Reviews of Political Justice, Undated

POLITICAL JUSTICE: ‘THE USE OF LEGAL ‘PROCEDURE FOR POLITI-
cimer. (Pri ceton, NoJa Princeton University
Press. 1961. Pp. xiy,, 452. $8, 2) =

45 i)

Proresson Kirchheimer of Columbia University and the New schol “offers
a weighty contradiction to Aristotle’s fond delusion that “the law is reason unaf-
fected by desire.” In braye leaps and broad bounds actoss time and place, the
author proceeds topically to examine the many guises that political trials have
taken, and assume today. He took on a task of large magnitude and great com-
plexity. The story of political justice involves governments, political parties both
legitimate and illicit, judges, lawyers, and defendants.,It ranges from medieval
proceedings to the Hiss.and Eichmann causes and to the 1961 term of the United
States Supreme’ Court. Considering the scope of this work, it is very much to
Kirchheimer’s credit that he as eanteol a almost all the many threads a
which he wove this ‘narrative, * :

: He lets the reins slip only rarely, and perhaps because the author i is more at
herd in European sources than in matters concerned with the United States. As an
example, the footnote on page 137° contains minor errors. A mistake of greater
significance occurs on page’ 407, where Kirchheimer. suggests that Lincoln’s 1863
pardon program had little immediate effect. Thee evidence Points to a sharply. dif-
ferent, if not opposite, conclusions. 1. i. ah Cl aaleae vote

: Kirchheimer has not merely catalogued causes ‘célabres. Rather he picked and

Pe

Re Ween

fire. Me bn

680 Reviews of Books

chose, primarily from Europe's history, for instances of political justice and injus-
tice that illuminated his thesis. Some readers may protest that the author con-
centrated on Western Europe, but omitted comment on Spain or Latin America.
‘There was quite enough to occupy Kirchheimer in what he undertook, His omis-
sions suggest the need for a companion volume ‘rather ‘than an imbalance in the
present one. :

I find more to criticize in the topical organization that the author employed.
It led to piecemeal reporting and analysis and to repetitive summaries. ‘This organ-
ization, together with the “academic” prose style that dominates and strait-jackets
the flow of narrative, makes progress through the text glacially slow. Ironically,
Kirchheimer in a footnote describes a book as a story “told in stilted narrative.” So
is this one, except for infrequent and welcome flashes of warm, vivid imagery.

This is, nevertheless, a learned, successful, and significant work, For the first
time, a*reliable, thorough guide is available to those power mechanisms function-
ing through the courts that have played such an important role in the development
of modern nations, These mechanisms, Kirchheimer depressingly concludes,
promise further to expand the use of political trials even in the free lands of the
world, More than ever, courts will be involved in politics, if only because cold
war pressures are almost everywhere bringing forth enlarged internal security
programs,

Whatever the pattern for the near future, Kirchheimer deserves the gratitude
of all those who seek guidelines from the past. His book is destined for extensive
use by workers in constitutional history and by all students of history and govern-
ment. I hope that makers of policy as well as scholars read it.

University of California, Los Angeles Harotp M, Hyman

1722 COMMENTARY

couraged in the interest of his writing-it-out,
since it is, after all, as a writer rather than
as a tough guy that he interests us.

There is a Verlaine-like charm in the re-
frain he repeats throughout Deaths:

doing the limbo bit
doing the limbo bit
it’s good enough
for me
But I see no charm in the sadistic note often
struck, as:

Why do that,
why
not leave
violence
alone?
Because
said
when learn
do this
can

give
penknife

a knife,
there’s
some
love
left.

At the risk of being tedious, and of ques-
tioning the logic of a century and a half of
romanticism, I say that not using a knife
is a more convincing demonstration of “some
love left” than using one. It is time to give
away that penknife, I think. And is doing the
limbo bit really good enough for a writer
as talented and ambitious and, for all his
hipster-movements to avoid it, as hooked
on political protest as Norman Mailer is?

Life is one thing, art is another, to be
even more tedious. Hemingway confused his
life with his writing in his later years and
of late Mailer seems to be doing the same.
The danger is that he will, like Hemingway,
try so hard to live up to his literary personal-
ity—a more destructive one than Heming-
way’s was, by the way, because the period we
live in is more destructive—that he will have
slight energy left over for writing; or, worse,
that he will write so as to maintain his public
image. Too much of Deaths for the Ladies is

CTA

Hemingwayesque muscle-flexing against the
squares (but Hipsterism can be pretty square
too); there is too much tough-stuff, too
much I’ve-been-around stuff. The great
hope is that Mailer is more conscious of
himself and brighter than Hemingway was;
also, for these reasons, he has a much better
sense of humor. And humor, as I observed
at the start of this sermon, is the salt that
keeps a great deal of Norman Mailer’s re-
cent work fresh,

LAW & POLITICS

PourricaL Justice: Tue Usr or Lucan
ProcepurE ror PoririaAL Enps. By
Orro Kircuuerer. Princeton Univer-
sity Press. 452 pp. $8.50.

Reviewed by C. PerER MacraTH

BEGINNING WITH THE succinct observation
that “Every political regime has its foes or
in due time creates them,” Professor Otto
Kirchheimer of Columbia University and
the New School for Social Research has
writen a learned treatise on what he calls
political justice—the manipulation of the
modern state’s legal machinery by power
holders, and, conversely, by power chal-
lengers. The question of what is and what
is not “political” may present a pitfall, but
Kirchheimer very sensibly labels as political
that which dominant groups and individuals
conceive “to relate in a particularly inten-
sive way to the interests of the community.”
Such a definition allows for shifting concep-
tions of what is politically significant: to
Henry VIII his spouse’s failure to inform
him of her premarital loss of virginity was
treasonable; to the Nazis Jewishness was a
crime justifying the imposition of brutal po-
litical sanctions. One could, of course, de-
scribe all justice as political, since without
the authority of a public (political) order
no legal system would be possible. But
Kirchheimer’s focus is on a reasonably dis-
tinct segment of justice: the use of statutes,
courts, judges, public prosecutors, lawyers,
juries, and defendants (also, perforce, part
of the political-legal machinery) to affect
power relations.

The theme is broad, but Kirchheimer
stays close to his concern with the forms,
motivations, and ends that characterize the

Cormomirdang — feely M2

a modestly comfortable. level of living),
Mr, Harrington therefore concludes that be-
tween 40 and 50 million Americans now live
in poverty, real poverty, the kind one reads
about in Gorky or Zola, the kind that was
described by President Roosevelt in his
“one-third-of-a-nation” speech, It’s now,
after almost a quarter of a century of the
greatest prosperity we have ever known, per-
haps reduced to one-fourth-of-a-nation but
that is still “a massive affliction.”

Mr. Harrington describes very well the
psychological effects of this poverty—the
alienation, the violence, the desperation, the
apathy—and one thinks of Norman Mailer’s
attitude toward American society. But there
is a crucial difference: the ast word does
not apply, since Mailer has never been im-
poverished: he went to Harvard, he wrote
one of the biggest postwar best sellers, he is
definitely not a citizen of The Other Amer-
ica, The alienation felt by the one-fourth of
a nation that Mr. Harrington has anatom-
ized is a blind reaction to an intolerable
situation, but Mailex’s is willed and con-
scious, Therefore he should be able ta raise
a banner more inspiring than the one he
now marches under, I don’t mean Sartrean
commitment or Russian social realism, which
are restraints—accepted from either masoch-
ism or priggishness according to one’s temp-
erament—on that ego which the artist must
express freely if he is to be more than a hack,
And I don’t mean a regression to Progres-
sivism or romantic Marxism, Between these
over-politicalized extremes and the solipsistic
rebellion of Hipsterism there is some ground
and perhaps the most fertile for Mailer since
he (rightly) refuses either to subordinate his
ego to politics or to leave politics alone, In
Deaths for the Ladies, he implies a criticism
of society, but it remains an implication,
drowned out by the author’s personal his-
trionics; he seems uninterested in, and even
unaware of, the factual existence of the
society he is criticizing: perhaps this is a
reaction from his former over-politicaliza-
tion, but the reaction has gone too far, If
cancer is to be his key metaphor about
American life, he should know what he’s
talking about and one should feel some con-
nection between a book like The Other
America and one like Deaths for the Ladies.
But one doesn’t because, although both
authors’ have detected sinister shapes far

BOOKS IN REVIEW 171

down in the placid waters of our prosperity,
Harrington has really looked down there
while Mailer has merely looked into his
heart—and found not Calais but Cancer
engraved thereon, He should be more aware
of what’s going on Inside America—he’s al-
ready an expert on Inside Mailer. A polit-
ical Hipster seems to me a contradiction in
terms.

One Last sermon and I’m through. There
was a, controversy some years ago between
Norman Podhoretz (writing in Partisan Re-
view) and Norman Mailer (writing in Dis-
sent) about the moral significance of the
killing, in the course of a holdup, of an
aged candy-store proprietor by some male
teenagers. As I recall the argunient, Mailer
saw the killers as rebels against bourgeois
society whose act expressed a heroic élan
vital because they dared, to risk arrest and
the electric chair. (I hope they got life—
I’m against capital punishment because, not
being a hero, I abhor killing.) Podhoretz
saw them as simply juvenile delinquents,
typical of the young toughs who were’ then
more of a menace in the city than they are
now, and he thought it the opposite of hero-
ism for a gang of youths to kill an unarmed
old man. As the loaded terms in which I’ve
presented the argument shows, I agreed
with Podhoretz. Now, I know Norman
Mailer fairly well, and he is not anything
like those young punks; but he has a roman-
tic notion that violence is creative and that
only a coward will avoid a fight; he has
proved his courage more than once, I gather
—and all the more so since he often comes
out on the short end. Although he is, at
least when I’ve seen him, the most patient
and genial of men, Mailer is infatuated with
the idea of violence; he thinks it proves
something—manhood, sincerity, love, God
knows what. And so, as in his writing he is
always running it out to the very end, trying
to see how much the traffic will bear, in his
life he also pushes things as far as they will
go, and often a bit farther. His literary ex-
tremism and je m’en foutism offend the
academics, and the same qualities in his
philosophy of life get him into trouble with
the police, I think the academics are wrong,
but I think the cops have a point, though
they aren’t the ones to enforce it, namely,
that Mailer’s living-it-out should be dis.

relationship between politics and law in the
modern state. Yet his notion of political
justice is necessarily so encompassing—
touching on famous treason trials, political
defamation suits, legal repression of political
organizations, asylum and clemency—and
the frame of reference so wide-ranging—
the United States; the Soviet Union; the
Weimar, Nazi, and post-World War II Ger-
man regimes; and the periodically chang-
ing French systems—that the book seems
almost encyclopedic. Some may conclude
that it is indeed essentially a reference work.
Yet, throughout, runs the connecting link of
Kirchheimer’s conviction: that political jus-
tice, which frequently turns into the epitome
of injustice, is an imperative which states
cannot escape. No one can put down Kirch-
heimer’s large-scale study without having
acquired a new insight into the way modern
governmental systems make political use of
law and legal apparatuses.

INDEED, ALMOsT EVERY chapter offers a few
refreshing insights. Kirchheimer points, for
example, to the troublesome dilemma which
hostile minority groups create for democratic
governments: that repression, when it is
“foreseeably effective . . . seems unneces-
sary; when advisable in the face of a serious
threat to democratic institutions, it tends to
be of only limited usefulness and it carries
the germs of new, perhaps even more men-
acing dangers to democracy.” This “limited
usefulness” arises from the fact that, though
seriously threatened, democratic regimes
often find it expedient to repress minority
groups when these: represent significant in-
terests and portions of the population. Thus,
the Weimar Republicans in the late 1920’s
had to contend with the dual threats pre-
sented by the Nazi and the Communist
parties. And the postwar Italian and French
governments faced a similar problem in
dealing with the militant and well-disci-
plined Communist organizations. As Kirch-
heimer observes, “Any attempt, repulsive
per se to a democratic society, to deflect
such mass aggressions into government-
chartered and government-operated chan-
nels, would be likely to line up easily ma-
neuverable cohorts of uprooted men under
orders—another mortal threat to the demo-
cratic process.” The practical consequence
of this is that only a stable democratic re-

BOOKS IN REVIEW 173

gimme, for instance that of the United States,
can afford to repress hostile minorities. And
yet, precisely because it can repress—the
minority is insignificant; the revolutionary
appeals it makes fall on deaf ears—there is
the least objective need to do so.

Kirchheimer is much too worldly-wise to
believe that this ends the matter. While an
anti-democratic group may not be an “ob-
jective threat” to the established govern-
ment, the holders and manipulators of
power may choose legal repression for any
number of political and psychological rea-
sons, By firmly suppressing the neo-Nazi
Socialist Reich party and the Communist
party, both weak and numerically small, the
West German Federal Republic responded
to a number of factors and served a number
of ends: it reacted to the bitter experience
of the past with anti-democratic groups; it
enhanced its world image as a new nation
which rejects Nazism and takes a “no-non-
sense” attitude toward anti-democratic
forces; and (in outlawing the CP) it aligned
its domestic policy with its “hard” foreign
policy line toward Moscow. Similarly, the
United States government’s policy toward
the Communist party in its midst (a policy
which, in practice, if not in form, aims to
destroy the party) is heavily influenced by
the desire of our political leaders to demon-
strate their vigilance in guarding America
against the threat of Communism. I would
suggest, too, that this reaction ties in with
the felt need of the American people to lash
out at their tormentors in one of the few
tangible ways short of war that seems open
to them,

For his part, Kirchheimer here favors a
policy of toleration as harmonizing with
democratic theory; he argues that legal re-
pression against weak anti-democratic
groups damages “the ligaments of demo-
cratic institutions.” The discussion signifi-
cantly underlines Kirchheimer’s general ob-
servation that permanent repression of
hostile mass organizations is inexpedient
while repression of tiny minorities is un-
necessary, If this conclusion in itself may
seem even trite, it nevertheless conveys a
profound truth: that only by removing the
causes of mass dissatisfaction can a regime
attain the luxury of not needing to suppress
hostile minorities. It is a conclusion that one
wishes would sink through to the rulers of

174 COMMENTARY

a country like South Vietnam—and to the
American Congress when it votes on foreign
trade and aid bills.

Tavs, pespite A cooLLy analytical ap-
proach, Kirchheimer does not shy away
from expressing his views on such questions
as the legal repression of minority organiza-
tions, the correctness of the Nuremberg War
Crimes Trials, or the thoroughly politicized
legal systenis characteristic of totalitarian
states. In this respect, he is unlike those
many writers in the social sciences who are
addicted to a maddening neutralism which
decrees that personal opinions are to be
scrupulously avoided—a sort of forbidden
fruit not to be tasted by social scientists.
Nevertheless, an inconclusive tone does per-
meate Kirchheimer’s study—a fascination
with ironies and “sociopolitical paradoxes.”
He ends his chapter on “Legal Repression of
Political Organizations” by commenting on
the irony that forces those who advocate re-
pression in a democtatic society to justify
each repressive act, adding, “Is this not at
least a remarkable testimonial to the merits
of constitutional processes rooted in the
democratic system?” He concludes the book
by invoking Clio, the Muse of History, who,
“in her compassion may hide from both de-
fendant and judge what and whose titles
will eventually be disproven.” And Clio may
well refuse an unambiguous answer, indi-
cating that both were on fools’ errands.
“Meanwhile,” he writes, “may we pray for
both potential brethren in error?”

To an extent, Kirchheimer’s disinterested-
ness and his fondness for paradoxical obser-
vation and ironical questions bespeaks an
understandable skepticism about the exag-
gerated claims of rightness raised by those
who are participants—either as users or used
—in the drama of political justice. But be-
yond this, Kirchheimer’s resigned and quiz-
zival tone reflects a deep pessitnisin overlay-
ing his personal humanitarianism. He expects
little from man; at the very best, man may
refrain from treating his brother with in-
humanity, but never will he show much
capacity for justice. “To the past, present,
and future victims of political justice,” Otto
Kirchheimer dedicates his book. That, in-
evitably, there will be future victims of po-
litical justice is the implicit assumption
which binds this multifaceted work together.

A JEWISH ARISTOTELIAN

Juvaism as 4 Paosopny; Tur Puioso-
pry or AsrAnam Bar Hiyya. By Leon
D. Srrrsxin. Bloch. 251 pp. $4.50.

Reviewed by Jerome EcxsTrmn

AN INTEREST AND importance that it might
otherwise not have had is given to this work
by the “imprimatur” it bears of the Yeshiva
University—the first time the school has
chosen to extend such special approval to
any publication, Thus the book must bé
taken not only as conveying the viewpoint
of its author (who is Professor of Jewish
Philosophy at Yeshiva’s Graduate School)
but as being a quasi-official expression of a
respectable segment of American Jewish Or+
thodoxy. Unfortunately, this group becomes
co-answerable for Professor Stitskin’s weak-
nesses in argument.

