Politics And The Rule Of Law

POLITICAL JUSTICE. THE USE OF LEGAL PROCEDURE FOR POLITI CAL ENDS, by Otto Kirchheimer. Princeton University Press, 1961, 452 pp.

At the outset, Dr. Kirchheimer explains that his title refers not to “the search for an ideal order” but to “the most dubious segment of the administration of justice”—that whose function it is to “eliminate a regime’s political foe according to some prearranged rules.”

No wonder that to a man the legal profession—including some highly respected liberals such as Justice Douglas—has condemned the book, rejecting its basic contentions and attacking its scholarship. In a country much given to a positivistic approach which holds that “the law is what the judges say,” it is still not considered proper to write, as the author does, that the judges say what helps to make the political regime workable. In an age that has allowed Freud to enlighten us on the earthy nature of our most sublime dreams, the administrators of justice still abhor the suggestion that Justice is anything but a flowingly clad virgin blindly weighing right and wrong in an ideal balance.

Had Kirchheimer confined himself to the charge that occasionally Justice peeks out from under her blindfold, they might have agreed. Had he merely accused the justices at times of perverting the absolute ideal of Justice, they might have applauded his elaborate marshalling of the evidence. But this is not his concern, or only incidentally. His attack is directed against the very notion of abstract justice, the ideology by which the justices live and which sustains the confidence of citizens in the society in which they live. For a regime breaks down when people no longer identify the laws (and their administration) with such an ideal yardstick. The illusion of a “just” law, in turn causes people to bear even a severe, unjust regime. Hence the lawyers reacted to this book as though they had been stung, or simply refused to understand what the author tries to say.

It is not quite as easy to see why liberals, too, felt challenged by Kirchheimer’s contention. Offhand, they should welcome a proof that the poor man or the non-conformist is always hung. But Kirchheimer has cut off the source of their indignation: by denying any absolute standard of justice, he deprived them of precisely the ideal which they accuse the establishment of perverting. Take the Dreyfus case, which still, besides the Zenger and the Sacco and Vanzetti cases, is the liberal’s grand exhibit. A man was denied justice for political reasons, and not just everyman but the French courts, too, agreed what kind of wrong had been done him. Zola was condemned, then vindicated. Clemenceau led the just cause to triumph through a political trial. In this case the courts which ought to have defended the establishment, in fact were used for its discomfiture. Worse befell in the Sacco-Vanzetti case: an i...