisms"*·politicalorderand disorder,"makinguse of Marxism,no longerbuild a utopia of things o come but still as "the best method ·

analyzingreality." "Oppositionof principle" nd "catch-allparty,"gameof alternation"nd "waningofopposition," political usticeand "judicial space" (the latter termhe coined forthatrealm

judicialdiscretioneft o the udge in certainRechtsstaatystems)êxpressionsike these not only testify o Kirchheimer's elicityr

coining fittingermsbut to a powerof conceptualizationnfinite!}morefruitful,ecausemore political," nfinitely orepregnant1-

concrete ignificance han that of the input-output," feedback,"civicculture" onceptualzcrs f thenew "science"ofpolitics.Kirch·heimers "political cience,"remainingn the greattradition fth-

Tocquevillcs nd the authors f the"Federalist," fMarxandLoren*van Stein,ofGeorgesSorcl and Carl Schmitt,s genuine"politicalsciencerather han pseudo-political science." As such it is beg»"*

ningto influence he thought nd approachof political cientistsover theworld, nd especially n thiscountry.Kirchheimer,oγλ

sure,was nota "systematic"hinker.He did not founda "school

He was above all an initiator, ut his specific alent,his sensitiv·'''to thehistoricallyelevant nd to theuniquelypolitical, aughtmar

in many fields how to understand, nalyze, and criticizepolitic*

phenomena.Like his friend ranz Neumann he died too early,^

pregnantwith deas and projects.We do notknowtowhatkind r-

whatareas of nvestigationheywouldhave led him. Whatheco*

tributedduringhis lifetime, owever,constitutes legacyv>W

placeshimsafely n the first ankof thatgrouprichin talentaâchievement hich s thesubject-matterf this ssueofSalmagw»"





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Otto Kirchheimer