Professor Stitskin, in his turn, has made
the similar mistake of insisting that the views
of a single medieval Spanish Jewish thinker,
Bar Hiyya (1065-1143), constitute an offi-
cial philosophy of Judaism “, . . unique in
its insights and timeless in its essence.” But
no philosophy has as yet demonstrated its
absolute certainty—not even that of Aris-
totle, whose conception of the universe Bar
Hiyya depends on. Rejecting all modern and
non-Aristotelian philosophy—and retaining
even, by implication, Aristotle’s astronomy—
Professor Stitskin must needs invoke the
deus ex machina of revelation and faith
every time he is confronted with a contra-
diction or difficulty,

Not only does Professor Stitskin believe
that “Aristotle projected a world picture
which formed a perfect [nty italics] back-
ground for an adequate appraisal of man’s
rational soul,” but he tries to prove that
many of the metaphysical categories basic to
Greek philosophy are anticipated in the
Bible. In support of this astonishing view,
Professor Stitskin invokes Judah Halevi,
Abraham Ibn Daud, Maimonides, and “even
non-Jewish writers” (he refers especially to
Eduard Munk who wrote in 1848), And he
cites Josephus (without reservation) as quot-
ing another author’s beliefs that Pythagoras
was a disciple of the prophet Ezekiel; that
Socrates derived his concepts from Achitho-
phel and from Asaph, the Psalmist; that

ae

areit OF Sen, > and behavior, A, large
number of source notes is included,

HILLIARD A, GARDINER

, O. Political Yustice: Th

Use of Legal Procedure for Polisiegt
Ends, Princeton: Prinecton University

_Diess, 1961. Dp. Sey

>
in this book adverts to the utilization
of the devices of justice to bolster or
create New power positions, Its aim is
to calist the judiciary in behalf of
political goals, In the first of three
Parts, the cases, causes, and methods
of political justice are treated, the
nature of the changes in the structure

of state protection in recent years as

contrasted with earlier practices being

Avani eon Sowwal of

Ci rst l {ou
te jal 63

‘The term political justice as used |

1962] BOOK NOTICES 681

initially defined. The political trial
and the various types of legal repres-
sion of political organizations are then
considered. Resort to the courts may
be of necessity, choice, or mere con-
venience, The political trial may in-
volve a common crime, the exploi-
tation of which may be politically
advantageous, or the subjection of an
opponent to public incrimination or
defamation, perjury and contempt.
Causes célebres, like those of Caleb
Powers for the murder of Governor
Goebel in 1900, Joseph Caillaux for
treason against France in 1918, and
Reich President Friedrich Ebert's
defamation action in 1924, are used
illustratively. The nonconstitutional
trials of Andre Bonnard in Switzer-
land, Otto John and Heinrich Agartz
in West Germany, and various de-
fendants in Communist countries and
Nazi Germany held after the second
World War are described to dem-
onstrate how the area of politically
prohibitable activity has been en-
larged. That the trial is a manipulable
technique in the process of repressing
hostile groups, even, within the frame-
work of democratic institutions, is
affirmed in Part One’s historical and
analytical account of the forms of
treatment applied by established
regimes to opposition groups.

In Part Two, the organizational
and societal framework for judicial
action within a constitutional and.
one-party regime is described. Here
there is much that will interest the
student of comparative law, ranging
from an account of judicial recruit-
ment on the continent and in Anglo-
American practice, through a con-
sideration of varying approaches to
the prosecution of political deviation.
The judge gets the major portion of
the attention; though an occasional
participant in the community’s vital
policy actions, he checks, remodels, or
forces changes through “interstitial”
action, invokable only when sought
after. In the heterogeneous society,
the absence of commonly accepted

starting propositions precludes impar-
tiality; where there is homogeneity he
may be a mere shuffler of legal tech-
nicalities, Such is suggested to have
been the case in the trial of the Amer-
ican Communist Party in 1949, illus-
trative of the international nature of
the twentieth century political trial,
serving, as it does, as a focal point
for political strategy throughout the
world. Within the Soviet orbit, to
which this proposition necessarily
applies, the goal is maximal harmony
between judicial activity and official
policy, with every case “ideally” de-
cided in the light of the contribution
renderable to the momentary pro-
gram’s fulfillment, Here the content
of legality shifts to permit enforce-
ment of norms deemed within “points
of concentration.” Germany’s Na-
tional Socialist regime is distinguished
as never having had as its goal any
basic change in property relationships
and social stratification; the law’s con-
tinuity was insisted upon while its
revolutionary features and innate law-
lessness were conveniently over-
looked. Trial by fiat of a successor
regime, as exemplified by the Nurem-
berg war crimes trial, is considered
finally in Part Two, with attention
specifically directed to four of the de-
fense’s rejoinders and the general
question of jurisdiction in cases of
this nature,

Asylum and clemency, devices for
the countermanding of the course of
political justice and the frustration of
its effects, are discussed and analyzed
in Part Three, in the course of which
practices and customs in different
jurisdictions are compared. How the
shifts in political constellations and
usages affect the approaches of adjudi-
cating and adjudicated, how they in-
termesh with time-honored practices
and traditional principles, and how
they relate to the irreducible re-
mainder beyond rational determina-
tion are political issues to which atten-
tion is directed, In the Soviet Union,
for ‘example, traditional nineteenth

682

century notions of political asylum as
a noble service to be granted to the
politically persecuted clash strikingly
with a practice that predicates refuge
upon the individual’s serviceability to
the party machine, Some vestiges of
hallowed tradition, that America is a
haven to all comers, exist in the
United States, although three decades
of restrictive immigration policies
have narrowed the scope of asylum
chances, Great Britain most stead.
fastly upholds a liberal asylum trad
tion, while West Germany’s Basic
Law is permissive, but the list of
countries neglectful of asylum prin-
ciples is considerable. Necessarily,
present day conditions involve govern.
ments in economic, public welfare,
and administrative headaches, dealing
as they must with huge masses of the
politically persecuted, but, as is the
case with the clemency device, where
some subjectivity seems warranted in
the light of humanity’s present per-
formance, political asylum appears
vindicable in a deeply divided world,
setting, as it does, some limit to any
regime's power.

Professor Kirchheimer, by seeking
to relate political content to juridical
form and exposing it, performs, by
this act alone, a notable service. Be-
cause justice in political matters is
more tenuous than in any other field
of jurisprudence, and because our
international professions rarely co-
incide with our politico-national prac-
tices, his use of materials from many
sources to evolve a less diffuse notion
of what surrounds us warrants an
accolade, He convincingly develops
the theses that every political re-
gime has its foes; that courts sit in
readiness to settle conflict situations,
and in so doing, eliminate political
foes according to prearranged rules;
and that beyond their power to
authenticate official action, the courts
have become a dimension through
which many regimes can affirm their
policies and integrate the population
into their political goals. The sweep

‘THE AMERICAN JOURNAL OF COMPARATIVE LAW

(Vol. 11

of his scholarship is immense; he
ranges over Greek, Roman, Euro-
ean, and American referents; he
Pistorifes, he classifies, he analyzes,
he compares. His toughmindedness
shows through in many a well-
turned phrase and jugular charac-
terization, But his direction, more
often than not, seems uncertain, and
his value system, more frequently
than less, seems vague. Political jus-
tice is on the one hand denigrated,
and on the other, condoned. The
“Sudicial space” within which it is
found to be operative is not suf-
ficiently defined to give to it a func-
tioning personality, It is an “eternal
detour, necessary and grotesque,
beneficial and monstrous”; without
political justice and the intercession
of the judicial apparatus, the fight
for political power “would be less
orderly.” It begins to fill all voids and
in the process of being neutralized
prompts evocation of the question
whether it is not indeed consonant
with justice, To this question an
answer is wanting, One can under-
stand why it is of importance for
the Supreme Court of the United
States to decide whether a question is
justiciable or political; if the latter,
the result, if one follows, is not of
the Court's direct making. Why jus-
tice should be subdivided in the pres-
ent endeavor requires clarification,
which may well be the very next
undertaking that the author embarks

upon,
HILLIARD A. GARDIN} oa

Paumur, N. D. The Indian Political
System. Boston: Houghton Mifllin
Go, 1961. Pp. x, 277,

India is undoubtedly the pivotal
country in South Asia; where she goes
politically and economically over the
next decade, will determine in large
measure the fate of the rest of South
Asia, and probably much of the rest
of Asia as well. Iv is thus fitting that
attention be directed to this addition

BOOK REVIEWS

KIRCHHEIMER, OTTO, Political Justice: The Use of Legal Pro-
cedure for Political Ends. Princeton: Princeton University Press. 1961.
xiv & 452 pp. $8.50.

“The aim of political justice is to enlarge the area of political action
by enlisting the services of courts in behalf of political goals.” Political
recourse to the courts occurs in a variety of circumstances. It involves,
of course, a distortion of the judicial process; at the same time, the
characteristics of that process supply conditions, some advantageous,
some disadvantageous, to the pursuit of the political goal.

It would be hard to conceive a literary project more ambitious—or
more forbidding—than an analytical study of political justice. There
is needed first of all the mastery of a great mass of historical detail, for
the study must rest on empirical data; and these data must be evaluated.
‘The author must be familiar with all the legal systems involved in his
data. But these needs are only the beginning. ‘The events must be
oriented in a historical scheme; they must also be made to yield a
categorical analysis which exposes the necessities, the implications, and
the consequences of political justice. Imagination and a high degree
of creativity are required: All these conditions are met in the book.
under review. Some hundreds of cases contribute at one point or
another to the discussion; several receive extended consideration.
They simultaneously underpin and illuminate the historical and
analytical treatments.

For most of human history the legal offense of disrespect for author-
ity—the crimen laesae majestatis—has been punished as a matter of
course. During the nineteenth century, in western Europe and. the
United States, where the ideal of constitutionalism had taken root, this
“system of state protection” was “hesitant and conscience-stricken.”
Since the First World War, however, it has been restored to full vigor.
The “crime of social dissolution,” to adopt the expressive Mexican
term, has been introduced almost everywhere. The French, German,
and American codes are very elaborate; only Great Britain and some
of the Commonwealth nations have adhered to the nineteenth century
tradition.

In part social factors account for these changes. The outlook of the
nineteenth century was that of the middle class. The middle class had
made its gains through opposition to government, and still identified
jtsel£ with dissent. Moreover, the middle class inherited the optimism,

FROM SOCIAL RESEARCH
SPRING 1962

118 SOCIAL RESEARCH

the rationalism, and the attachment to certainty of the Enlightenment.
For the first time there was a public opinion hostile to political justice.
But today, in mass society, public opinion is uninformed, uncritical,
and irrational; it applauds political prosecutions with enjoyment of
the spectacle heightened by moral indignation at the victim.

Political factors also played a part. The nineteenth century saw the
apogee of the national state. ‘The tendency was toward indulgence of
internal proposals of change; traffic with a foreign enemy was “the
deadliest of all sins.” But international communications have recast
value systems in the twentieth century: economic interest groups,
fascism, and communism have in their various ways deprived the state
of its monopoly of loyalty. These very developments have produced
more violent assertions of state patriotism on the part of the popular
masses. The upshot has been the enactment of penal legislation which
identifies the ideological crime of social discontent with aid to a
foreign enemy. The imprecision of the concept of “subversion” makes
possible the conflation of the two offenses, and its vagueness makes the
word more sinister and menacing.

But these illuminating historical insights are a sideissue. The
principal concerns of the book are to establish types of political justice
and to examine the constituent elements of the political trial. The
most obvious case of political justice is the bill of attainder, the out-
lawry of a dissident group. When a ruling minority undertakes to
destroy popular organizations, there is usually no ulterior purpose; the
goal is simply repression of opposition, Execution of the political
policy collides at points with the legal order, which the government
is unwilling to scrap altogether; even the opponents of the racial laws
of South Africa have found some shelter behind the structural beams
which are necessary to support any legal system. But most contempo-
rary acts of repression—the American anti-communist legislation, and
the suppression of the Socialist Reich Party and the Communist Party
in West Germany are considered in some detail—are not intended to
protect the regime from any real threat. The American legislation
resulted from a competition in demagoguery. The Socialist Reich
Party was suppressed for no other reason than its insolent behavior.
The suppression of the Communist Party by the German Constitu-
tional Court was principally intended to buttress the foreign policy of
the government.

Other forms of political justice do not involve the proscription of
a group by name. Statutes of a more conventional sort are passed
prohibiting one or another action, speech, or opinion; or the defend-

BOOK REVIEWS 119

ant is charged with an offense drawn from the ordinary criminal law.
Civil actions, such as libel suits, may also serve political ends. A
special class of actions is the trial of a predecessor by a successor regime,
as in the Nuremberg trials, which are considered at length. In most
cases political justice aims at public opinion rather than at the
ostensible victim: the purpose is to vindicate a regime or a candidate
or a policy by establishing an image of the opponent as an enemy of
the common good.

Thus the political trial undertakes to recast history into a desired
pattern. By focusing on a single event, to which are attached both
decisiveness and culpability, it radically distorts the subject; but of
course distortion is the purpose. The political trial is a morality play.
The characters are the judge, the jury, the lawyers, informers, and the
parties. Usually the state is one of the parties; and it also supplies
the stage directions. In interpreting their roles the actors enjoy a
certain latitude. How great this is, and how it is used, depend on
many circumstances; these the author explores and illustrates,

A chapter is devoted to asylum, and another to clemency, These
arise in such widely varying situations, and discretion plays so large
a part, that systematization cannot proceed very far.

It is clear that Dr. Kirchheimer does not attribute entire objectivity
and certitude to the judicial process at its best. His approach is a
blood-chilling legal realism, Consequently he takes for granted both
the inevitability and the injustice of political trials. They have, how-
ever, this merit: they are a part of the struggle for political power,
and without them the struggle would continue in a less orderly way.

Judicial process has as its objective the solution of problems in
terms of truth and reason. When the magnet of power enters the
field, must the needle invariably swing to the new pole? Political
Justice recounts a few cases in which this did not occur, but these
must be regarded as exceptions to the rule. The dispassionate accu-
racy and the profundity of the book make the conclusion the more
depressing.

Francis D. WormuTH
University of Utah

LONGAKER, RICHARD P. The Presidency and Individual Lib-
erties. Ithaca: Cornell University Press. 1961. xii & 239 pp. $4.50.

Apprehensive of unrestrained and concentrated power, the men at
Philadelphia drew the lines of the executive office in the United States
as part of the framework of the separation-of-powers principle. Ham-

| Lan

about: income distribution data are
distorted by the expense account econ-
omy; taxation still remains largely re-
gressive and more burdensome for
low-income groups; and wealth is just
as lopsidedly distributed as income.
All this Kolko develops in satisfactory
fashion. There are some minor differ-
ences between him and Harrington:
he prefers a $8000 income cutoff to
define poverty; the latter’s is slightly
more (Leon Keyserling goes even
higher—to $40001). And it is good to
see that Kolko has dropped second-
hand-car registrations as a measure of
low consumption, an argument he of-
fered in an early Dissenr article.
Perhaps the major flaw in the over-
all analysis stems from the refusal to
acknowledge the decline of owner.
domination in American industry.

a (Vé2

Here Kolko seeks to rebut the famous
Berle-Means thesis; he insists, rather,
that ownership and control are still
identical. However, this conclusion,
after all his research, has the character
of a non-sequitur, particularly when
he concludes that those who do con-
trol our major corporations own at
most one-fifth of outstanding shares.
Thus, dispersion of stock ownership
is a fact, and attention, it would seem,
must be focused on techniques of con-
trol. It is at this point that the so.
ciology and economics of the corpora-
tion meet.

At any rate, both of these books are
welcome antidotes to the euphoria of
recent years. As Harrington so well
puts it, there is another America, and
it is high time we took a close look
at it. Brn B, SELIGMAN

Politics and the Rule of Law

PouiticaL Justice, THe Use or Lecan PRocepure ror Pout.
caL Enps, by Otto Kirchheimer. Princeton University Press,

1961, 452 pp. $8.50.

At the outset, Dr. Kirchheimer ex-
plains that his title refers not to “the
search for an ideal order” but to “the
most dubious segment of the adminis-
tration of justice’—that whose func-
tion it is to “eliminate a regime’s po-
litical foe according to some prear-
ranged rules.”

No wonder that to a man the legal
profession—including some highly re-
spected liberals such as Justice Doug-
Jas—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 po-
litical 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 mere-
ly accused the justices at times of per-
verting the absolute ideal. of Justice,
they might have applauded his elab-
orate marshalling of the evidence. But
this is not his concern, or only in-
cidentally. His ‘attack is directed
against the very notion of abstract jus-
tice, 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 sce why
liberals, too, felt challenged by Kirch-
heimer’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 deny-
ing 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 con-
demned, 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 Sac-
co-Vanzetti case: an innocent man was

299

condemned to die, and ever since, each
death sentence by an American court
threatens to become an international
political scandal. But surprisingly,
Kirchheimer does not deal with these
cases, because in his view a martyr
cannot be innocent, as Sacco and Van-
zetti were.

‘This makes it very clear where the
author parts company with the liber-
als. It is easy to rise in defense of an
innocent man, and to rise the liberals
need to believe their heroes not only
innocent but on the side of the angels.
But a radical, like Kirchheimer, will
defend his hero precisely where he is
guilty in terms established by the
regime,

At this point, however, a strange
circle closes, and by the author's admis-
sion it is a vicious one, from which he
escapes only through prayer—not a
very convincing proof of a radical at-
titude. For his approach does not per-
mit us to distinguish between a rebel
who suffers injustice for the sake of a
majority and of democracy—say, Keny-
atta—and one who tries to subvert or
suppress majority rule. With his atti-
tude Kirchheimer manages to remain
objective and serene in describing,
one after the other, the measures West
Germany takes against communists and
East Germany against the majority of
its subjects. This position probably is
hard rationality by academic standards,
but is it as radical politically as the
author wishes to be? There must be a
difference between arbitrary govern-
ment defending itself against democ-
racy and democracy defending itself
against usurpers; between, for exam-
ple, Agartz, a West German labor econ-
omist, who posed as a bona fide trade
union official but actually received
subsidies from Ulbricht—and a person
who tries to maintain contact with the

300

Protestant Church behind the Iron
Curtain.

