These two old testament monsters, these Godzillas of the Israelites, have had a long and lively history as metaphors in Western political thought.
Thomas Hobbes famously titles his conception of an authoritarian modern state, based on the mythical social contract (the king is absolute, but tied to popular sovereignty) on Leviathan. Later he wrote a pamphlet on the Long Parliament of Puritans who, do to their rational pursuit of irrational ends and abuse of power had become “Behemoth”: illegitimate, reckless power, which can, after all, only be one thing: chaos.
Leviathan (legitimate authority and sovereignty: “Mortal God”) and Behemoth (illegitimate, unchecked, irrational power: chaos).
Franz Neumann’s Behemoth, a highly competent and comprehensive legal-economistic analysis of the Nazi state, published in 1942, concludes, as you might expect, with the hypothesis that the Nazi state is a Behemoth: a non-state, chaos. The Nazis are pure opportunism; there is no political or economic theory, no concrete goals. Its the madness of power and profit enshrined as the basis of government. Most crucially: naked domination has replaced the rule of law.
Neumann is a lawyer by training and profession, but a Marxist sociologist due to circumstance and political orientation. He is therefore caught between two academic traditions and discourses. As a lawyer, he is heir to traditional German legal political theorizing. His Marxist perspective implies a close analysis of economic and class aspects to any sort of political situation.
In the golden age of classical liberal economics and liberal government – the age of Adam Smith – small merchants of all roughly equal economic resources enshrined the idea of the Rule of Law, and legal equality for all human beings. Neumann calls this the era of “competitive capitalism”, where the economic system contributed to a progressive, almost utopian legal and governmental framework. “Competitive capitalism” enshrines universal legal norms and democracy. The legal “general norm” that all men are equal before the law, (Neumann says, and with which I agree) carries with it a utopian vision of a society of not just legal equality, but social and economic equality as well.
Thus, the rule of law, the mere formal shell of law is important because of it’s utopian promise. This is a highly rational conception of law: all men are equal, it enshrines a process administered by legal experts.
The economic system – capitalism – about the mid to late 19th century, changes drastically. Profit margins decay, and thus businesses are driven to seek new sources of profit. As technology increases, investment in new sources of production are risky and expensive. What happens is that “monopoly” capitalism emerges; businesses combine into ever bigger organizations for efficiency and profit’s sake. Horizontal and vertical integration of the manufacturing processes continue apace. Modern financial and stock market tools appear. The Gilded Age of the US, and the “trust busting” of TR are reflections of this process. The boom-bust cycle of business picks up and becomes more severe.
These gargantuan industrial “cartels” become the basic economic engines of modern nations. To ensure profits, a number of things start to happen. The rule of law comes under attack. Due process for everyone is very inefficient, and profit is about efficiency. Irrational, or “exceptions” to the general norm of legality become more common.
As inequality increases, it becomes more and more apparent that formal legal equality needs a significant amount of social and economic resources to fulfill. Simply, put, legal equality is an empty, formal shell. Democracy requires a high amount of quality to function.
Vague legal phrases emerge to justify arbitrary power and action. Modern Americans will be familiar with these phrases: “National security”, “Support the Troops”, “job creation”, etc. Neumann (and myself) do not deny the potential value of these things, the problem is there complete lack of definition and accountability means that they function as authorizers of arbitrary, and therefore, fundamentally undemocratic, actions.
The lawyer-legalistic side of Neumann is responding to Carl Schmitt, a traditional German lawyer-academic, who has gone down in history as the most intelligent critic of liberal democracy and the prime theorist of fascism. To understand his position, and Neumann’s, one must go back and look at some German philosophy and history.
Hegel, who lived under the Prussian State before it unified all of Germany in 1870 (and therefore you must understand that the modern Germany state emerged undemocratically rather late in history), sees history teleologically – that is, there is a sort of progressive logic to history that will end with a sort of self-actualized, free, utopian society. Hegel works his way to a conception of duty that glorifies the modern state. Hegel decides that “Leviathan” is truly legitimate; it has transcended particular interests and caters to the genuine needs of the nation. It is a vehicle for universal interests.
