immanent critque/Nuremberg/neumann

[M Salter1]

With respect to the left-Hegelian "method" (only in the most general sens=
e of
the term) of immanent critique as one of a series of grounds for social
criticism or ideology-critique, one powerful critique of such critique is=
 that=0Ait breaks down whenever confronted with precisely those regimes w=
hose=0Agenocidal conduct most deserves critique. In an earlier contributi=
on to this=0Alist I sort of accepted this
serious limitation. Now - following a study of the application of one ver=
sion
of immanent critique by Franz Neumann in his work for the US gov't's (i.e=
,
OSS) preparation for the Nuremberg Trials - I don't. I wonder what other'=
s on
this list make of the following (bearing in mind that Nazi's were charged=
 with
participation in a criminal conspiracy to wage agressive war:

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

=93Neumann had broken down the problem of war criminals into three catego=
ries:
first and most straightforward, the problem of Germans who had violated
internationally accepted conventions of warfare; second, the complex prob=
lem
of Germans who had violated municipal law; and finally, the problem of Ge=
rmans
who technically violated neither ... but who were held to be in positions=
 of
political responsibility.=94 (1989: 52).

Neumann stated that it was this third group that both posed the greatest
difficulties with respect to establishing sufficiently convincing evidenc=
e of
their specifically legal responsibility, and were thus of greatest intere=
st
for his section.  The critical question posed by this third group was tha=
t any
successful prosecution and punishment could run the risk of standing accu=
sed
of mere political justice achieved through retrospective criminalisation.=
 

2/. Such political justice would, of course, violate the very rule of law
which formed one of the pillars which supported the case for holding war
crimes trials in the first place. If such trials were to have a valuable
political and moral role in representing the judgement of history upon an
entire regime, (as distinct from a strictly military judgement), then the=
re
must be consistency between means and ends. However, if this rule of law =
based
argument was accepted in isolation from other countervailing factors, the=
n it
could undermine the entire Nuremberg process. 

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

=93In answer this question, he returned to his well-tested strategy of al=
lowing
the Nazi to do the work for him. Since the establishment principles of An=
glo-
American jurisprudence were (thankfully) inadequate to the practices of t=
he
Nazi Behemoth, he turned for guidance directly to the most prominent lega=
l
theorists to the Third Reich - E/ R. Huber, Werner Best, Otto Koellreutte=
r,
Hans Frank - and to their conceptions of =93material justice=94 in the le=
adership
state. National Socialism claimed to have replaced the =93formalistic=94 =
legal
protections of the Weimar Republic with a substantive system of justice w=
hose
basis was the =91unwritten living law of the people=92 It was embodied in=
 the
Fuhrerprinzip, the leadership principle that governed the legal theory an=
d
organisational practice of the Third Reich and whose political, economic =
and
military ramifications Neumann had traced in Behemoth. According to this
conception, every institution and association was organised as a hierarch=
ical
Fuhrungsordnung, an order of leadership in which authority is concentred =
in a
single figure. Exempt from restrictions other than =91the spirit of Natio=
nal
Socialism,=92 the leader formulates policies whose execution becomes the
responsibility of a technical apparatus of subordinate officials.=94 (198=
9: 53).

In other words, notwithstanding the difficulties which the leadership of =
a
democratic regime could quite properly raise when charged with a collecti=
ve
type of responsibility and guilt, such complaints cannot be given credenc=
e
when they are made by leading Nazis. This is because the latter are pre-e=
mpted
by their own past conduct from raising objections to collective guilt cha=
rges
since these represent the application of the very principles which have b=
een
enshrined in the Nazi regime itself. Knowingly or otherwise, Neumann=92s =
team
appeared to be endorsing a traditional maxim of =93Equity=94 (itself part=
 of
Anglo-American common law) which holds that no party can be permitted to =
deny
the validity of a state of affairs which that party has themselves previo=
usly
affimed to their own advantage. Such a party would be =93estopped=94 from=
 acting
inconsistently with the principles enshrined in their own past actions. 

4/.   More specifically, this practical application of =93immanent critiq=
ue=94 by
Neumann=92s section involved the proposition that those who willingly joi=
ned a
Nazi regime in which =93responsibility=94 was claimed by those who exerci=
sed
adminstriative control over genocidal action by others located at a lower
level within the hierarchy, cannot be allowed to deny responsibility for =
such
actions by pleading that they did not personally engage in murderous acti=
ons.
Where leading Nazis adopted a policy of replacing formal and procedural
safeguards with open-ended political definitions of =93material=94 or
=93substantive=94 criteria of criminal liability, then they have already =
prevented
themselves from claiming protection from such safeguards. As Katz states =
with
reference to Neumann=92s CES of the R&A Branch:

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

5. Here, it is important to give a close textual reading to the relevant =
R&A
Report entitled =93Leadership Principle and Criminal Responsibility=94 (b=
earing in
mind that all such reports were collective team efforts subjected to vari=
ous
levels of editorial control):

=93A system under which broad policies are devised at a certain level of
leadership but where the execution of such policies takes place at lower
levels ... would seem to place responsibility for whatever happens in the
fulfillment of such policies ... upon the particular leaders who controll=
ed
such realms, whether or not they can be proved to have given any specific
orders or even to have known of the particular methods used in carrying o=
ut
the general policies.  

In other words, traditional notions of criminal responsibility that focus
exclusively upon the subjective knowledge and acts of the accused, are
inappropriate to the task of ascribing responsibility to willing particip=
ants
with a totalitarian regime which, from the start, rejects and seeks to
eradicate individual autonomy within any realm whatsoever. 

6/. For such individuals, some conception of legal responsibility attache=
s to
the accused=92s willing participation within a large-scale criminal consp=
iracy,
even where this falls short of personal invovlement in physical acts of, =
say,
genocidal murder. Since the Nazi hierarchy itself held its own senior fig=
ures
responsible for both the failings and successes of their subordinates, th=
en
such figures cannot be allowed to escape liability by reference to purely
formal and technical notions of individual responsibility that are specif=
ic to
a democratic notion of governance that they renounce in both ideology and
practice. Katz argues:

=93Ideology, in this instance, corresponded well enough to reality to ind=
icate
the line of the political counterstrategy the Central Europeanists
recommended.=94 (1989: 53).
This section=92s report Leadership Principle and Criminal Responsibility
contains a section that, in many respects can be considered an ingenious
adpation of the Left-Hegelian notion of immanent critique, by which
institutions and their personnel are held accountable to the very ideolog=
ical
standards by reference to which they seek to legitimate themselves. Such
critique hoists ideologically-informed practices by their own petard:

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

7/. Although Katz, rather surprisingly (given his expertise in Marcuse=92=
s
version of critical theory) fails to specifically point out the affinitie=
s
between this statement and the central method of the Frankfurt School
tradition, he does still articulate its substance:
=93Turning the tables of the law on the theorists and practitioners of vi=
olence,
they used their own logic against them and gave them enough rope quite
literally to hang themselves=94 (1989: 53).

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

Michael