The comparison may well show the
cause of this reviewer's misgivings.
Agartz chose to be an undercover agent
in an open society, rejecting its privi-
leges of free speech and personal se-
curity. Kirchheimer admits elsewhere
that an open, democratic society is
helpless where a true majority move-
ment tries to change the regime; but
it obviously is entitled to apply to a
conspirator the same harsh law of re-
pression that he threatens to use in
case of success, Had he wished merely
to propagate his convictions, Agartz
would not have had to violate any law.
His Protestant counterpart cannot act
—even if it were only to tell his friends
that they must obey Ulbricht’s laws—
without violating the law. He there-
fore claims to speak in the name of
Justice, and he probably would not act
unless he believed this.

The concept of Justice hence is
more than an ideology, and people
who think they know “what is just”
are not the victims of “a necessary de-

MOONSTRUCK

“Dr, Edward Teller told Congress today
that the United States must, for its own
security, gain control of the moon. .. .

“He said the country that establishes a
working base there could control near-by
space, and would be able to ‘know what
was going on everywhere on earth,’

“We need the moon for our own
safety,’ he told a House Science and As-
tronautical subcommittee.” — From the
N. Y. Times, March 28,

YEAH, DO THAT

“BATAVIA, N, Y.-(UP)—Larry H.
Merit, a trucker of Batavia, urged bis
friends recently to follow his example
and build fallout shelters ‘so when I
come up after it’s over, I can have a
drink of beer with my friends,’ ”—N. Y.
Times, Nov. 16.

lusion in an antagonistic society.” Peo-
ple who fight for “Justice” know ex-
actly what they mean, and they meas-
ure the justice of their regime by
standards derived from ideas which
have a content, Justice itself is a con-
tent to be fought for. In denying this,
Kirchheimer has deliberately muffled
the impact of an otherwise moving
presentation. The harsh realities
which, in the framework of his theory,
stand out even more harshly, cannot
fail to arouse the citizens to defend
that justice which he says does not ex-
ist. And, remiembering the dedication
“to the past, present and future vic-
tims of political justice,” we must sus-
pect that while Dr. Kirchheimer’s
scholarly mind is debunking the aca-
demic ideology of “justice,” his heart
believes in the reality of injustice.

But Dr. Kirchheimer has forbidden
himself to wax indignant. The litera-
ture which exists is either so highly
principled that it never comes down
to the consideration of specific issues,
or so narrowly operational that it re-
mains unaware of any issues. Kirch-
heimer has done something which to
our knowledge has never been tried
before. He has placed the operations
of political justice into a precise so-
ciological context and he has reduced
the abstract principles to concrete po-
litical meanings. He reveals the con-
flict between the abstract principles
which any code of law of necessity
must pretend to follow, and the indi-
vidual value system of this judge, that
defendant or the present author. Since
this conflict is inherent in any judicial
system, the book uncoyers the sources
of genuine tragedy, particularly in the
moving passages where the author dis-
cusses the role of the judge.

Place this book by the side of God-
win and Thoreau,

Henry PAcuTer

598 Tue Journat or Poxrrics [Vou 24

personal or political freedom: not personal, since man has freedom
only as a relation to other men; not political, since the political
relation is just another social relation. Freedom is not the contrary
of unfreedom, as a man is not unfree when he is forced to do
something, yet not free in the doing of it, to refrain from doing
it. Power and freedom can combine so that a man of inferior power
is free on sufferance, though not free of sufferance, whereas his
superior is free to dominate him,

Mr. Oppenheim discusses other meanings of freedom, descriptive
and valuational; of the former, he repels the opinion that freedom
is freedom of choice, because we are always free to do or to try
the impossible. Freedom has a character so irremediably specific
that we can in general speak only of a single relation of freedom,
never of a free society made of such relations; freedom has dimen-
sions but is not a whole. In his last chapter, Mr. Oppenheim explains
the value of the scientific conception of freedom for the normative
problems of freedom, which is nothing less than to make intelligent
discussion of them possible for the first time.

Mr. Oppenheim values fruitful over colorful language; he has
produced clear language. His book contains some alphabetical ab-
breviations, and a few neologisms (“counterintuitive’ is a happy
conceit), but it is free of jargon, and abounds in examples. In this
effect, it is a contribution not only to behaviorism but to the con-
troversy about behaviorism.

Harvey C, Mansrietp, Jr.
University of California, Berkeley.

Political Justice. By Orro Kircuuermer. (Princeton, New Jer-
sery: Princeton University Press, 1961. Pp, vii, 452. $8.50)

The use of legal procedure for political ends is most frequently
associated with strongly authoritarian or totalitarian systems of
government. This book is an important contribution to the study of
courts in the political process, because it examines the role of the
judiciary to gain certain political ends under constitutional systems.
Professor Kirchheimer’s systematic analysis of trials for various
political purposes under constitutional and totalitarian systems
stresses the problems which each system encounters in achieving
the aims of the. trial, the various forms of trials, the “dramatis

1962] Book Reviews 599

personae” participating in the political play brought into the court-
room, and pursues also the nature of clemency and asylum.

Assuming that “every political regime has its foes or in due
time creates them,” the author points out that the ensuing power
struggles between the regime and its foes and among competitors
for political power will take a variety of forms, The courts, which
through show trials, legalization of purges and staged public
confessions of political opponents of a system, have served as terror
and propaganda instruments of totalitarian systems, do have an im-
portant, albeit somewhat different, extra-legal function also in con-
stitutional systems.

As constitutional governments in modern times grew in scope
and their political power came to rest on the broader bases of un-
limited suffrage and extensive public opinion, conflicts arose within
democracies which engulfed the judiciary along with the traditionally
“political” parts of government, The author summarizes the most
urgent occasions for court action in connection with repressive pro-
grams in contemporary non-totalitarian society in four categories:
(a) formal restriction of freedom which becomes necessary for
successful police and security operations; (b) control measures which
have passed the dividing line between informal restraints and actual
coercion and result in the victim’s demand for formal adjudication;
(c) the government in question has decided on either total repression
of its foes or on wearing them down by continuous judicial pro-
ceedings against them which limit their political availability; (d)
carefully chosen segments of deviant political activity are submitted
to court scrutiny, not so much for repressive effects as for dramatiz-
ing the struggle with the enemy and gaining public support.

The problems which beset a constitutional system if it wants to
take either one or all of the above steps involving the judiciary are
complex, and Professor Kirchheimer points up these complexities by
a thorough analysis of the Smith Act trials in the United States
and the procedures involved in outlawing the Communist Party
in the Federal Republic of Germany. He shows the greater dilemma
confronting the United States judiciary, because constitutions of
the “older liberal type” make the substantive determination of the
sphere of permissible revolutionary action and propaganda quite
problematic. Under the American Constitution the Supreme Court
was forced to make specific acts on the part of the accused the
basis of judgment. According to the rule of law it is not enough

600 Tur Journat or Poxrrics [Vor. 24

to know that the group in question prepares a state of psychological
readiness for future political action, and demand total repression,
The position, however, calls for a constant alertness, frequent shift-
ing of positions and relocation of battle lines between the govern-
mental organization (and its instrument—the judiciary) and the
hostile group.

The Bonn Basic Law, on the other hand, an example of a more
recent constitution, drawn up as reaction against totalitarianism,
clearly makes repression of antidemocratic political movements part
of the rule of law. This enables the judiciary to consider a suspected
Broup’s perennial readiness to take action which will ultimately
result in the destruction of the constitutional system as a sound
basis for legal and complete repression,

It is this conflict between legal repression of political organi-
zation and constitutional systems based upon competing political
parties and the writer’s penetrating analysis of a troubling subject
matter which make the book an important source for any scholar
interested in political justice. The section on political trials under
totalitarian systems pointing out difficulties even for those regimes
to explain judicial involvement in political matters, and the mas-
sive documentation with sources usually not gathered within one
volume, add to the significance of this book. The only question of
“political justice” which to this reviewer could have been pursued.
in greater detail is that of impeachment. However, the scope of the
book is so broad that not all aspects should Possibly be treated
in equal depth.

Exe Frank
Florida State University

The Moulding of Communists (The Training of the Communist
Cadre), By Franx S. Meyer. (New York: Harcourt, Brace
and Company, 1961. Pp. 214. incl. index. $5.00.)

This is one of a series of studies of Communist influence in
American life, supported by the Fund for the Republic under the
general editorship of Clinton Rossiter. It is easily the best of the
series, because it is the most authoritative. As a result, the reader
is able to grasp the profoundly different character of Communist
consciousness. As Meyer puts it: “For the Communist is different

BOOK REVIEWS

responsible for the emergence of conflict sub-
cultures. Cavan is also prone to make statements
that are open to, considerable doubty such as
“most juvenile offenders either smoke gnarihuana
or use heroin.” pee its limitationg, the book,
if judiciously interpreted, will seryé as an ef-
fective teaching device. F
; Prrer G, GARABEDIAN
Washington State University }

Changing Patterns of Military Politics. Edited
by Samurt P, Hunznerdn. Preface by
Herz Evtav. Intetnation@l Yearbook of
Political Behavior Researgh, Vol. 3. New
York: Free Press of Gléncoe, 1962, 272
pp. $7.50. 2

In the current era o!
power relations, the mili
assumed a top-level inst{titional posture while
the military profession, Hby force of circum-
stances, is increasingly assuming political roles.
Samuel P, Huntington, thi editor of the present
volume, is probably best/ known for his author-
ship of the 1957 book, (The Soldier and the
State: The Theory as olitics of Civil-Mili-
tary Relations. i

Huntington does “ offer the present book

infernational political
establishment has

as a sequel to this eatlier volume. It is, rather,
a collection of essayg with}an introduction and
concluding overview:by Huntington. In the in-
troduction, Huntit
Military Politics,”
terns of Violence i
low the interestin;
thors: Harold D.
Hypothesis Toda:
Comparative Theory of Military and Political
Types”; Laurenge I. Radway, “Military Be-
havior in lg Organization: NATO’S

Defense College”; Raoul Gijradet, “Civil and
Military Power ‘in the Fourth; Republic”; Philip
Abrams, “Demécracy, Technology, and the Re-
tired British Officer”; and Martha Derthick,
“Militia Lobby in the Missile Age: The Politics
of the Natiofal Guard.” In his introduction,
Huntington dalls this collection of essays a
symposium of papers which have neither com-
mon subject) nor common method. He does,
however, suggest that they will serve a com-
mon purposé in opening the door to fruitful
research in what he calls “the new military
politics of the 1960's.”

To this reviewer the most interesting of the
essays were those by Lasswell and by Derthick,
‘These two essays are particularly current and
deal with facets of the American political
power structure under constant discussion in
the mass media of communication, The preface

723

to the volume, by Heinz Eulau, is also well
worth the yeader’s /attention.

Huntingtoh, has/done an excellent editorial
job despite thé fgct that the essays are almost
to each other in frame of
reference and £oh{ent. Here is a volume that
should certainfy attract the attention, not only
of social ay’ political scientists, but also of
other individuals more ‘directly concerned with
national political and foreign policy making,

Cnartes H, Coates

University of Maryland

al

Political Justice: The Use of Legal Procedure
for Political Ends. By Orto KrrcHHEIMER,
Princeton, N.J.: Princeton University Press,
1961, ix, 452 pp., $8.50.

Students of the sociology of law will welcome
this volume. A central question in this field,
as put forth by Weber, is the manner in which
authority is made legitimate. Political Justice
grows out of Tocqueville’s shrewd observation
that “It is a strange thing what authority the
opinion of mankind generally grants to the
intervention of courts, It clings even to the
mere appearance of justice long after the sub-
stance has evaporated; it lends bodily form
to the shadow of the law.” Hence, the subject
matter of this book is the manipulation of the
symbols of justice to achieve the ends of politi-
cal goals,

In scholarly and learned fashion, Kirchheimer
details a number of political trials as well as
broader policies for utilizing legal machinery
to put down dissident and opposing groups,
He also examines the pressures structured into
the legal system that fall upon judge, prosecu-
tor, defendant, and lawyer in the political trial,
and the limits of choice and opportunity open
to these dramatis personae, All in all, it is a
commendable book.

I have two reservations—one procedural and
one substantive,

The book is not as systematic as it ought
to have been. There is an interesting conceptual
framework in the first chapter (based largely
upon the ideas of Weber who, incidentally, is
not cited), but the materials which follow rarely
refer back to it explicitly. Consequently, one
sometimes finds oneself lost in a maze of detail
without being able to discern a conceptual
referent,

The substantive criticism is as follows: Al-
though the author sets out, as one of his cate-
gories of political trial, the “derivative...
where the weapons of defamation, perjury, and
contempt are manipulated in an effort to bring
disrepute upon a political foe,” he fails to cite

724

Riesman’s brilliant article (42 Columbia Law
Review 1085) on the use of libel and libel law
as a major political weapon. Thus, the Nazis
turned the law of defamation on its head by
publicly calling their Gentile enemies Jews.
‘These opponents were then faced with an im-
possible dilemma: Either they sued for defa-
mation, in which case they would be forced
publicly to claim that “Jew” was a term of
opprobrium; or if they did not sue, their re-

BOOK

Cities and Churches: Readings on the Urban
Church, Edited by, Roserr Ler, Foreword by
Joun C, Bennerr..Philadelphia, Pa.: West-
minster Press, 1962. 966 pp. $3.50.

For over a generation Protestant churchmen
have been studying the impact of urbanization
on their historically rural apd small-town re-
ligious tradition, The present:volume is a col-
lection of essays dealing with the problems that
urbanism has posed for the churches and the
ways in which these. problems have been or
might be met. Aside from three classic readings
on the sociology of the city by Wirth, Simmel,
and Park and a few empirical reports by con-
temporary sociologists, all the selections ar
by churchmen writing from a specifically 1
ligious perspective. Most of these selecti vhs
manifest a concern with developing an effec dive
Christian witness and sense of community within
the urban environment, and especially within
the “inner-city” areas where old-line,/ Protes-
tantism has never been very successful. This
is a well-selected group of essays rf is likely

to appeal more to Protestant clergy and semi-
narians than to academic sociologjsts.
BenToN Jounson
University of Oregon é
3 A Sourcebook.
Edited by Rosert R, Bett, Dorsey Series in
Anthropology and Sociology, Homewood, IIL:
Dorsey Press, 1962. viiif 368 pp. $6.50.
This is a compilation,’of twenty-six papers
organized in five parts. The editor provides
an organizing framework for each part in an
introductory statement, The five titles give
some indication of the content: Social Change
and Education; Non-formal Learning Situa-
tions; Social Class; The School as a Social Sys-
tem; and The Teacher. All but a few of the
articles are by sociologists and all contribute
to a sociological analysis of the educational
institutions.

The Sociology of Education:

AMERICAN SOCIOLOGICAL REVIEW

ligious identity might be in doubt, an unhappy
situation in the Germany of the Thirties.
Whatever criticisms the book may merit, it
breaks some new ground in a significant area,
namely, the symbolic import of the semblance
of a rule of law, even, and indeed especially,
when substantive goals are being interfered with
by formal procedure, :
Jerome H. Sxonnick
University of California, Berkeley f

NOTES

The editor chose to include a relatively small
number of complete selections rather than
portions of a larger number. This limits the
range of selectlons and may reduce its useful-
ness to somg’ potential users. Sociologists who
have followéd the sociology of education litera-
ture will Be acquainted with nearly all the se-
lections,/Others who are looking for a source-
book if the field will find significant sociology
of eqtication material in this volume. The editor
we no attempt to provide either a complete

ey of the field or selections bearing on all
phases of the literature. Rather, the choice of
articles is based on his “own reading knowledge
and experience in teaching a course in the soci-
ology of education.”

Some may use this volume as a text, but the
limited scope and inadequate coverage of many
areas would necessitate extensive supplementa-
tion. It will be useful as a supplement to texts
in the field, but some will not find significant
contributions they would have selected.

Wrrsur BRooKover

Michigan State University

Readings in Sociology: Sources and Comment.
Edited, by Joun F. Cuper and Peccy B.
Harrorr, New York: Appelton-Century-
Crofts, 1962. xiii, 337 pp, $1.95, paper,
The reason. given by the authors for adding

this book of xeadings to the growing list of

such publications is the need for a “book of
readings which would supplement any of the
currently used textbooks and still hold total
cost to a reasonable level.” These goals are
met reasonably well..The book, in addition to
being relatively inexpensive and conveniently
compact, does contain a large number of read-
ings, forty-eight in all, The selections, them-
selves, vary widely in content; there is some-
thing for everyone, What emphasis is found
in these selections would be on the kind of
insights and challenging ideas which might
appeal mainly to those who, along with Robert

No. 2] REVIEWS 267

cated classes in the half-century preceding the advent of Nazism
was the way they allowed themselves to be seduced by the vacu-
ous prophets of a spurious Deutschtum. Even refined, cosmo-
politan minds like that of the early Thomas Mann succumbed
to their blandishments. What Lagarde and Langbehn and
Moeller sowed, Hitler finally harvested. What had started as
innocent mystifications ended in political terror. It is in tracing
this connection that Mr. Stern is at his best, and it is here that
his book will have its widest appeal. He does not hold the Ger-
manic ideologists responsible for Nazism—he is too discriminat-
ing for that. Rather, he demonstrates convincingly that Hitler
picked from them only what fitted his own purposes and even-
tually repudiated the author of The Third Reich entirely. But
in the final question Mr. Stern leaves with his readers the verdict
is unmistakable: “Can one abjure reason, glorify force, prophesy
the age of the imperial dictator, . . . without preparing the tri-
umph of irresponsibility?” (p. 298).
H. Sruart Hucues
Harvarp UNtverstry

Political Justice: The Use of Legal Procedure for Political
Ends. By Orro Kircuuemer. Princeton, Princeton Univer-
sity Press, 1961.—xiv, 452 pp. $8.50.

