Re: BHA: Nazism and the limits of immanent critique

[M Salter1 <MSalter1@xxxxxxx>]

Bhaskar credits the left-Hegelian "method" (only in the most general sens=
e of=0Athe term) of immanent critique as one of a series of grounds for s=
ocial=0Acriticism or ideology-critique.

One powerful critique of such critique is that it breaks down whenever=0A=
confronted with precisely those regimes whose genocidal conduct most dese=
rves=0Acritique. In an earlier contribution to this list I sort of accept=
ed this=0Aserious limitation. Now - following a study of the application =
of one version=0Aof immanent critique by Franz Neumann in his work for th=
e US gov't's (i.e,=0AOSS) preparation for the Nuremberg Trials - I don't.=
 I wonder what other's on=0Athis list make of the following (bearing in m=
ind that Nazi's were charged with=0Aparticipation in a criminal conspirac=
y to wage agressive war:

1/. Neumann argued that a highly differentiated response was called for=
=0Adepending upon the possible remedy available. As Katz states:

=93Neumann had broken down the problem of war criminals into three catego=
ries:=0Afirst and most straightforward, the problem of Germans who had vi=
olated=0Ainternationally accepted conventions of warfare; second, the com=
plex problem=0Aof Germans who had violated municipal law; and finally, th=
e problem of Germans=0Awho technically violated neither ... but who were =
held to be in positions of=0Apolitical responsibility.=94 (1989: 52).

Neumann stated that it was this third group that both posed the greatest=
=0Adifficulties with respect to establishing sufficiently convincing evid=
ence of=0Atheir specifically legal responsibility, and were thus of great=
est interest=0Afor his section.  The critical question posed by this thir=
d group was that any=0Asuccessful prosecution and punishment could run th=
e risk of standing accused=0Aof mere political justice achieved through r=
etrospective criminalisation.

2/. Such political justice would, of course, violate the very rule of law=
=0Awhich formed one of the pillars which supported the case for holding w=
ar=0Acrimes trials in the first place. If such trials were to have a valu=
able=0Apolitical and moral role in representing the judgement of history =
upon an=0Aentire regime, (as distinct from a strictly military judgement)=
, then there=0Amust be consistency between means and ends. However, if th=
is rule of law based=0Aargument was accepted in isolation from other coun=
tervailing factors, then it=0Acould undermine the entire Nuremberg proces=
s.

3/. Neumann=92s proposed solution, which was consistent at least with the=
=0Adialectical method of immanent critique, was to turn the Nazi=92s own =
=93law=94 back=0Aupon themselves. With respect to the question of =93how =
is their responsibility=0Ato be established?=94 Katz suggests:

=93In answer this question, he returned to his well-tested strategy of al=
lowing=0Athe Nazi to do the work for him. Since the establishment princip=
les of Anglo-=0AAmerican jurisprudence were (thankfully) inadequate to th=
e practices of the=0ANazi Behemoth, he turned for guidance directly to th=
e most prominent legal=0Atheorists to the Third Reich - E/ R. Huber, Wern=
er Best, Otto Koellreutter,=0AHans Frank - and to their conceptions of =
=93material justice=94 in the leadership=0Astate. National Socialism clai=
med to have replaced the =93formalistic=94 legal=0Aprotections of the Wei=
mar Republic with a substantive system of justice whose=0Abasis was the =
=91unwritten living law of the people=92 It was embodied in the=0AFuhrerp=
rinzip, the leadership principle that governed the legal theory and=0Aorg=
anisational practice of the Third Reich and whose political, economic and=
=0Amilitary ramifications Neumann had traced in Behemoth. According to th=
is=0Aconception, every institution and association was organised as a hie=
rarchical=0AFuhrungsordnung, an order of leadership in which authority is=
 concentred in a=0Asingle figure. Exempt from restrictions other than =91=
the spirit of National=0ASocialism,=92 the leader formulates policies who=
se execution becomes the=0Aresponsibility of a technical apparatus of sub=
ordinate officials.=94 (1989: 53).

In other words, notwithstanding the difficulties which the leadership of =
a=0Ademocratic regime could quite properly raise when charged with a coll=
ective=0Atype of responsibility and guilt, such complaints cannot be give=
n credence=0Awhen they are made by leading Nazis. This is because the lat=
ter are pre-empted=0Aby their own past conduct from raising objections to=
 collective guilt charges=0Asince these represent the application of the =
very principles which have been=0Aenshrined in the Nazi regime itself. Kn=
owingly or otherwise, Neumann=92s team=0Aappeared to be endorsing a tradi=
tional maxim of =93Equity=94 (itself part of=0AAnglo-American common law)=
 which holds that no party can be permitted to deny=0Athe validity of a s=
tate of affairs which that party has themselves previously=0Aaffimed to t=
heir own advantage. Such a party would be =93estopped=94 from acting=0Ain=
consistently with the principles enshrined in their own past actions.

