The Chomsky Effect: A Radical Works Beyond the Ivory Tower (The MIT Press) by Robert F Barsky

Author:Robert F Barsky
Language: eng
Format: azw3
ISBN: 9780262026246
Publisher: MIT Press
Published: 2009-09-18T05:00:00+00:00

Rule of Law versus Exceptions in Law

The statements Chomsky makes about classical liberalism are often challenged in the current postmodern setting, in which subjectivity, the possibility of communication, and a sense of common values are called into question on the basis of the indeterminate and unstable subject. The idea that “mutual agreements” could exist between “free and equal” individuals, necessarily constituted as stable subjects with consistent and knowable needs and desires, and upheld by international organs such as international law, has been everywhere upset by postmodern and poststructuralist thought. This is not an area into which I will venture at any length, but instead would suggest that the reader refer to the debate between those who, from a postmodern perspective, uphold the idea that we need ample discretion in law46 and those who consider such a heavily discretion-based system as a menace to fundamental rights and freedoms,47 and thus consider that it was no accident that the early advocate of this approach, Karl Schmitt, was the architect of Nazi law.

In line with this anti-postmodern idea that we need stable, consistent, and founded laws that would be applied in a formal fashion across time and space, William Scheuerman suggests in Between the Norm and the Exception: The Frankfurt School and the Rule of Law48 that the tendency in most Western states is to move away from a classical liberal notion of rule of law, with its insistence upon consistent and universal legal norms, and toward a form of law that “takes an increasingly amorphous and indeterminate structure as vague legal standards like ‘in good faith’ or ‘in the public interest,’ proliferate” (1). Scheuerman claims that Franz Neumann and Otto Kirchheimer, who were both associated with the Frankfurt Institute for Social Research in the late 1930s and 1940s, saw in this trend a danger that was confirmed in the reliance of the Nazi state upon the work of scholars such as Carl Schmitt and Friedrich Hayek for the elaboration of a legal system appropriate for Nazi Germany. Schmitt's idea was to infuse huge state or legal discretion into cases as a way of combating formal law, an idea that has been revitalized of late by the left (especially Paul Piccone and G. L. Ulman in Telos), the right (William Buckley and Paul Gottfried in the National Review), by various postmodern historians and writers, and by mainstream writers including Joseph Bendersky and George Schwab. Scheuerman's book has implications beyond either a social history of Germany or a more adequate appraisal of the Frankfurt School, because he discusses the inherent dangers of a legal system that relies upon situation-specific administrative decrees, or upon interpretations of claims that depend upon notions such as custom, indwelling right, morality, fairness, or discretion. The danger of “extensive state intervention in an unprecedented variety of spheres of social and economic activity” is that the division between state and society is undermined, reducing the degree to which government action can be deemed predictable or, to use Rocker's conception, legitimate.

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