The literature of the law has frequently dealt with the use of
the judicial process in the struggle to maintain or achieve politi-
cal power, But it has been largely concerned with a description
of events or a technical analysis of the legal doctrines involved.
There has been little or no effort to give a theoretical cast to this
mass of raw material. We have had no comprehensive analysis
of the role of the judicial institution when employed directly
“to bolster or create new power positions.” Dr. Kirchheimer’s
book, which essays this task, is a notable contribution.

It makes, in fact, several contributions. On a more abstract
level, it is a masterly analysis of the operation of the judicial
process when used for political purposes—the ends it serves, the
circumstances under which it is invoked, the manner in which
it reflects and responds to political pressures. Dr. Kirchheimer
classifies the political trial according to three main categories:
the trial of a common crime committed for political purposes, in
which the proceeding is conducted with a view to the political
benefits accruing from a successful prosecution; the “classic polit-
ical trial,” in which the government attempts to apply legal
sanctions to the political activity of its foes; and the “derivative
trial,” where the issue is framed in the form of a suit for defama-

tion or a prosecution for perjury or contempt. He dance
7 ae

268 POLITICAL SCIENCE QUARTERLY — [Vot. LXXVII

examples of each type of proceeding and appraises the techniques
and fesults under varying kinds of political structure. The func-
tions of the political trial from the government’s viewpoint are
analyzed and the efforts of modern regimes to use the judicial
process, not only for legitimizing the application of sanctions
against a political enemy, but for manipulating public opinion
and rallying mass support for the regime, are discussed. Simi-
larly, the risks to the government and the opportunity for the de-
fense to use the judicial process for its own ends are considered.
In two of his best chapters Dr. Kirchheimer deals. with the roles
of the various participants in the political trial. Here he treats
with great insight the function of the judge, the jury, the police,
the prosecutor, the defendant, the defendant's lawyer and the
witnesses, and shows how they play their respective parts. The
analysis is instructive and provocative throughout.

Political Justice makes an equally important contribution on
a somewhat different level. It is an excellent treatise on the
maintenance of political liberty in a modern mass society
through methods of constitutionalism. One chapter is devoted
to a historical survey of the area of protection allowed by various
regimes at different times to political opposition. Another, also
one of the best, deals with legal repression of hostile political
organizations, including the basic problem of the treatment of
antidemocratic groups in a democratic society. There is an in-
sightful discussion of the function of an independent judiciary in
a constitutional order, and an intriguing chapter on the contrast-
ing role of a party-directed judiciary in a totalitarian state as ex-
emplified by the judicial institutions of East Germany. At vari-
ous points throughout the book Dr. Kirchheimer throws light on
a much neglected aspect of the judicial process in a constitu-
tional state—the dynamics of political repression. There are per-
ceptive discussions of the use.of informers; the significance of in-
sisting upon naming collaborators in political trials; the function
of the security police; the treatment of defectors—including
American insistence upon repentance; and public attitudes to-
ward political deviants. Very little is available today that il-
luminates more sharply the problems of a modern democratic
society seeking order, liberty and change under a rule of law.

Added to this, or related to it, the book contains informative
chapters upon the trial of ousted leaders by a successor regime,
dealing principally with the Nuremberg trials, on the practice of
political asylum, and on the granting of clemency in political
cases.

Dr. Kirchheimer’s approach is a wide-ranging one. He con-
siders political justice in many different periods of history, under
a great variety of regimes, as illustrated by numerous cases. His

No, 2] REVIEWS 269

scholarship is impressive. So are his political and psychological
insights, and the depth of his understanding. He writes with
cosmic objectivity but with a feeling for the human beings in-
volved—both the judges and the judged (to whom his book is
dedicated). Unfortunately, the style is obscure at times, at least
for this reviewer, but as one proceeds it gains in clarity and elo-
quence, ‘There is certainly room for disagreement with some of
Dr. Kirchheimer’s interpretations and with the treatment of some
details, But his study is always enlightening and stimulating—
all in all a brilliant performance.

Tuomas I, Emerson
Yate Law Scuoor

Who Governs? Democracy and Power in an American City.
By Roser A. Daut. New Haven, Yale University Press, 1961.
—xii, 355 pp. $7.50.

What John Locke did to Filmer, Professor Dahl has done for
Floyd Hunter. Or has he? Anyone seriously concerned with
current systematic political theory or with urban politics should
read Who Governs? and answer this question for himself. Resi-
dents of New Haven, the city which serves as Dahl’s convenient
test case, and followers of the burgeoning literature of “com-
munity power” have doubtlessly already done so.

Until recently local government and politics were receiving
relatively little serious academic attention. From 1933 on, other
matters seemed more pressing. But in 1953, Floyd Hunter's
controversial Community Power Structure, based on his analysis
of Atlanta, made a very large splash in the academic “backwater”
of local politics. By the end of the decade everyone from the
Ford Foundation to John Kenneth Galbraith was hailing the im-
portance of local government, the urgency of “metropolitan
problems,” and. the difficulty of determining who—if anyone—
governs our cities.

Hunter may well be the most influential social worker since
Harry Hopkins. His book provided both a simple (even sim-
plistic) methodology—“reputational analysis” to identify “com-
munity influentials’—and a provocative thesis: local politics is
largely controlled, directly or indirectly, by the dominant eco-
nomic interests. Many sociologists hailed Hunter’s method and
accepted his findings, but most political scientists were dubious.
In a series of brilliant articles Dahl launched a powerful critique
of both Hunter's method and his conclusions, and provided some
exciting glimpses of his own study of New Haven.

Who Governs? is no mere collection of Dahl's previous papers,
but a major new work, The empirical study of New Haven is

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POLITICAL “justice: “The Use of

Legal ‘Procedure -for Political ‘Ends. "

.-By Otte, ° Kirchheimer.
Princeton, N. Ju:
sity Press. $6.50.

y By EDMOND CAHN >
|S the Hichmann story moves
to: its close, this general

452° pp.

study of political prosecutions is .

particularly timely, All the in-
eluctable questions ‘press ‘for-
ward in it. When, for.example,

does: history- justify a Govern-~

Princeton Univer- -

‘the very ‘essence of both clem-
“ency and “justice.” ame
I wish the author had lapeed “.
this: way “more- often, for his
incidental -remarks about poli-
ties,~courts. and lawyers are
-always incisive. Of. course,“ ob-_
jectivity.. is an indispensable.

: virtue when-the material under.”
-analysis can be subdued to a

scientific’ processing. - But this
material plainly could not. -

~——In‘seientifie terms, what can —

ment’s employing the judicial_ one hope to demonstrate by nar-

process for purposes like the
Stalin purges of the Nineteen
Thirties, the: Nuremberg - war-
guilt trials, or the American
Smith-Act cases? What may be ~-
gained in the process, what lost?
Does experience indicate-better
ways-to deal with political of-
‘ fenders and adversaries? In this ~
* scholarly “ work,~ history digs “
déep into its grab-bag, gropes
from corner to corner, and-pulls
out—not one but. a dozen diverse.
answers. ">
Tales of - state trials are.
_naturally dramatic, antno one:
could bave paraded them with
greater erudition ‘or industry.
than Otto Kirchheimer, Profes-
sor of Political Science at ‘Co-*
| fumbia, has here. Whenever he
recounts a particular case—the:~
Goebel | assassination in Ken- ,
tueky (1900), the Caillaux mur-
der trial in France (1920), the”
recent Stepinac and Hiss Cases,
or the strange Swiss prosecution
of Prof. . André po for

from a - European’ ‘educational’ -
background, he not only include
several prosecutions that are.”
unfamiliar to Americans, he
“also portrays familiar prosecu- ~
tions in an unfamiliar perspec

tive.
. Throughout, Mr.” Kirenheim-
er’s attitude toward the repres-.

sions, : political_ injustices and °
personal tragedies he is narrat-.
Jing remains. cool, distant,.disen-
- gaged: Others’ may take’ sides:,
and‘ grow indignant; he ‘merely.
watches and describes, the per-

fect neutral. Yét' just. once he’
_ forgets his reserve long enough *
“ tacondemn (quite rightly) Pres-"
ident Eisenhower's implied offer:
to spare the’ lives’ of Julius ‘and
Ethel Rosenberg’ if they would
“confess their guilt.’ “Using the”
expectation of clemency, as jure
for a‘ poSt-conviction confession ”
‘that. would .shore | up"a “prob-
Tematie’; judgment, . contradicts *
= Mr. Cahn, Professor. f° Law"
at .New York University, is au-
thor of :“The - Predicament sof
Democratic Man.” Zi

4

 laws* and. specific prosecutions
- are only ways of implementing

rating and classifying a variety

of” politically motivated trials
held in’a variety of times, places, ~
cultures and legal orders? Even

-. if the instances you collect hap-
pen by some miracle to point in ~
the same direction, you still
have no means of proving that
there are no other cases that
point:just the opposite way..

| A single example will ilus- ~
trate the danger: I did not find”,
even*a passing reference to the
trial of Aaron Burr, probably~
_the “most eélebrated political
“prosecution in American history,
which brought President Jeffer-
-Son into open collision with
Chief Justice ‘Marshall, put a
former Vice President (and
_very~near President) in the
“prisoner's. dock’. on a. treason >
charge, and engendered ‘princi- :
ples of law that’ bulwark our -
civil liberties to'this day. Carifig ©
nothing for scientific studies or
systems, Burr won an 5 aequittal.

HEN again, what ts the ert

ers? How: should one’ Classify,
Say, the trial of Queen Caroline
of England when George IV ac-
cused her of adultery? Was the ©
incomé-tax - prosecution of - Al

“ Capone “political” or not?.Some  :, 2
would ‘say that since general” - :

the dominant forces and values
of the society, all are in essence
political. Among-the many other.
things law is,-it is certainly a)
‘proliferation of high’ polities. - ~~
‘The choosing: of one case rather
than: another as “political” must-~. ">
©. always bé a-matter of personal
judgment, always. debatable.
In his final chapters, after a. ,
valuable , study.:° executive —. 5
clemency,” political, asylum and
amnesty, Mr. Kirchheimer takes” --
a farewell glance at the unhappy.
judge who is, required“to con-
duct, and, the wretched accused
‘who ‘is ‘required‘te undergo,.a
political trial. He-looks at them
“and _still feels cool. He reflects”
that in the course of time Clio, f
muse of history, may show that | '
both of them were,fools, andhe ==
suggests we pray for them. I. ¢
-think we must do more. 1

“desire ‘to use-the full: account of the extermina
- Jews, uniquely provided in “an Eichmann trial, as ‘the ‘focal
point for Israei’s self-assertion before continuing threats to its.”
lexistence, there has ‘been a never-ending effort. to enlarge the...

[hlews York

Times tte fez

”
ties through the use of various able—judged by due process

Tegal devices, ari account that , ‘
covers ‘a wide range both itl _,Standards—than I think the : : »

‘Europe and in’ this country. book makes out, There is a

Other chapters ‘concern them- long list of unpopular .peo-

"Otto -Kirchheimer. Prince: vce with* Asylum ane Dare ple’ whose convictions have:
xt been set aside in America

+ ton. 452 pp. $8.5 But the bulk of the book
y because they were not accord-
ed due' process, Moreover,

2 PROF: KIRCHHEIMER of _alacusies Jawygrs, prosecutors,
n i .- judges’ an ries ant cir ‘ h ?

Jumbia has written an ab: Se ianes: in’ trials’ that. the issues in cakes like Dennis
at ‘have political overtones or are not understood by lining,
‘\politi¢al “power . throughout. teal’ objectiv up: judges as pro-free society
Weitern,: Rasdl ¢ South political’ objectives. SE eee ce and. antLCom
© Western, Rusélah and South . ‘The overall picture is’ one « ; : ane ane om

-“Atrican. > history\to.' ctush;~ of officialdom,” "ss: well xg TUnISE on. the other or, ae
penalize, frustrate; diséredit juries, marching to the tune... sa ae on the

Tiquidate the opposition. -~ that. public opiaibas or the” Oe, hand and | only-e-itle

io Obrieltion. raayl Bed: angodsof the day calle, Chapter,” 2™erComurapist on the oon,
“yminority'ox, in South Africa, and verse are elted in some; Most, Judges on. the necke

t majority. ‘The device ‘may detail--both. in prosecutions, 1m the last 20 years, including
bé a bill of attainder.(curi- under _Communist."\regimes’ the late Learned Hand, were:
, ously; not, discussed’. in, the. and in’ prosecutions in, the so- passionately pro-free society;
F ook in spite of United States called democratic nations. and ‘would. never.) debase
ovett, 328 U.S. 303), gov-' ° One gets-an impression of themselves‘ by convicting a~
* ethment decrees, ‘laws of out, judges, consciously or, “other- man because the press’ or "
lawry, and banishment, a -se-: wise, taking Gallup, Polls on: galleries or the powers-that
“1, ries, of legislative enactments * public: opinion’ and’ huriying be wanted or demanded it.
| that’ constitute harassment, 4 ynpopular people to prison or The difference between

‘specially constituted court (a electric chairs.- Qne gets an majority:\and “minority was

_ LJa Stalin) to’ try an opponent, ; 3 more subtle; and the. differ-
yo Gee or jndiclal ection ence was not boin out’ of

‘may be fenced’ off so.ag to be ake a i political ' trials: ¢ i
pei emt on ee 2 exter sears ncpenl One choot, of witch
S: The trlals may be.for-mur-Dotitical or politically-tinged. Learned Hand was a spokes:
der, espionage,; conspiracy, cases. fi So Hi ea man, thinks that the com-
treason, sedition,.| libel” or..." i gia mand that’ “Congress, shall
what not. Examples of each’: “THE CONCLUSION, TE make no law abridging free:
_are given, starting with the think, is dependent. in’ part; dom of speech” is merely a.
‘Powers « trial;'in Kentucky on. the materials selected.) “counsel of moderation” $233 : Me :
last century, a collateral as-’ The ones analyzed by this . which means the First Amend- en a . cy ov

‘pect is seen in Taylor- v. unusually gifted author. make’ ment should be read:.“Con- ma RES sf vet ge Slag Gy
peck e ae Aone are BS theory plausible, -.At least gress may: make some Taws The, relationship between politics and justice exams.
tae wilt decries 6. they phon ensomed of mem eelding teeta of STS iad te tho boo ree ee and” eel
French, German, Italian, Is- and arguably praludleed ‘Amendment more literally, been the. concern not only ‘of jurists and political
Sea aad tho: poe decisions on the other.: maintaining that it means scientists but of artists as well. One such graphic com.
“conspicuous on the Ameri: wet the condenthation of what it says. This is'a dif- mentary, reproduced above, is Ben Shahn's: painting.
judges’ cannot be substan- ference forged long before the “The Passion of’ Sacco and Vanzetti.” It appears as

‘ean scene, are. the various 4; aK ‘ i
\ eines : S tiated, I think, by the por- Communist trials appeared. og 2 : ‘
flats thet ae rie “trayal of a few judges who So. the entire library of 4am illustration, of the social school of modern: paints
co indirectly —iike the Al have played to the galleries, American casés' does not fit ing in AMERICAN ART OF OUR CENTURY. by
ger Hiss case—implicaie the Jt is true that the Russians as neatly into the theme of yoy Goodrich and John I. H. Baur; director and as- ,
Communist Party, : in a sense face, the problem the book’as the author makes « A di New York's Whiu Mh

’ directly by creating special out. Yet the survey brings sociate director of orks tiney - Museum

courts whose duty it is to to light much Eurdpean . (Praeger, $15). The book combines a discerning, dis«

i it “RIAL such as the Nurem- A

fs -yberg trial (trial by- fiat,’the convict before’ the sun sets, material, particularly Ger-: i the mu aspects’ of the» ndtional genius’ :

a author. calls them) are also. while we implicate the regular’, man, that: will inform and. cussion a . ‘bas ee : eo wad 166 ae a )

.discussed, One chapter.is de, tribunals. eS ee fascinate. students Zor years With 81, illustrative color bigetea aa ac ant
‘oted to the’ means ‘used: to’. But, the recotd' of Ameri on end. ~~ e Me , white reproductions. Met Saw oe Oh

Se 1962 Ctiatnl Leccnee

Quartile,
28 — GALLEY RACK — €

21—300-M—BOOK REVIEWS Pol. Sci.

Political Justice: The Use of Legal Procedure for Political
Ends. By Orro KircHHEmeER. Princeton, Princeton Univer-
sity Press, 1961.—xiv, 452 pp. $8.50.

The literature of the law has frequently dealt with the use of
the judicial process in the struggle to maintain or achieve politi:
cal power. But it has been largely concerned with a description
of events or a technical analysis of the legal doctrines involved.
‘There has been little or no effort to give a theoretical cast to this
mass of raw material. We have had no comprehensive analysis
of the role of the judicial institution when employed directly
“to bolster or create new power positions.” Dr. Kirchheimer’s
book, which essays this task, is a notable contribution.

