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Published online by Cambridge University Press: 27 December 2018
Antiliberal concepts calling the rule of law into question have an easy job with former leftists, for in those circles normative universals have never been esteemed. However, as experience in Germany in the past two centuries reveals, an element of natural law that lies within Marxism—a humanitarian normative element encompassing the ideas of equality, freedom, and justice—should and must be preserved.
1 Krygier, Martin, “Marxism and the Rule of Law,” 15 Law & Soc. Inquiry. 633 (1990).CrossRefGoogle Scholar
2 See Comaroff, John, “Re-Marx on Repression and the Rule of Law,” 15 Law & Soc. Inquiry. 671 (1990); Abel, Richard L., “Capitalism and the Rule of Law: Precondition or Contradiction 15 Law & Soc. Inquiry. 685 (1990).Google Scholar
3 Cornelia Edvardson, Die Welt zusammenfugen 26 (Munich & Vienna: Carl Hanser, 1989).Google Scholar
4 Otto v. Gierke, Deutsches Privatrecht I 252 (Munich & Leipzig, 1895). Richard Abel, 15 Law & Soc. Inquiry at 691) is wrong in maintaining that Nazi Germany claimed to respect the rule of law; as far as pre-fascist law (which was its bulk) was concerned, one was proud of standing beyond it.Google Scholar
5 Hermann Rauschning, “A Conversation with Hitler,” in The Ten Commandments (New York: 1943).Google Scholar
6 As we can read in his letter of 10 Nov. 1837 to his father from Berlin; the 19-year-old Marx was attending Hegel's lectures.Google Scholar
7 Alexander Rustow, 2 Ortsbestimmung der Gegenwart 115 (Erlenbach-Zurich: 1952). An abbreviated version of this excellent book to which these contemplations owe grace has been published in America under the title Freedom and Domination (Princeton, N.J.: Princeton University Press, 1980).Google Scholar
8 Hannah Arendt, Elemente und Ursprönge totaler Herrschaft 706 (Munchen: Piper, 1986). This passage is part of a chapter (“Ideology and Terror: A New Type of State”) which the American version, The Origins of Totalitarianism (New York, 1951), does not contain. To me this chapter is the best part of the book and should be translated.Google Scholar
9 Ernst Fraenkel, Deutschland und die westlichen Demokratien, 6.5 ed. 46 (Stuttgart: W. Kohlhammer, 1975).Google Scholar
10 See Krygier, 15 Law & Soc. Inquiry at 648 (cited in note 1).Google Scholar
11 Karl Marx, The German Ideology Preface.Google Scholar
12 See Tönnies, Sibylle, “Is Law an Eco-System 1 Social & Legal Stud. 3 (1992). Richard Abel, 15 Law & Soc, Inquiry at 686 (cited in note 2), rightly stresses that the antilegal attitude of former Marxists has vanished. When he asks, “Who takes their positions now?” the answer must be, “Bourgeois theory does!”CrossRefGoogle Scholar
13 See Comaroff, 15 Law & Soc. Inquiry at 674 (cited in note 2); in the same discussion, Maureen Cain, “On Babies, Bibles, and Bathwater,” 15 Law & Soc. Inquiry 679, 681, regards this morality as the baby, which must be “prevented from vanishing with the totalitarian bathwater.”Google Scholar