4/.   More specifically, this practical application of =93immanent critiq=
ue=94 by=0ANeumann=92s section involved the proposition that those who wi=
llingly joined a=0ANazi regime in which =93responsibility=94 was claimed =
by those who exercised=0Aadminstriative control over genocidal action by =
others located at a lower=0Alevel within the hierarchy, cannot be allowed=
 to deny responsibility for such=0Aactions by pleading that they did not =
personally engage in murderous actions.=0AWhere leading Nazis adopted a p=
olicy of replacing formal and procedural=0Asafeguards with open-ended pol=
itical definitions of =93material=94 or=0A=93substantive=94 criteria of c=
riminal liability, then they have already prevented=0Athemselves from cla=
iming protection from such safeguards. As Katz states with=0Areference to=
 Neumann=92s CES of the R&A Branch:

=93The interpenetration of formal and substantive, of the political and t=
he=0Atechnical, became emblematic of much of the Section=92s work on the =
problem of=0Acriminal responsibility in a totalitarian state=94 (1989: 53=
).

5. Here, it is important to give a close textual reading to the relevant =
R&A=0AReport entitled =93Leadership Principle and Criminal Responsibility=
=94 (bearing in=0Amind that all such reports were collective team efforts=
 subjected to various=0Alevels of editorial control):

=93A system under which broad policies are devised at a certain level of=
=0Aleadership but where the execution of such policies takes place at low=
er=0Alevels ... would seem to place responsibility for whatever happens i=
n the=0Afulfillment of such policies ... upon the particular leaders who =
controlled=0Asuch realms, whether or not they can be proved to have given=
 any specific=0Aorders or even to have known of the particular methods us=
ed in carrying out=0Athe general policies.

In other words, traditional notions of criminal responsibility that focus=
=0Aexclusively upon the subjective knowledge and acts of the accused, are=
=0Ainappropriate to the task of ascribing responsibility to willing parti=
cipants=0Awith a totalitarian regime which, from the start, rejects and s=
eeks to=0Aeradicate individual autonomy within any realm whatsoever.

6/. For such individuals, some conception of legal responsibility attache=
s to=0Athe accused=92s willing participation within a large-scale crimina=
l conspiracy,=0Aeven where this falls short of personal invovlement in ph=
ysical acts of, say,=0Agenocidal murder. Since the Nazi hierarchy itself =
held its own senior figures=0Aresponsible for both the failings and succe=
sses of their subordinates, then=0Asuch figures cannot be allowed to esca=
pe liability by reference to purely=0Aformal and technical notions of ind=
ividual responsibility that are specific to=0Aa democratic notion of gove=
rnance that they renounce in both ideology and=0Apractice. Katz argues:

=93Ideology, in this instance, corresponded well enough to reality to ind=
icate=0Athe line of the political counterstrategy the Central Europeanist=
s=0Arecommended.=94 (1989: 53).
This section=92s report Leadership Principle and Criminal Responsibility=
=0Acontains a section that, in many respects can be considered an ingenio=
us=0Aadpation of the Left-Hegelian notion of immanent critique, by which=
=0Ainstitutions and their personnel are held accountable to the very ideo=
logical=0Astandards by reference to which they seek to legitimate themsel=
ves. Such=0Acritique hoists ideologically-informed practices by their own=
 petard:

=93In reversing these standards and in making the Nazi leaders responsibl=
e for=0Awhat we consider as war crimes, they would indeed have to answer =
for what has=0Aactually been done in accordance with their own standards =
and policies=94

7/. Although Katz, rather surprisingly (given his expertise in Marcuse=92=
s=0Aversion of critical theory) fails to specifically point out the affin=
ities=0Abetween this statement and the central method of the Frankfurt Sc=
hool=0Atradition, he does still articulate its substance:
=93Turning the tables of the law on the theorists and practitioners of vi=
olence,=0Athey used their own logic against them and gave them enough rop=
e quite=0Aliterally to hang themselves=94 (1989: 53).

Does this answer the case against the critique of immanent critique?

Michael






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