It makes, in fact, several contributions. On a more abstract
level, it is a masterly analysis of the operation of the judicial
‘process when used for political purposes—the ends it serves, the
circumstances under which it is invoked, the manner in which
it reflects and responds to political pressures. Dr. Kirchheimer
classifies the political trial according to three main categories:
the trial of a common crime committed for political purposes, in
which the proceeding is conducted with a view to the political
benefits accruing from a successful prosecution; the “classic polit:
ical trial,” im which the government attempts to apply legal
sanctions to the political activity of its foes; and the “derivative
trial,” where the issue is framed in the form of a suit for defama-
tion or a prosecution for perjury or contempt. He gives specific
examples of each type of proceeding and appraises the techniques
and results under varying kinds of political structure. The fune-
tions of the political trial from the government's viewpoint are
analyzed and the efforts of modern regimes to use the judicial
process, not only for legitimizing the application of sanctions
against a political enemy, but for manipulating public opinion
and rallying mass support for the regime, are discussed. Simi-
larly, the risks to the government and the opportunity for the de-
fense to use the judicial process for its own ends are considered.
In two of his best chapters Dr. Kirchheimer deals with the roles
of the various participants in the political trial. Here he treats
with great insight the function of the judge, the jury, the police,
the prosecutor, the defendant; the defendant’s lawyer and the
witnesses, and shows how they play their-respective parts. The
analysis is instructive and provocative throughout.

Political Justice makes an equally important contribution on
a somewhat different level. It is an excellent treatise on the
maintenance of political liberty in a modern mass society
through methods of constitutionalism. One chapter is devoted
to a historical survey of the area of protection allowed by various
regimes at different times to political opposition. Another, also
one of the best, deals with legal repression of hostile political

organizations, including the basic problem of the treatment of *

anti-democratic groups in a democratic society. There is an in-
sightful discussion of the function of an independent judiciary in
a constitutional order, and an intriguing chapter on the contrast-
ing role of a party-directed judiciary in a totalitarian state as ex-
emplified by the judicial institutions of East Germany. At vari-
ous points throughout the book Dr. Kirchheimer throws light on
a much neglected aspect of the judicial process in a constitu-
tional state—the dynamics of political repression. “There are per-
ceptive discussions of the use of informers; the significance of in-
sisting upon naming collaborators in political trials; the function
of the security police; the treatment of defectors—including
American insistence upon repentance; and public attitudes to-
ward political deviants. Very little is available today that il-
Iuminates more sharply the problems of. a modern democratic
society seeking order, liberty and change under a rule of law.

Added to this, or related to it, the book contains informative
chapters upon the trial of ousted leaders by a successor regime,
dealing principally with the Nuremberg ‘trials, on the practice of
political asylum, and on the granting of clemency in political
cases.

Dr. Kirchheimer’s approach is a wide-ranging one. He con-
siders political justice in many different periods of history, under
a great variety of regimes, as illustrated by numerous cases. His
scholarship is impressive. So are his political and psychological
insights, and the depth of his understanding. He writes with
cosmic objectivity but with a feeling for the human beings in-
volved—both the judges and the judged (to whom his book is
dedicated), Unfortunately, the style is obsure at times, at least
for this reviewer, but as one proceeds it gains in clarity and elo-
quence. There is certainly room for disagreement with some of
Dr. Kirchheimer’s interpretations and with the treatment of some
details. But his study is always enlightening and stimulating—
all in all a brilliant performance.

‘Tuomas I: Emerson
‘Yate Law Scuoot,

7S aie

60 . READING GUIDE

been stranded on cloud nine; here is a strongly
supported plea for a new ethic, devoid of sug-
gestive workable recourses. In the event of a
“new ethic,” the ugly concept of war coupled
with future “irreversible decisions” threatens to
eliminate any ethic. A successful “new ethic”
is highly questionable as poignantly illustrated
by the rerharks of Secretary Stimson recalling his
five years 4s Secretary of War:

. I sek too many stert/ and heart-rendering
decisions be willing to’ pretend that war is
anything else than what At is. The face of war
is the face of death; deAth is an inevitable part
of every ordei\that a wartime leader gives. The
decision to use\the ayomie bomb was a decision
that brought déa fo over a hundred thousand
Japanese. No eXpldnation can change that fact
and I do not wis to gloss it over. But this
deliberate, premeditated destruction was our least
abhorrent choice/ ‘Nhe destruction of Hiroshima
and Nagasaki yut aX end to the Japanese war.
It stopped thd fire Maids, and the strangling
blockade; it eylded the Ahastly specter of a clash
of great land armies.

The Irreversible Decision is extremely well
documented. / The credibilitk of Mr. Batchelder’s
reasoning is/superb and enables one to visualize
the need fdr his “new ethic.” He consistently
illustrates jts functioning in limited warfare and
the cold war, but not in the face of total war.

HDR.

Political Justice. OTTO KIRCHHEIMER. Prince-
he PRINCETON UNIVERSITY Press, 1961. 486
. $8.50.

ATHER than presenting an ideal order or

perfected body politic, Political Justice
deals with a many-sided problem concerning the
use of judicial institutions and devices for po-
litical purposes. Its scope suggests an inherent
difficulty in presentation if theoretical analysis
and documentation are not to be sacrificed for
the continuity and story-telling which is so often
preferred by the general reader. Utilizing a mass
of domestic and foreign source material, Dr.
Kirchheimer, professor of Political Science at
Columbia University, has chosen the social sci-
entist’s idiom and approach, while not losing all
the potentialities for a broader, popular appeal.

As a first step toward continuity, the author
has organized his study into three distinct sec-

beier 4

tions. In the first part, he deals with the his-
torical and conceptual framework of political
justice, configurations of political trials, and leg-
al repression of political organizations. Then in
the second part, the author introduces the dra-
matis personae, especially the defendant, his
lawyer and the judge. Here, also, he develops
the political integration of the judiciary, and con-
cludes with a discussion of a subspecies of poli-
tical justice—trial by fiat of a successor regime.
Finally, part three concerns the devices of asylum
and clemency as frustrating the action patterns
previously analyzed.

Within this scheme of organization, some ma-
jor themes of inquiry cut through the various
chapter divisions. Perhaps most important is
the question of separation—that is:

If a judiciary operates with a margin of toler-
ance that is set by its own interpretation of
opinion trends and political and moral require-
ments, rather than by the commands of an iden-
tified sovereign, how can it be organizationally
and intellectually equipped to face such contin-
gencies?

The author concludes that, effectiveness of sub-
mitting political conflicts to the courts cannot be
measured satisfactorily within the record of his-
torical process. He, therefore, avoids a collection
of causes célébres, and instead analyzes this de-
vice in terms of what the various parties might
expect by turning to the courts. He inquires
into the degree of justification for styling them
courts as such, as well as under what terms these
conflicts are submitted, sidetracked, or termi-
nated. All of this inquiry is based on the premise
that, in essence, a political trial is aimed at af-
fecting power relations, either by undermining
existing power positions or by strengthening
efforts directed at their preservation.

Interlaced within the analytical material are
some historical examples which provide pleasant
interludes from the heavily documented approach
of the political scientist. These illustrations are
skillfully chosen and thoroughly appropriate;
so much so that a major criticism of some later
chapters is their absence and the resulting over-
emphasis on theoretical dialectics. One of the
best uses of this device is Dr. Kirchheimer’s
exposition of the Caillawx case in First-World-
War France as an example of court action which
may act as validation or invalidation of an ar-

Law Library
Are
7 Vihown » Sang IIE Pm

READING GUIDE 59

The Irreversible Decision, reveals extraordinary
depth in his analysis of events that shaped the
decision to use the atomic bomb and undertakes
a cogent examination of the resulting ethical con-
fusion as he pleads for a new ethic to guide the
political and military decisions of the nuclear age.

The author strikes a remarkable balance
throughout his work between the concept of the
Christian ethic guiding man’s morality and the
military objective fulfilled in World War II by
the atomic bomb and now available in greater
magnitude for a possible World War III. Mr.
Batchelder, who holds a B.D. from Yale Divinity
School and has recently obtained a Ph.D. from
Yale in the field of Christian social ethics, effec-
tively imposes self-restraint as he masterfully
constructs this technical equilibrium.

Mr. Batchelder, in penetrating the historic
and contemporary events of the “decision,” the
drama of the decision itself, the impact and long
term effects upon the minds and emotions of man-
kind, and the added ethical problem posed by the
ereation of atomic weapons, disposes of the di-
Jemma of characterizing the vast number of per-
sonages involved in a most technically economical
manner}; he places individuals in their respective
compartments—scientists, statesmen, militarists,
philosophers—thereby concentrating characteri-
zation on a class basis. Nonetheless, the author
manages to convey to the reader a personal im-
pact from each class. In the years 1939-41, when
the scientists’ efforts to spur the government to
take direct action in development seemed to be
in vain, such men as Einstein, Fermi and Szilard
felt as if they “were swimming in syrup.” Com-
menting on the wartime use of nuclear energy
after having urged so stringently the government
to adopt its use, Hinstein described the aftermath
of paradoxical frustration he and his contempor-
aries experienced: “If I had known that the
Germans would not succeed in constructing the
atomic bomb, I would never had lifted a finger.”
Vibrantly, the author contrasts the positions
taken by such military strategists as LeMay, Mac-
Arthur, the Chiefs of Staff and the President’s
personal advisors — positions which confronted
the new President in making his decision. The
author, conveying a profile of President Truman
to the reader, extracts emotional words that the
new President used in reporting to the nation on

his return from the Potsdam Conference in
August of 1945:

Having found the bomb we have used it. We
have used it against those who have attacked us
without warning at Pearl Harbor, against those
who have starved and beaten and executed Ameri-
can prisoners of war, against those who have
abandoned all pretense of obeying international
laws of warfare. We have used it in order to
shorten the agony of war, in order to save the
lives of thousands and thousands of young Ameri-
cans,

We shall continue to use it until we completely
destroy Japan’s power to make war. Only a
Japanese surrender will stop us.

By applying their respective ethics to the use
and consequences of the atomic bomb, the writer
competently contrasts the varying positions taken
by Protestants, Catholics, Pacificists and Non-
Pacifists groups following the “irreversible de-
cision.” The author eruditely criticizes their
fallible positions in light of the traditional Chris-
tian ethic. Robert Batchelder’s reflections are
not limited to these ethical premises of post-war
years (1946-1950). He sacrifices ethical concepts
for the pragmatic problems involved as he ef-
fectively chides the United States’ inept diplo-
matic and political foresight and concludes that
“,.. the decision to use the bomb might well have
yeen rendered unnecessary .. .” if an attempt
to end the war by political and diplomatic means
had been undertaken sooner. Although deeply
concerned with the ethical considerations in-
volved in the decisions to make and use the bomb,
the author criticizes the inconsistencies in the
post-war debates over the use of atomic weapons.
Yet primarily he demonstrates the lack of wis-
dom in letting fears dictate policy in the fateful
years of 1939-45.

Author Batchelder echoes the “voice in the
wilderness” of the cold war as he pleas for a
new ethic to guide the political and military de-
cisions of the nuclear age. He tacitly asserts
that “... what is required is not only a new
understanding of moral principles in each new
historical context, but also a new understanding
of moral principles in each new context.” He
suggests that a firmer grasp upon such future
basic principles coupled with a stronger hold
upon the “just cause’ in warfare might avert
future atomic conflicts and mitigate the loss of
human lives. Yet, the reader feels as if he has

READING GUIDE 61

rest, the political effect of which was calculated
for and had been spent at a much earlier period.

Turning back to the theoretical analysis, Dr.
Kirchheimer in Part Two, discusses major prob-
Jem areas of the political trial and the nature
and quality of political jurisdiction. He exam-
ines the relation of the judge to the regime under
which he serves and the problems of differentiat-
ing between political and criminal responsibilty.
Finally, he makes an interesting distinction be-
tween a political defendant and a defendant who
by mischance becomes involved in a political trial.
Using the Powers case as an example, the author
states that whatever the immediate consequences
of the court’s disposition of his case, the political
defendant would have disassociated himself, in
his final plea at the latest, from a defense lawyer
who nominally served his client while working
toward the propaganda interest of the authori-
ties. Powers is presented in the defendant-by-
mischance role because he deferred such a step
until it would no longer affect the outcome of his
trial, but only his eventual reception in the
United States.

Later on in Part Two, after an extensive dis-
cussion of Communist and non-Communist legal
structures, Dr. Kirchheimer concludes that under
the former political system, legality becomes a
technique of domination. The Communist party
alone decides whether law or another instrument
of social control should be given precedence. Un-
der this view, law serves the ruling group as a
tool for modifying or shaping te development of
society, and revolutionary legality stands for
planned, coordinated and disciplinal exercise of
class rule,

This is not to say, however, that each society
does not have areas where the rule of law is un-
certain, or even nonexistent. These areas may
be distinguished as identifiable geographic areas,
or they may be nothing more than predispositions
of certain groups ready to act if the socio-political
configuration changes and restraining influences
appear weak. Perhaps the decisive difference,
as presented in this analysis, between a normal
and criminal state, involves the degree to which
such areas are kept under control and whether
they are encroaching on wider fields of social
activities.

Another interesting area of concentration
within Part Two, is the discussion of the Nurem-

berg Trials. Viewed as a trial by fiat, conducted
under a successor regime which was also the vic-
torious military power, the trials are criticized
from several perspectives. Even though the au-
thor suggests some advantages of a local German
court and trial, he concludes that no greater ob-
jectivity would have been provided:

. +. the claim that the juridical liquidation of
the Nationalist Socialist heritage by the foreign
“victors-suecessors” was less dispassionate than
corresponding proceedings before indigenous Ger-
man jurisdictions would have been in 1946 and
1947 is, to put it mildly, hard to believe.

Finally, the Nuremberg discussion is concluded
with one of the more traditional criticisms—that
of the inequality between prosecution and defense.
Unfortunately, lack of resources of the defense
counsel and the establishment, after indictment,
of procedural rules in conformity with Anglo-
American rather than continental practices, are
not persuasively argued as indices of such a dis-
advantage. As a result, the later theoretical
observations are less comfortably accepted by the
reader who is unable to separate substantively in-
appropriate examples from their supposedly de-
rivative conclusions.

Dr. Kirchheimer, however, certainly has pre-
sented the problematic character of political jus-
tice. His third and final section appropriately
is concerned with the intensive interest which
develops in the institutionalized ways of escap-
ing or mitigating its impact. Both asylum and
clemency are presented as institutionalized de-
vices for countermanding the course of political
justice. This section, even more than those pre-
ceding it, draws on historical and literary source
material which is particularly interesting in a
“survey” frame of reference. Although an im-
pressive college of background anecdotes, these
references, however, tend to clutter and obscure
analytical development. Perhaps such a disa-
bility is less decisive in view of the obvious diffi-
culties of fitting the study of asylum and clemency
into the more rigorous disciplines of a study
oriented toward the social sciences.

After such a thoroughgoing examination of
political justice, the author, not unexpectedly,
refrains from presenting any systematic answers
to the various, interrelated problems raised in
the analysis. He does say that political justice
as a concept, is beneficial in that the fight for

62 READING GUIDE

political power, although continuing relentlessly,
would be less orderly without the intercession
of judicial apparatus. Whether such a position
explains Dr. Kirchheimer’s concern over sep-
arateness of the judiciary, and thus integrates
some of the disparate threads of anaylsis, cannot
be determined from his own statements. This
implication does help the reader to interrelate
various focal points of the author’s impressive
scholarship, and offers a guide for rereading
topic areas of special interest. Perhaps not light
reading as political history or even the usual kind
of jurisprudential exploration, Political Justice
diffuses none of its social-science dissections in
offering the reader a kind of contemporary, legal
documentary with a concomitantly broader,
popular appeal.
W.LE., Jr.

Why Not Victory? Barry M. GoLDWATER. New
York: McGRAW-HILL Book Co. 1962. 188 pp.
$3.95.

N the opening\vemarks of his newest literary
effort, Why Not Victory?, Senator Barry
Goldwater conceded) that there might not be a
need for this book... Though his statement is
hyperbolic, the temptation is to concur with the
Senator’s suggestion.

Unfortunately, the book betrays a crudity of
style which would hampéy anyone whose primary
goal is not to entertain byt to get across certain
essential ideas. As the
introduction the book was
and by a variety of people.
istic and tonal chaos,

separate parts are collected to farm a book.”

The book is a self-styled critique \of/American
foreign policy since World War II\ However,
even though the main emphasis is n\events oc-
curing since 1945, the Senator doés nok hesitate
to summon history to buttress his ment] earth-
works. The work is divided i: thirteeh chap-
ters in which the Senator atten{pts to explaik why
or how America has failed in certain areds of
crucial policy making and execution. Among\the
topics he deals with are: the U-2 incident, Améri-
can failures in Cuba, the Monroe Doctrine, the

World Court, disarmament, the United Nations,
Red China, and the war of the future. As the
number of topics might indicate, coverage could
hardly be more than superficial in the space of
this brief work.