I don’t think for us today, there is any doubt that this is not true, though people who don’t think about such things tend to implicitly still believe in it. Ultimatly, I see this Carl Schmitt, and Max Weber, and Neumann as Germans who are coming to terms with the reality that Hegel (they are, deep down, Hegelians) and Hegel’s conception of the state is just not true. Things are not that easy.
I suspect that having a monarch, or in Germany’s case, a Kaiser, makes it easy to hold the illusion of a State that has transcended particularism and has truly come to repent the will of the people. With the disaster of WWI, the abdication of the Kaiser, and the establishment of the generally a little-bit-dissapointing-for-everyone Weimar Republic, Carl Schmitt looks at the grubby political process and is deeply unsatisfied. The Weimar Republic, beholden to mass political parties, industrial interests, incapable of vigorous action, is a far cry from Hegel’s transcendental Leviathan-state.
I would argue that the second you start talking about the “State” and “legitimacy” and “sovereignty” and “the nation, or the will of the people”, you have already trapped yourself in a Hegelian world that is bound to disappoint. Carl Schmitt argues that particular interests are incapable of forming a universal whole. Politics, says Schmitt, is ultimately a life or death struggle, It’s friend or foe. And while liberal democracy is based on discussion, and is therefore “decision-less”, it is possible to have a strong, charismatic leader. A “decider”, who arbitrates and can represent the whole.
The “decider”, that word used by Bush II, should alert us to the continuing threat of the irrational decisionism, of the exception to the rule of law. Schmitt’s basic angst, and the capitalistic economic system that generates the dislocation of populations and alienates people continues apace. Thus Neumann’s continuing value as the “anti-Schmittian Schmittian”
Neumann postulates that the ‘utopian’ promise of “general norms”, universal rule of law in its fullest, rational sense, was never fully completed. Neumann, is first and foremost attacking Schmitt, but he is also implicitly searching for a way to essentially reinvigorate and update the rule of law and the general legal norm to the perils of the modern economic system. Neumann never comes to an actually satisfying answer; he stubbornly insists on the value of the rule of law, and correctly articulates that irrational and arbitrary commands are illegitimate and this tendency towards “decisionism” leads to the kind of modern disasters that fascism represents. Part of the problem with the “exception” (like the Patriot Act) is that it never really goes away. Exceptions tend to turn, with remarkable regularity, into the norm.
Neumann is caught in a number of debates. He is part of the traditional German legal/political theory discourse, which leads to his uncomfortable position in regards to his Marxist-inspired colleges at the Frankfurt School. He is also a founding figure in the ongoing scholarly debates about the nature of fascism today.
These are the essential and problematics today: how did Hitler come to power? To what extent was this an outgrowth and outcome of monopoly capitalism? Was the it the triumph of politics over economics, or the triumph of economics over politics? How did the Nazi regime actually function? What is chaotic or unstoppable? Would it have collapsed eventually on its own accord, or was total military defeat the only way to stop fascism?
The truth is that German civil society collapsed, and was unable to hold in check the power/profit motives of powerful institutions in Germany society. The circumstances and institutional forces that allowed Hitler and the Nazis to come to power where in many senses unaware of what they were actually authorizing or unleashing. Hitler came to power on a wave of popular angst and fear and alienation, but it was the powerful conservative forces in Germany – the major industrial cartels, the army, and the German bureaucracy, (forces that thought they could control Hitler), that made his power grab possible. Hitler represented forces of reaction, and counter-revolution afraid that the essentially democratic forces of the Weimar republic would eventually erode their power. The nearly successful socialist revolution in 1918-1920, was undone in 1933.
The true madness of the Nazis were not able to emerge until the late 30s. The real loser was civil society: democracy, labor unions, small businesses, etc…all the groups that we associate with normal life. These groups were crushed by the Nazi state and big industry.
The Nazi state had to expand or die. And this is the essential madness and chaos that Neumann tries to soberly analyze. He never fully flushed out his conclusion, I think. The lesson is that the modern state – Leviathan – is constantly decaying due the realities of our economic system into Behemoth. We need to take the rule of law seriously, and take action against these “exceptions” to the general legal norm that are springing up around us.