LAW SOMETIMES HIDES REALITY

Franz Neumann, Behemoth: The Structure and Practice of National Socialism, 1933-1944, with an introduction by Peter Hayes (Chicago: Ivan R. Dees, 1944, 2009) ("Constitutions written at the great turning points of history always embody decisions about the future structure of society. Furthermore, a constitution is more than its legal text; it is also a myth demanding loyalty to an eternally valid value system." Id. at 8. "In the center of the counter-revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice. 'Right,' Hocking has said, 'is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency.' When it becomes 'political,' justice breeds hatred and despair among those it singles out for attack. Those who it favors, on the other hand, develop a profound contempt for the very value of justice; they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of out civilization rests." Id. at 20-21 (citing William Ernest Hocking, 'Ways of Thinking about Rights: A New Theory of the Relation between Law and Morals,' in Law: A Century of Progress (New York, 1937), Vol. II, p. 261). "In theory, the state has unlimited power. It could legally do almost anything; it could expropriate anybody. If we take such legal pronouncements at their face value we shall indeed gain the impression that Germany is a state-capitalist country, in spite of the fact that we have not yet even mentioned the control of labor, of investments, and of the currency. But law, like language, does not always express reality; it often hides it. The more obvious the contradictions in a society, the more the productivity of labor increases, the more the monopolization of society progresses--the more it is the function of law to veil and hide the antagonisms until it becomes almost impossible to pierce through the mass of words. Yet this is exactly what must be done." Id. at 254. From the "Introduction": "Franz Neumann's Behemoth is one of the classics of modern political analysis. Recognized upon publication during World War II as the first thoroughly researched unmasking of what the subtitle promised--the structure and practice of Nazism--the book has remained a stimulus to inquiry and debate to this day. The provocative and controversial central argument, telegraphed by the choice of title, is that the Third Reich neither expressed a consistent ideology nor possessed a coherent structure. Like the Behemoth in Jewish mythology and the writings of Thomas Hobbes, Hitler's regime was a chaotic, lawless, and amorphous monster. Its policies expressed the sometimes overlapping and sometimes contending drives of the four symbiotic but separate power centers (the Nazi party, the German state bureaucracy, the armed forces, and big business) that composed it. But the enormous might and the inherent vulnerability of Nazi Germany stemmed, according to Neumann, from its very nature as a conspiracy among these four self-interested groups, each of which sought to expand German power and territory without ceding authority or status to any of the other parties." Id. at vii.).