Senator Goldwater’s basic thesis is that Amer-
ican foreign policy, at the outset, is based on the
proposition that there can be no victory over
Communism, and that from this propgsition flow
all of the United States’ inabilities fo cope ade-
quately with the Communist bloc’g designs for
world conquest. Since, as he sées it, the op-
posite of Wictory is defeat (ang logically, since
we have disk
be pursuing
feat, swear al
ours. The syl!
the “mental eai
is more akin to &

ictory and it will be
For the substance of

The Senator suffetrs from a basic lack of knowl-
edge of history cgmpounded by an acute case of
frustration at te elusiveness of absolute power
for the United/States over the world. Consider
the following graph in which the author
offers some Zhoughts \on the paradox which Cuba
presents tothe United States:

Of dourse, in those dhys we could take unilateral

Nor were we re-
fricted by oversensitiveness tthe reaction of other
powers to actions we might \ake. We certainly
weren’t the most powerful nation\pn earth at the turn
of the contury. Nor were we the richest or most
influential. But we were, in our dgnvictions and on
our willingness to back them, amon the most inde-
pendent of nations then flourishing. \[t was this in-
dependence—strong, virile, and unafrati—that led us
to challenge a much mightier Spain aid call her to
account for her tyranny over our Western Hemis-
pheric neighbors, It was this independenge that led
the other nations of the world to treat ouk fledgling
country with the respect due her conviclions and
determination.

At the risk of boring the reader with, such a
long quotation, the reviewer feels it is
best to let the Senator speak for himself.
word in the quotation—that which best expresses
the substantive tone of the Senator’s nostalgia—is
determination. This thought runs throughout the
book: that in situation after situation America
has lost her determination to follow her convic-

Political Justice. The Use of Legal Procedure for Political Ends (La justice politique.
L’emploi des proeédés judiciaires A des fins politiques), par Otto Kirchheimer,
Princeton, New Jersey, Princeton University Press, 1961, 452 pages.

Cest avec une réelle mattrise que M, Kirchheimer aborde le probléme aussi ample que
dramatique, et toujours actuel, de Yemploi par 1a machine étatique au pouvoir des
procédés judiciaires A des fins politiques. Professeur de sciences politiques Ala Columbia
University, M. Kirchheimer apporte icl une contribution trés substanticlle qui enrichira
assurément la littérature sur la question. On ne saurait assez insister sur la haute qualité
de son étonnante érudition, lige A un esprit juridique de premier ordre et a une richesse
informations présontées avec une louable objectivité, nuancée, fl est vrai, dun soup-
gon de cynisme. Il paratt presque impossible de procéder, dans le cadre limité dun
compte rendu, & une analyse détaillée d’un ouvrage de cette envergure, dont la lecture
offre une véritable mine d’informations et de réflexions, Nous nous bornerons done &
faire ressortir quelques-unes des theses principales de auteur.

A juste titre, M. Kirchheimer choisit comme point de départ la triste vérité, maintes
fois mise en lumiére par histoire mondiale, & savoir que tout systéme politique a ses
adversaires ou qu’il les erée dans le cours du temps. Une des mesures fréquemment
prises pour les combattre est le recours aux organes de administration de la justice.
D’aprds M. Kirchheimer, les proces politiques prennent les trois formes-types suivantes :
1° celle ot un délit de droit commun fut commis dans un but politique et ot un procés
mené d’une maniare efficace peut apporter des avantages politiques ; 2° celle du proces
politique dit classique, ot un régime donné cherche A incriminer son adversaire,
mettant en cause Vactivité publique de celui-cl afin de l’éliminer de la scéne politique ;
3° celle d’un procés politique ¢ oblique » o& la manipulation habile d’armes telles que
diffamation ou parjure peut jeter le discrédit sur lennemi politique.

C’est A Vanalyse minutieuse du cadre historique, méthodique et conceptuel de ces

~ trols formes de procds politiques, qu’est consacrée la premigre partie de louvrage,
largement illustrée de cas réels. On ne peut qu’admirer la finesse avec laquelle Yauteur
y fait vessortir, entre autres, le probléme juridique toujours délicat de la délimitation
entre le délit de haute trahison et de la simple opposition a la politique gouvernementale.

La deuxléme partie attirera encore davantage V’attention du juriste, car Yauteur y

ia sq

460 SCIENCE ORIMINELLE ET DROIT PENAL COMPARE

analyse on détail les dramatis personae du procas politique, et en particulier le juge,
Vaccusé et son défenseur. Plusieurs pages de ce chapitre transplantent le lecteur dans
PAntiquité, car le professeur Kirchheimer n’omet pas d’enrichir de ses réflexions les
données sur le déroulement du prods de Socrate, et de celui de Jésus.

Mais c’est précisément ce chapitre qui risque de décovoir, voire de heurter le lecteur,
Crest d’abord le fait de voir classé sous la dénomination de procés intenté par un
«régime-successeur » le procés de Nuremberg, événement unique dans Vhistoire du
monde en réponse & ’événement unique que fut le crime des nazis. Ce terme aussi
artificiellement subtil que cynique dans ce contexte, paratt pour le moins difficilement
applicable au Tribunal militaire international de Nuremberg qui n’était pas composé —-
comme le veut M. Kirchhelmer — des seuls quatre partenaires victoricux, C’est le
monde clvilisé tout entier, représenté par les spectres des victimes, qui jugeait les grands
criminels nazis, et c’est en son nom, au nom de la conscience mondiale, que fut rendu le
jugement de Nuremberg, Certes, on connatt les multiples critiques doctrinales, foreément
stériles, du fondement de ce procds, portant sur la compétence du Tribunal ; 1a défini-
tion du crime contre Vhumanité et de la guerre d’agression, ainsi que sur la rétroactivité
des éléments constitutifs des délits définis; sur Papplication @une procédure étran-
gere, la procédure pénale anglo-américaine au Continent; sur le probléme du devoir
Wobéissance A Yordre recu, invoqué par la défense — et beaucoup d’autres.

On peut se demander pour quelle raison Je professeur Kirchheimer se propose de
revenir, une fois de plus, sur toutes ces mises en question nullement innocentes ? C’est
un vrai choc d’autre part, que de voir Yauteur y ajouter le reproche du Tu quoque.
Certes, les développements ultéricurs pourraient justifier ce reproche auquel — comme
le souligne Pauteur — pourrait seul échapper Varchange, descendant sur terre au jour
du jugement dernier. I nous parait prétérable de garder en mémoire, avec respect et
reconnaissance, le proc’s de Nuremberg et de le considérer comme un monument
historique qui reste beau méme si Je temps y a fait ressortir quelques défauts, L’auteur
admet Wailleurs que co procts fut «une opération moralement et historiquement
nécessaire », tout en se demandant si un tribunal autochtone n’aurait pas été plus
approprié pour juger les criminels nazis. Or, il taut espérer que le déroulement des
procés récents en Allemagne, et surtout de celui des accusés du camp de concentration
d’Auschwitz, a montré A M, Kirchheimer le contraire. Le proc’s de Nuremberg tut non
seulement «une opération nécessaire », mais aussi le seul exemple d’un « proc’s poli-
tique » profondément juste, ot «le grotesque et la monstruosité » de tout proces poli-
tique, justement évoqués par auteur pour d’autres exemples ne sauraient étre applica-
bles, En effet, comme le grotesque et la monstruosité consistent dans le fait, que le juge
un proces politique est obligé d’affronter un accusé qui insiste sur la justesse de ses
actes au nom d’une justice qu’il invoque, sur quelle «justice » pourraient se baser les
criminels du procés de Nuremberg ? C'est cette détinition méme qui exclut ce proces
historique de la catégorle des « proces politiques ».

La derniére partie de Pouvrage apporte une trés intéressante analyse de «1a justice
politique modifiée », & savoir des problémes du droit d’asile et de la clémence.

Le livre de M. Kircbheimer est présenté de maniére a faciliter sa lecture, malgré la
richesse des détails, car trois index y sont inclus, dont un apportant une liste des cas
jugés par les tribunaux américains et diseutés par Yauteur, un deuxidme qui contient
une liste des noms, et un troisigme qui est une table des matidres détaillée,

A. Fiarau-SuusTER

Kmounemer, O. Political Justice: The
Use of Legal Procedure for Political
Ends. Princeton: Princeton University
Press, 1961. Pp. xiv, 452.

The term political justice as used
in this book adverts to the utilization
of the devices of justice to bolster or
create new power positions, Its aim is
to enlist the judiciary in behalf of
political goals. In the first of three
parts, the cases, causes, and methods
of political justice are treated, the
nature of the changes in the structure
of state protection in recent years as
contrasted with earlier practices being

wn Be

1962] '

initially defined. The political trial
and the various types of legal repres-
sion of political organizations are then
considered, Resort to the courts may
be of necessity, choice, or mere con-
venience. The political trial may in-
volve a common crime, the exploi-
tation of which may be politically
advantageous, or the subjection of an
opponent to public incrimination or
defamation, perjury and contempt.
Causes célébres, like those of Caleb
Powers for the murder of Governor
Goebel in 1900, Joseph Caillaux for
treason against France in 1918, and
Reich President Friedrich Ebert's
defamation action in 1924, are used
illustratively. The nonconstitutional
trials of Andre Bonnard in Switzer-
land, Otto John and Heinrich Agartz
in West Germany, and various de-
fendants in Communist countries and
Nazi Germany held after the second
World War are described to dem-
onstrate how the area of politically
prohibitable activity has been en-

larged. That the trial isa manipulable

technique in the process of repressing
hostile groups, even within the frarae-
work of democratic institutions, is
affirmed in Part One's historical and
analytical account of the forms of
treatment applied by established
regimes to opposition groups.

In Part Two, the organizational
and societal framework for judicial
action within a constitutional and

one-party regime is described. Here’

there is much that will interest the
student of comparative law, ranging
from an account of judicial recruit-
ment on the continent and in Anglo-
American practice, through a con-
sideration of varying approaches to
the prosecution of political deviation.
The judge gets the major portion of
the attention; though an occasional
participant in the community’s vital
policy actions, he checks, remodels, or
forces changes through “interstitial”
action, invokable only when sought
after. In the heterogeneous society,
the absence of commonly accepted

BOOK NOTICES

yConurwe aw

EM Jot Zoos |

starting propositions precludes impar-
tiality; where there is homogeneity he
may be a mere shuffler of legal tech-
nicalities. Such is suggested to have
been the case in the trial of the Amer-
ican Communist Party in 1949, illus-
trative of the international nature of
the twentieth century political trial,
serving, as it does, as a focal point
for altical strategy throughout the
world, Within the Soviet orbit, to
which this proposition necessarily
applies, the goal is maximal harmony
between judicial activity and official
policy, with every case “ideally” de-
cided in the light of the contribution
renderable to the momentary pro-
gram’s fulfillment. Here the content
of legality shifts to permit enforce-
ment of norms deemed within “points
of concentration.” Germany's Na-
tional Socialist regime is distinguished
as never having had as its goal any
basic change in property relationships
and social stratification; the law’s con-
tinuity was insisted upon while its
revolutionary features and innate law-
lessness were conveniently over-
looked. Trial by fiat of-a successor
regime, as exemplified by the Nurem-
berg war crimes trial, is considered
finally in Part Two, with attention
specifically directed to four of the de-
fense’s rejoinders and the general
question of jurisdiction in cases of
this nature,

Asylum and clementy, devices for
the countermanding of the course of
political justice and the frustration of
its effects, are discussed and analyzed
in Part Three, in the course of which
practices and customs in different
jurisdictions are compared. How the
shifts in political constellations and
usages affect the approaches of adjudi-
cating and adjudicated, how they in-
termesh with time-honored practices
and traditional principles, and how
they relate to the irreducible re-
mainder beyond tational determina-
tion are political issues to which atten-
tion is directed. In the Soviet Union,
for example, traditional . nineteenth

681 TA

|
:
i
i
i

682

century notions of political asylum as
a noble service to be granted to the
politically persecuted clash strikingly
with a practice that predicates refuge
upon the individual’s serviceability to

the party machine, Some vestiges of

hallowed tradition, that America is a
haven to all comers, exist in the
United States, although three decades
of restrictive immigration policies
have narrowed the scope of asylum
chances, Great Britain most stead-
fastly upholds a liberal asylum tradi-
tion, while West Germany’s Basic
Law is permissive, but the list of
countries neglectful of asylum prin-
ciples is considerable. Necessarily,
present day conditions involve govern-
ments in economic, public welfare,
and administrative headaches, dealing
as they must with huge masses of the
politically persecuted, but, as is the
case with the clemency device, where
some subjectivity seems warranted in
the light of humanity’s present per-
formance, political asylum appears
vindicable in a deeply divided world,
setting, as it does, some limit to any
regime’s power,

Professor Kirchheimer, by seeking
to relate political content to juridical
form and exposing it, performs, by
this act alone, a notable service. Be-
cause justice in political matters is
more tenuous than in any other field
of jurisprudence, and because our
international professions rarely co-
incide with our politico-national prac-
tices, his use of materials from many
sources to evolve a less diffuse notion
of what surrounds us warrants an
accolade. He convincingly develops
the theses that every political re-
gime has its foes; that courts sit in
readiness to settle conflict situations,
and in so doing, eliminate political
foes according to prearranged rules;
and that beyond their power to
authenticate official action, the courts
have become a dimension through
which many regimes can affirm their
policies and integrate the population
into their political goals. the sweep

‘THE AMERICAN JOURNAL OF COMPARATIVE LAW

[Vol. 11

of his scholarship -is immense; he
ranges over Greek, Roman, Euro-
pean, and American referents; he
historifies, he classifies, he analyzes,
he compares. His toughmindedness
shows through in many a_well-
turned phrase and jugular charac-
terization. But his direction, more
often than not, seems uncertain, and
his value system, more frequently
than less, seems vague. Political jus-
tice is on the one hand denigrated,
and on the other, condoned. The
“Sudicial space” within which it is
found to be operative is not suf-
ficiently defined to give to it a func-
tioning personality. It is an “eternal
detour, necessary and grotesque,
beneficial and monstrous”; without
political justice and the intercession
of the judicial apparatus, the fight
for political power “would be less
orderly.” It begins to fill all voids and
in the process of being neutralized
prompts evocation of the question
whether it is not indeed consonant
with justice. To this question an
answer is wanting. One can under-
stand why it is of importance for
the Supreme. Court of the United
States to decide whether a question is
justiciable or political; if the latter,
the result, if one follows, is not of
the Court’s direct making, Why jus-
tice should be subdivided in the pres-
ent endeavor requires clarification,
which may well be the very next
undertaking that the author embarks
upon,

HILLIARD A. GARDINER

Parmer, N. D. The Indian Political
"System. Boston: Houghton Mifflin
Co., 1961. Pp. x, 277,

India is undoubtedly the pivotal
country in South Asia; where she goes
politically and economically over the
next decade will determine in large
measure the fate of the rest of South
Asia, and probably much of the rest
of Asia as well, It is thus fitting that
attention be directed to this addition

150

spécifique et une continuité certaine, par-
ticuligrement en ce qui concerne les deux
grands principes de base du léninisme, 4
savoir la domination du Parti sur les
masses, qui a comme but final la révolu-
tion mondiale, et la négation de la liberté
individuelle telle qu’elle est comprise en
Occident, avec son corollaire économi-
que : la lutte continuelle du Parti contre
Pentreprise privée et contre l’accumula-
tion. de la propriété privée.

Labedz et son équipe d’experts parlent
trop brigvement de cette continuité et de
cette logique spécifique du marxisme-
léninisme officiel; par contre ils nous
entretiennent abondamment de l’autre
aspect de la question, auquel nos obser-
vateurs des problémes soviétiques accor~
dent trop peu d’attention, A savoir les
«gitations » de fa pensée marxiste, dont,
nous affirme la priére d’insérer, Labedz
est un éminent spécialiste. Ces « gira-
tions ». sont bien entendu le signe du risque
extréme que court le marxisme moderne
antiléniniste, incapable, en dépit du brio
intellectuel de ses promoteurs, de se dé-
gager complétement des contradictions de
la doctrine classique.

Aprds une lecture compléte du Révi-
sionnisme — que doit entreprendre tout
étudiant sérieux du marxisme-léninisme —
les restrictions imposées dans le passé aux
philosophes soviétiques et maintenant aux
philosophes des pays satellites, la série des
chasses aux sorciéres idéologiques, des
purges et des auto-accusations philosophi-
ques deviennent compréhensibles. Aussi
compréhensible est la détermination des
idéologues soviétiques de coller 4 Lénine,
méme si cela signifie en méme temps
Vabandon de Marx. C. Olguine

Orro Kircuuemer : POLITICAL JUS-
TICE, The Use of Legal Procedure
for Political Ends. Princeton Univer-
sity Press, Princeton, N. J., 1961,
452 pp.

Comme son titre Vindique, le livre
@Otto Kirchheimer, Justice politique, est,
en méme temps, une étude juridique et
un traité politique consactés aux particu-
larités des crimes politiques et aux diffé-
rentes fagons de les combattre. Ce livre
est profondément actuel, tant par son
sujet que par son contenu. La vaste éru-
dition de V’auteur lui a permis de con-
duire son investigation sur la base non
seulement des événements des dix der-
nigres années, mais encore de ceux d’un
passé lointain, Le lecteur peut ainsi com-
parer et apprécier la pratique de ce passé
lointain avec les moyens dont on use de
nos jours pour lutter contre les crimes
politiques, avec ou sans Paide des tribu-
naux,

Citoyen allemand, auteur est particu-
ligrement familiarisé avec la pratique de
la justice politique en Allemagne, non
seulement sous le régne du nazisme, mais
aussi, aprés la guerre, en République Dé-
mocratique Allemande. Ne sachant pas le
russe, il n’a inclus dans son travail trés
substantiel aucun chapitre concernant la
justice politique soviétique, mais parle
beaucoup de l’Etat totalitaire en général
et de son systéme de répression des oppo-
sitions politiques. Cela le dispense d’un
examen détaillé de la pratique judiciaire
soviétique, d’ailleurs bien connue pour
avoir été déjA abondamment décrite. Ce
que nous apprenons ici de la pratique
judiciaire en République Démocratique
Allemande est parfaitement suffisant pour
nous permettre de juger le systéme judi-
ciaire de n’importe quel pays au pouvoir
des communistes.

Comme le montre Kirchheimer 4 bon
droit, c’est sous Staline, 4 plus d’un titre,
que V’asservissement de la justice 4 la ré-
pression des oppositions politiques at-
teignit son point de perfection. Mais la
Yougoslavie aussi a connu de semblables
prac, et ceux de la République Démo-
cratique Allemande sont des modéles en
matiére de préparation d’une affaire ou
la sentence est fixée d’avance.

/Io 2 Fo
LURES,

Au surplus, auteur n’a pas youlu ré-
diger un traité dirigé spécialement contre
les régimes communistes, Il cite maintes
fois les excés imputables aux oppositions
religicuses et raciales en Afrique du Sud,
en Algérie, en Espagne, en Allemagne,
etc. Il entend montrer combien il est né-
faste, moraleiment et politiquement, de
ruiner Pautorité de la justice, en trans-r
formant un procts judiciaire en spectacle
politique, en privant le juge d’une libre
appréciation des preuyes, en limitant le
choix des moyens de défense.

L’auteur montre en outre que le juge,
dans les procés politiques, est moins le
«gardien de la loi» qu'un représentant
loyaliste du pouvoir, Plus étroitement il
est lié au pouvoir, plus fidélement il re-
présente les yues du groupe ou du parti
dirigeant, et plus la sentence est prédé-
terminée (p. 176). LA ot le sort de la
majorité de la poulation est réglé par une
minorité insignifiante, il ne peut y avoir,
entre le juge et des individus en réalité dé-
pourvus de droits, de relations déterminées
par le principe de l’égalité de tous devant
la justice (p.210). Une justice de classe
ne saurait @tre impartiale (p. 217).

Les remarques de notre auteur sur le
réle de la défense dans les procés politi-
ques sont’ également trés intéressantes.

L’avocat ne se trouve pas dans une
situation qui oblige 4 prendre la défense
de Paccusé comme le médecin apporte ses
soins 4 tout malade. Le défenseur ne peut
pas perdre de yue que tout ce qu’il dira
en faveur de Vaccusé laissera inévitable-
ment Pimpression qu’il est solidaire de son
client. Lénine, ainsi que Je montre Kirch-
heimer, recommandait aux défenseurs po-
litiques de s’efforcer de détruire par le
ridicule les arguments de V’accusation, ‘en
laissant A Paccusé le soin de défendre ses
actes (p. 245). .

‘Tout cela montre que le crime politique
est une sorte particulidre d’infraction. Les
codes et la recherche théorique les traitent
a part.

151

Le livre de Kirchheimer n’est pas 4 pro-
prement parler une étude juridique, en-
core qu’elle puisse atre trés utile aux ju-
ristes,

Le mérite de l’auteur est d’avoir mis
Paccent sur les doutes qui ne peuvent pas
ne pas naftre quant au caractére criminel
actes qualifiés d’hostiles 4 [Etat et
poursuivis comme tels, mais qui, en réali-
té, ne sont que des manifestations de mé-
contentement 4 Pégard d’un régime. Est-
ce un crime que d’agir en faveur. d’un
changement de régime, que lutter pour un
droit nouveau, que de critiquer le gouver-
nement ? Od est la frontiére entre l’oppo-
sition légale et cette «lutte pour le droit»,
que le célébre juriste allemand Ihering
considérait comme le facteur naturel de
Pévolution du droit ? Telles sont les ques-
tions posées par Kirchheimer (p. 31 4 35)
ou qui découlent des faits produits et
éclairés par lui.

Si Kirchheimer connaissait la littérature
juridique russe, il pourrait trouver dans

“les travaux des représentants de l’école

psychologique de droit, chez Petrajitsky
(Théorie du droit et de la morale) et chez
Guins (les Idées modernes dans le do-
maine du. droit) bien des points communs
avec ses propres considérations sur le ca-
racttre « conditionné » des normes juridi-
ques, sur les « époques de transition » et
sur ’évolution des notions d’« intérét » et
de « volonté » du peuple. L’enseignement
de Pécole psychologique, qui montre com-
ment se crée le droit « intuitif », en désac~
cord avec le droit « positif » en vigueur
(Petrajitsky), et comment A partir d’une
foule de convictions intuitives concordan-
tes naft une nouvelle conscience juridiqué
(Guins), trouve, 4 son tour, une confir-
mation dans les données de Kirchheimer,
ainsi que dans ses généralisations. La né-
cessité urgente de réformes devient par-
fois si évidente que seule issue — le suc-
cés ou P’échec — de Ja lutte pour ces ré-
formes peut, dit Kirchheimer, résoudre la
question de savoir qui a raison, et qui a
tort (p. 240). Quand les infractions 4 la

152

loi deviennent trop fréquentes, le pouvoir
ne peut plus les chatier toutes et ne pour-
suit plus que ceux qui se préparent a
L« insurrection ouverte » (p. 241).
Comment sortir des contradictions et
des conflits d’opinion sur les voies bonnes
ou mauvaises menant 4 la réforme de
Pordre existant, sur la nécessité ou la
nocivité des projets et programmes propo-
sés? Pour cela, il suffit de confronter les
régimes totalitaire et démocratique. Kirch-
heimer définit le premier comme un sys-
téme od la libre: émulation’ des idées et
des forces sociales est frappée d’anathéme,
od une planification et une direction cen-
tralisées remplacent les associations libres,
mises hors la loi (p.295). Le droit se
transforme en instrument du pouvoir et
chaque individu doit conformer sa vie et
son activité au plan imposé d’en haut.
Qu’est-ce que la loi, ‘quelles sont les
sources du droit? En République Démo-
cratique Allemande,. dont le régime est

cité par Pauteur comme modéle de sys- .

tame totalitaire, le pouvoir exécutif consi-
dare la loi insorite dans la constitution et
wimporte quelle circulaire administrative,
nimporte quelle résolution des organis-
mes dirigeants, n’importe quel discours
dun chef du régime, n’importe quel ar-
ticle paru dans lorgane officiel du Parti,
voire n’importe quelle conférence explici-
tant quelque point important de la doc-
trine communiste comme également impé-
ratifs (p. 297). La légalité, nous dit
Yauteur, représente, dans ces conditions,
une combinaison de la loi et d’une inten-
tion. Le juge n’est qu’un fonctionnaire
entre d’autres, et il doit, comme tous,
suivte strictement & la fois les ordres et
les « signaux « donnés d’en haut et mon-
trant la direction politique.

Au contraire, un Etat fondé sur le droit
se borne A contenir les oppositions dans
des limites garantissant 1a sécurité et
Pordre. L’opposition bénéficie de la pro-
tection de la loi, mais par 14 méme s’im-
pose a elle la conscience qu’elle doit rester
dans les limites de Ja loi. La constitution

de la Cinqui&me République donne au
président de la République le pouvoir de
mettre Je parti communiste hors la: loi,
mais de Gaulle n’a pas us¢ de ce droit.
Le respect de la Iégalité par lune des
parties incite Pautre a rester elle aussi
dans le cadre de la loi. Au contraire, les
violences commises en Algérie et en Fran-
*ce par ’O.A.S. ont provoqué une inévi-
table réaction de contre-terreur. La. jus:
tice politique, dit Kirchheimer pour con-
clure, sert les intéréts de la politique, mais
ce service peut prendre des formes diver-
ses. En régime totalitaire, le juge, devant
une affaire politique, cherche la décision
désirée par le pouvoir, alors que le juge
dun Etat fondé sur le droit garde la
liberté de ses moyens d’action et s’inspire
non de ce qui est nécessaire au pouvoir
A un moment donné, mais de ce qui peut
rester une décision valable aussi pour
Pavenir (p. 424).

Le probléme des délits politiques est
complexe, car la politique fait irruption
dans le domaine de la jurisprudence cha-
que fois qu’une ‘affaire touche la défense
du régime existant et les pouvoirs qui le
représentent. Kirchheimer a raison de
joindre & son livre deux chapitres spéciaux
et trés substantiels qui traitent du droit
@asile, dont Pusage est si fréquent de nos
jours, ainsi que du droit de grace ou
damnistie, qui sont, dans une certaine
mesure, des compensations au systéme de
répression des ennemis d’un régime exis-
tant. Mais il manque A son livre certains
principes conducteurs de lege ferenda:
il aurait pu souligner que ne peuvent de-
meurer impunis des crimes contre les lois
protectrices de principes moraux essen~
tiels, comme celles qui poursuivent le ter-
rorisme et la trahison ; mais qu’une oppo-
sition qui n’a pas recours 4 la force ne
peut, en aucun cas, étre considérée comme
un crime ; que le systtme du parti unique
est la base du régime totalitaire antidémo-
cratique, violant le droit du peuple d’ex-
primer librement sa volonté, et que, vu-la
situation internationale, aucun Etat ne

peut retrancher derriére sa « souveraineté »

et prétendre échapper ainsi  l’action’ des

organismes internationaux,. quand il se

rend coupable. de terreur massive et de
' génocide dans la poursuite d’ennemis de

classe, ou d’adversaires politiques, raciaux

ou religieux.

G. Guins

Cartes Warren Hostier: TURKEN
UND SOW JETS. Die historische Lage
und die politische Bedeutung der Tiir-
ken und der Ttirkvélker in der heu-
tigen Welt. Alfred Metzner Verlag,
Francfort-sur-le-Main, Berlin, 1960,
264 pp. et 5 cartes.

Parmi les travaux’ scientifiques récents
se trouvent des études particuligrement
intéressantes et précieuses, s’imposant 4
attention du public et de la critique.
Crest sans aucun doute A cette catégorie
qu’appartient le travail du chercheur amé-
ricain Charles Warren Hostler, publié
pour la premiére fois en anglais en 1957
& Londres (Tirkism and the Soviets, The
Tiirks of the World and their Political
Objectives. Georges Allen, Ltd.) et Von
doit se féliciter de initiative de Péditeur
allemand 4 qui nous devons Ja traduction
allemande qui fait Pobjet du présent comp-
te rendu.

Au cours des dernidres dizaines d’an-
nées, la science mondiale s’est enrichie de
nombreux travaux concernant les peuples
tiirks et la situation de ceux qui vivent
en Union Soviétique. Il suffit de rappeler
Jes ceuvres des savants turcs suivants :
Khalil Inaltchik, Akhmet Temir, Baymir
za Hayit, Abdullah Soisal ; celles des sa-
vants occidentaux que sont G. Jischke,
B. Spuler, J. Benzing, G. von Stackelberg,
N. Poppe, W. Dubrowski, A. Bennigsen et
maints autres qui ont apporté leur contri-
bution 4 Pétude du monde tiirk passé et
présent. Cependant, la plupart des tra-
vaux récents en ce domaine: sont consa-
crés 4 des problémes ou A des secteurs
particuliers du monde tiirk : 4 Ja Turquie

153

proprement dite, au Turkestan, 4 lIdel-
Oural, au Caucase et 4 la Crimée ou en-
core a des questions historiques spéciales.
Parmi les travaux relativement peu nom-
breux et’ qui embrassent des ensembles
assez larges du monde ture, il faut acor-
der une attention particuliare aux trés
intéressantes études de G, yon Mende:
Der nationale Kampf der Russlandtiirken
(Berlin 1936), de Zeki Velidi Togan :
Bugiinkit Tirkili (Tirkistan) ve yakin
taribi (Istanbul 1942), et de R. Pipes : The
Formation of the Soviet Union. Commu-
nism and Nationalism, 1917-1923 (Cam-
bridge, Massachusetts 1954). L’intérét par-
ticulier du récent livre de Hostler consiste
sans aucun doute en ceci qu’il s’efforce de
présenter au lecteur un tableau large et
complet du passé récent, de la situation
actuelle et de la signification politique de
tout Ie monde tirk d’aujourd’bui. L’un
des critiques de cette couvre a eu raison
de faire remarquer qu'il s’agit 14 de «la
premigre et unique étude résumant Pen-

semble de la situation » du monde con-
sidéré.

Le livre comprend cing chapitres. Dans
le chapitre introductif, Vauteur attire
Pattention du lecteur sur Pimportance
mondiale du probléme que souléve le
monde tiirk, lequel occupe une surface
immense, des rivages de la Méditerranée
et de la moyenne Volga, a Vouest, aux
frontiéres de la Mongolie, 4 Vest, et fait,
selon les propres termes de. Hostler,
VP «objet du grand. litige géopolitique »
de notre temps, Il est intéressant de faire
remarquer que l'un des critiques anglais
de l’osuyre de Hostler a souligné spéciale-
ment l’importance économique et stratégi-
que de cet espace dans la politique mon-
diale, actuelle. Dans le domaine politico-
national, les moments les plus’ rethar-
quables du probléme pantiirk furent, au
xx¢ sidcle, la naissance et le développe-
ment de l’idée de tiirkisme, le mouvement
de libération d’une ‘Turquie nouvelle, na-
tionale, avec A-sa téte le grand Atatiirk,

‘Political Justice, By Otto Kirchheimer. \\
Princeton. $8,50.
{A sophisticated but not cynical critique of
the judicial process as an instrument of
‘political power. Drawing upon a wide
variety of cases, celebrated and obscure, the
jauthor has produced a work that will be
\consulted by students of the political process.

The Political World of American Zionism.
By Samuel Halperin. Wayne. $8.

The struggle of American Jews to achieve
national statehood. Carefully researched,
idispassionately reported: a fascinating case
‘study of one of our most complex interest
groups, marred only slightly by the super-
jimposition of currently popular but un-
necessary conceptual apparatus,

2
De bey hypatlec

SLAVIC REVIEW

AMERICAN QUARTERLY OF SOVIET AND EAST EUROPEAN STUDIES

MAR 1963
156 Slavic Review

this is a special issue, touched upon only in a peripheral way in this careful
ayd valuable study.

University of Alberta, Calgary Freprrick G, HEYMANN
\

\

Mrcwarh, J. Rura, Reinterpretation of History as a Method of Further-
ing Communism in Rumania: A Study in Comparative Historiog-
raphy. Washington, D.C.: Georgetown University Press, 1961. xi
+ 123 pp. ‘$2.50.

Mr. Rura’s sad) a timely presentation of a theme which could more
fittingly be entitleds, “The falsification of history as a method of Communist
indoctrination.” The,author tackles the subject in an academic way by com-
paring Rumania’s preCCommunist historical tradition with that manufac-
tured by the Communist. historians. Implying that the old school laid itself
open to attack by underscoring national themes and minimizing revolution-
ary currents, the author recognizes nevertheless that the basic preoccupation
was the search for truth. The description of the methods used by current
historians to destroy the traditignal interpretation and substitute their own
version makes it obvious that the term “reinterpretation” should properly be
discarded. Me

Rejecting virtually all the traditional tenets as unscientific, current his-
torians have changed the periodizatién to conform to the Marxist pattern,
substituted Slavic for Roman origins, eyaded religious and national prob-
lems by considering only social and ecdpomic ones, replaced exploits of
princes with themes of social unrest, stresset the liberating role of Russia in
contrast to the exploitation of the Western powers, censored all embarrassing
problems, particularly in contemporary politigal history up to 1944, and
filled the vacuum with a mythical Russo-Rumanian revolutionary theme.
Mr. Rura stresses the methods by which all this wag achieved by heading his
chapters: Reinterpretation by omission, substitution, emphasis and corrup-
tion—a division which entails a certain amount of repetition. The author
certainly deserves to be commended for his painstaking examination of Com-
munist documentation—materials which are not always easy to obtain.

The weakest side of Mr. Rura’s analysis is that dealing\with Rumania’s
prewar historiography, which, assuming that there is a basisfor comparison
with that of the postwar period, is presented in an oversimplified way. The
choice of authors cited is not sufficiently discriminating, and My. Rura too
often bases his opinions on foreign writers who cannot be ranked as pre-
Communist Rumania’s foremost historians, Some of these lacunae stam from
the unavailability of many traditional works in the West, which i
provides eloquent testimony to the effectiveness of Communist suppredgion.

Oxford University Raou R. Frorese

Orro Kircunemer, Political Justice: The Use of Legal Procedure for
Political Ends. Princeton, N.J.: Princeton University Press, 1961.
xiv + 452 pp. $8.50.

Reviews 157

The Introduction to Professor Otto Kirchheimer’s volume seems to commit
the author to a comprehensive analysis of a highly significant but extremely
elusive phenomenon. But the actual structure of the book follows a con-
siderably more eclectic design. As the table of contents indicates, the
emphasis is upon certain selected phases or aspects of political justice, and
its contribution lies in an exceedingly informative survey of examples of
the thing being defined rather than a systematic exposition or inventory of
its essential attributes, Part I is devoted to a review of the cases and methods
illustrative of political justice; Part II to the complexion of the components
of the trial situation in a political case, that is, the roles of judge and de-
fendant vis-d-vis the state; and Part III to certain means by which political
justice is modified, that is, asylum and clemency.

From an institutional point of view the chief merit of the book for Anglo-
American readers lies in the author's survey of the work of the continental
“constitutional courts” in relation to political controversies. His command
of these sources is—at least to the best of this reviewer’s knowledge—
admirably complete, and it would be highly desirable if students of domestic
public law would take more careful note of such comparative data.

From a more topical point of view, the author's principal contribution
lies in his treatment of the predicament of democratic constitutional regimes
(the so-called open societies) when confronted by claims to the exercise of
freedom of speech, press, and assembly by organizations dedicated to the
ultimate overthrow of governments which cherish such freedoms. Professor
Kirchheimer’s recurrent references to this problem—combining, as they do,
a familiarity with both Anglo-American and continental precedents—are
extremely valuable. This perspective, for example, enables him to discuss
the clear and present danger test (which our own publicists have a tendency
to praise or damn rather uncritically) with sober appreciation of both its
merits and limitations.

The foregoing tributes must be offset by certain reservations. As already
suggested, the promise of the book on the theoretical plane is hardly ful-
filled. “Political Justice” cannot be adequately defined without putting
down a firm jurisprudential foundation, and this Professor Kirchheimer
does not do. His view of the relationship between law and the state, for
instance, is only tangentially reflected in his discussion of other subjects.
Consequently, the reader is deprived of a frame of reference for the concept
of “legality” which is constantly and necessarily so employed in contra-
distinction to “that which is merely ordained by the Powers that Be.”

This means that the book presents facets of his professed subject rather
than, the definitive categories the reader may have been led to expect. It
also frequently means that the categories he does use are inadequately
explained. In Chapter 4, for example, a minority regime's admittedly
constitutional repression of democratic movements is treated as no less
exemplary of illegality than a majority regime’s unconstitutional repression
of minorities. The inference here is either that the preconceptions of
political democracy (the universal franchise, etc.) are directly incorporated
in the rule of law, or that equality, in the sense required for full political
democracy, is part of a natural law order which in turn furnishes the test
of legality. Yet the reader cannot be sure that such an inference is intended

158 Slavic Review

because a philosophical position sustaining them is nowhere formulated.

Finally, the author’s style is not conducive to easy reading and it is some-
times ponderously verbose without the excuse of profound content. On page
6 of the introduction, for instance, the author demonstrates an uncanny
ability to fatigue the reader in the course of a relatively short sentence. I
quote: “The more elaborate the paraphernalia of authentication the greater
the chance of vicarious popular participation in its conundrums.”

It would be unfair to suggest that all his conclusions are similarly encum-
bered. Some of them are succinctly put and convey useful insights. I shall
therefore conclude this brief review with another quotation, from the final
paragraph of Chapter 3: “Thus the lasting results of the propaganda trial
are likely to be paradoxical. The morality play, after serving the political
needs of the day, will survive mainly as a testimony to its initiators’ own
frame of mind, which may well prove more distorted than that of their
victim.”

University of Washington Kenneru C. Corr

Kyaus Mrnnerr, Soviet Man and His World. Translated by Maurice
enbaum. New York: Frederick A. Praeger, 1962. 310 pp. $5.95.

Soviet man in Klaus Mehnert’s view is significantly different from his Russian
grandfather, but not entirely a “new Soviet man.” A German by birth, Mr,
Mehnert wikened in tsarist Russia, educated in Germany and ‘America,
and has subsequently specialized in Soviet affairs, He resided and traveled in
Russia on thiesheepaate occasions, together totaling six years. Thus, he is
uniquely qualified Poy his task.

In Soviet Man and His World Mr. Mehnert has analyzed the impact upon
the present-day Russian‘of three primary influences: ‘his heritage of tradi-
tional Russian characteristi s, the forces of industrialization, and the pres-
sures of Communist social engineering. His conclusions are perceptive and
should be of interest and valu \to the specialist and layman alike. “The
Russian of today,” he stresses, “is imore moderate, more disciplined, than his
forebears; his boundless energy is absorbed by exacting labor and checked by
strict laws” (p. 82). On the one hand, Soviet man respects (even though he
somewhat resents) the privileged scientist, and Communist functionary in
much the same manner that his grandfatheh.tended servilely to admire the
elite in tsarist Russia. His fear of being spied.upon and his distrust of all
about him during the worst Stalin years have, significantly, failed to snuff out
his inherited human warmth, boisterousness, and-overt sympathy for his
fellow beings and his gregariousness. Like his predecésgor, he is reluctant to
accept personal responsibility.

On the other hand, Soviet man’s inherited capacity to entire hardship and
bow to the inevitable has abetted Communist dictatorial rile, Despite the
latter, however, the author believes that Soviet man has becky more ego-
tistical and not more collectivist minded. Indeed, after comparing, Russians
with Americans, the author concludes that Soviet man is more man“than he
is Soviet: he is, and likely will remain, more concerned with assuri “hee

personal security, maximizing his privacy, and extending intellectual =

Trvdugen Foes fee ap 1962

1962 ] Recent Books 677

N\ Pourticat Justice: Tue Usr or Lecat Procepure ror Poxitican Enps.
By Otto Kirchheimer. Princeton, New Jersey: Princeton University Press.
1961. Pp. 452. $8.50. '

This book is a definitive study of the use of the legal process by the state
against individuals as an instrument of political power. “Something is
called political if it is thought to relate in a particularly intensive way to
the interests of the community.” (p. 26) This reviewer has put the
meaning of the term political as follows: “As the intensity of attachment of
the actors in a situation of conflict to the competing values involved therein
increases and the number of actors in the society who are involved in such
value conflict increases, the likelihood will increase of the characterization
of the situation as one of a political, rather than a legal, nature... . When
conflict in a society involves competing group demands based on in-
compatible values held by such groups, its resolution is typically the task
of the political process and institutions, rather than the legal.” In the
view of Justice Jackson, decisions which are “confided to the political
departments of the government . . . are delicate, complex, and involve large
elements of prophecy . . . and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil.”?

The political trial involves the prosecution by the state of one or more
individuals for the commission of criminal offenses, The offenses may be
either common crimes or criminal acts directed against the state, such as
treason and sedition. Modern security legislation seeks “to protect the
political order from any intellectual, propagandist, and especially organizing
activity directed toward revolution. . . . [TJhe area of genuine political
criticism is overhung by clouds which hide the light separating fact, fancy
and wish. It is not easy to disentangle the components and isolate the
maliciously slanderous contribution. Many a recent statute has ignored the
difficulty, subjecting legitimate criticism to punitive provisions.” (pp. 41,
48)

The political trial, as an instrument for achieving and preserving
political authority, tears an incident loose from the historical context in
which it was intertwined and turns the “strongest spotlights on it, to disclose
its minutest detail... . The past is reconstructed for the sake of the future
as a possible weapon in the battle for political domination.” The trial
requires a “segment of history’ to be reconstructed. Although the past
segment is part of “a still present conflict,” the judge is allowed “to
disregard its present elements and treat it exclusively as a past event.” But
any trial entails risk that its reconstruction of a past event through the

1 Gartsron, LAW AND ORGANIZATION IN Wortv Socrmry, ch, VII (to be published by
the University of Illinois Press, Urbana, 1962) .
2 Chicago & So. Air Lines, Inc. v. Waterman 8.8. Co,, 388 U.S, 108, 111 (1948) .

678 Micnican Law Review [Vol. 60

testimony of witnesses will not take place as anticipated. In the political
trial, it is imperative that witnesses reenact their predetermined roles with
scrupulous fidelity, otherwise the political message which the trial was
intended to communicate will be lost. (pp. 110-12)

‘The use of the legal process to suppress groups who dissent in principle
from an established regime “has been directed so far against small groups
of little importance in domestic affairs... . Open repression . . . is bound
to miss the target and repel friends when the persecuted group assumes
the stature of a mass movement, controlling a large segment (say, more than
twenty percent) of the popular vote. . . . Even if a combination of social
and economic pressure and police operations were enough to enforce the
ban, there might be enough resistance to throw the judicial machinery out
of gear and cancel what is the benefit of limited repression, the chance to
preserve intact the legal process and the framework of democratic institu-
tions,” (pp. 159-60)

The degree of consensus of a society upon a single value system or, put
in opposing terms, the heterogeneity of a society in terms of its sharing of
values and the priority accorded values, is a factor of first importance in
the viability of its legal system. The author develops this principle as
follows: “The meaning of legal consciousness in a heterogeneous society
thus offers special problems. If no informal consensus exists on fundamental
community issues, the judges cannot play their traditional role in realizing
the community value structure and pointing it up in relation to specific
issues. . . . Impartiality presupposes a commonly accepted starting pro-
position. If as his point of departure the judge uses propositions which
are emphatically rejected by substantial elements in the community, he
will not be able to rely on the presumption of obedience owed to his office,
even if he can show that he has adhered with some consistency to his initial
proposition.” (p. 215)

Dissent from the politics of an industrial society will reject the ethic of
conformity and embrace instead loyalty to a group or cause: “‘The politics
of an industrial society have often become a rational interplay of interest
organizations whose outward form is a gigantic and permanent popularity
contest. Members of the legal profession functioning as custodians of the
political game must themselves conform to its rules and precepts. Why,
then, should anyone else be privileged to reject the prevailing political
framework and insist on recreating politics in the image of a community
resting on loyalty to group or cause rather than on rational, civilized, if
uninspiring, calculation of profit and loss?”

The lawyer’s task in a political trial taking place in a mechanized,
standardized, conformist society is to use “creative ingenuity ... in whipping
diffuse elements of a given situation into convincing enough shape to obtain
a favorable reaction for his client.” (p. 248) A functionary of the Czech

1962 ] Recent Booxs 679

Lawyers’ Organization pointed to the dichotomy of the lawyer's devotion
to the interest of his client and public interest, which is involved in a
political trial, as follows: “If the lawyer wants to keep to the principle
that he has to preserve the interest of his clients in conformity with the
interests of society and the principle of objective truth, he has to analyze
clearly every case. He has to conform to the objective truth and the
interests of society. For this reason we use the term ‘justified interest of
the client,’ and only those interests may be taken care of by the lawyer.”
(p. 244) (Emphasis supplied.)

The author examines the history of the manner in which political
trials have been used to protect regimes from subversion and overthrow.
The principles governing the use of political trials as a support for authority
are elucidated and developed through illustrative examples. The requisite
characteristics of the roles of the defendant and his lawyer, together with
the prosecutor and the judge, are thoroughly explored. There are many
perceptive statements about the nature of the judicial process and the task
of the judge in trials of this character.

One chapter is devoted to the operation of the judicial process in
societies characterized by “democratic centralism,” in which the judiciary
became integrated with the political institutions. In such societies, the
judiciary becomes an instrument for attaining the changing political
objectives of the state. “The essence of socialist legality, then, is guarantee-
ing that orders and signals are unfailingly observed at all subordinate levels,
. . . When policies and official interpretation change, legality attaches to
the new task at hand. Under no condition is it called upon to mediate
between today’s objectives of the sovereign and yesterday’s expectations
of the subject.” (p. 298)

The Nuremberg trials are explored as an aspect of trials by successor
regimes, They are termed “the most important ‘successor’ trial in modern
history.” With respect to the crime against peace charge, the author states:
“Had the noble purpose of the crime against peace charge succeeded, had
it helped to lay a foundation for a new world order, the uncertain juridical
foundation of the charge would now be overlooked and the enterprise
praised as the rock on which the withdrawal of the states’ rights to conduct
aggressive warfare came to rest. At the coalition pursuing the Nuremberg
enterprise broke up before the ink on the Nuremberg judgment had time
to dry, the dissensions among the wartime partners threw a shadow over
the whole affair.” (pp. 28, 824)

With regard to the crimes against humanity charge, the author
concludes: “The newly coined crimes against humanity concept (Article 6c
of the charter) corresponds to a deeply felt concern over the social realities
of our age: the advent of policies intent on and leading to debasing or
blotting out the existence of whole nations or races. But if the social and

680 Micuican Law Review

political mechanism employed in such cases is unfortunately very clear, the
legal formulas to cover and repress such actions remain problematic. In the
absence of a world authority to establish the boundary line between atrocity
beyond the pale and legitimate policy reserved for the individual state,
the French government and its Algerian foes, the South African government
and the representatives of the downtrodden negro and colored population,
not to mention the Hungarian regime and its adversaries and victims, might
continue to have a very different viewpoint on the meaning of the concept.”
(p. 826)

The final appraisal of Nuremberg is that: “The concrete condition
under which the Nuremberg litigation arose and the too inclusive scope
of the indictment may make it difficult for us to separate the circumstantial
elements which it shares with all other successor trials from its own lasting
contribution: that it defined where the realm of politics ends or rather, is
transformed into the concerns of the human condition, the survival of
mankind in both its universality and diversity.” (p. 841)

The concluding portion of the book is entitled “Political Justice
Modified: Asylum and Clemency.” It embodies a “search for rational
elements in asylum and clemency practice.” (p. 349)

This review has summarized the highlights of the author's thesis to
demonstrate the thoughtful, analytical manner in which data of political
trials are employed to develop in a creative way significant principles and
propositions in political and legal theory. The literature of law and
jurisprudence has only episodically and tangentially dealt with the problem
of the political trial, which the author investigates with such thoroughness.
This study focuses directly upon the principal aspects of the problem and
is a most important contribution,

Kenneth S. Carlston,
Professor of Law,
University of Illinois

ae

226

Three long essays on mental hospitals—gener-
ally from the point of view of an inmate—
preceded by an essay “On the Characteristics
of Total Institutions.” The materials presented
in the studies of mental hospitals are of con-
siderable interest and raise significant questions
about the effect of hospitalization on therapy.
The introductory essay, however, is far more
speculative in character and finds Goffman en-
gaged in attempting to discover a “solid frame-
work bearing on the anatomy of this kind of
social animal.” The “social animal” is the “total
institution”—“a place of residence and work
where a large number of like-situated individu-
als, cut off from the wider society for an ap-
preciable period of time, together Jead an en-
closed, formally administered round of life” and
Goffman draws his materials from accounts of
life in nunneries, prisons, military establishments,
and concentration camps, as well as mental
hospitals. The analogies which result between
nuns, mental patients, soldiers, prisoners and
mother-superiors, nurses, officers, and wardens
are tempting, but doubts remain as to their
“solidity.”

\Gorrman, Ervine. Encounters: Two Studies in
the Sociology of Interaction. (Advanced Studies
in Sociology, Vol. I.) Indianapolis, Ind.: Bobbs-
Merrill Co., 1961, Pp. 152. $1.95.

Two studies of a species of “face-to-face inter-
action” which Goffman chooses to call “focused
interaction,” “Focused interaction occurs when
people effectively agree to sustain for a time a
single focus of cognitive and visual attention,
as in a conversation, a board game, or a joint
task sustained by a close face-to-face circle of
contributors.” The first of the two papers
(“Fun in Games”) “approaches focused gather-
ings from an examination of the kind of games
that are played around a table,” the second
(“Role Distance”) “through a review and
cism of social-role analysis.”

Hurenins, Roperr Maywarp, and Avtar, Morrt-
mmr J. (eds.). The Great Ideas Today, Chicago:
Encyclopaedia Britannica, 1961. Pp. vili-+562.
$8.95.

‘The formula for the construction of this book
(the first of an annual series) is to combine
the Britannica Book of the Year with The
Great Books of the Western World, ‘The results
are unusual, but not so alarming as might be
anticipated. There are hundreds of pictures (in-
cluding some in gorgeous technicolor); the
“Great Debate of the Year” (‘Is democracy
the best form of government for the newly
formed nations?” discussed by William O,
Douglas and Peregrine Worsthorne) ; a review

ETHICS

of world affairs during the year by the editors
(in which The Federalist, Plato, Aristotle, and
Herodotus are used to illuminate the presi-
dential election); 2 review of significant de-
velopments in literature (Mark Van Doren) ;
physical sciences and technology (Walter Sulli-
van), social sciences and law (Edward Shils),
biology and medicine (Gilbert Cant), and
philosophy and religion (George P, Grant) ; and
finally additions to the Great Books Library
of complete works by Dewey, Einstein, Moliére,
and Toynbee, A sophisticated and urbane pro-
duction for a large audience,

Kmonmmmen, Orr0, Political Justice: The Use
of Legal Procedure for Political Ends. Princeton,
N.J.: Princeton University Press, 1961. Pp. xiv-+
452. § a ss
A study of “the most dubious segment of the
administration of justice, that segment which
uses the devices of justice to bolster or create
new power positions.” Not a collection of cases
or a history, but an attempt to “relate the
political content to the juridical form under
which cases take place.” A massive, systematic
study raising fascinating and important ques-
tions.

Kisstwour, Henry A. The Necessity for Choice:
Prospects of American Foreign Policy, (Anchor
Book A282.) Garden City, N.Y.: Doubleday,
1962, Pp. xil}-387. $1.43.

In this book, originally published in 1960, Kis-
singer presents crisp, sharply reasoned doc-
trines about deterrence, limited war, Germany,
NATO, negotiations, arms control, political evo-
lution, the new nations, and the relation of the
intellectual to policymaking. In general, the
author stresses the necessity for making many
hard choices, the fact that there are no easy
solutions to any of the problems involved, and
conviction that there is not much room for
either error or indecisiveness.

Koon, Aprrewne. Powers, Morals, and the Found-
ing Fathers. (Great Seal Books.) Ithaca, N.Y
Comell University Press, 1961. Pp. ix 4-158, $1.95.

A volume assembling “a group of essays that
have appeared in various journals over a peri-
od of ten years,” A study of five “philosopher-
statesmen”—Franklin, John Adams, Jefferson,
Madison, and Hamilton—centered on the rela-
tion in their thought of the “supposedly con-
tradictory” terms “power” and “morals.” Ar-
gues, in fact, that “the republican experiment”
of the American union “can still serve as a
model to all the world, as the founding fathers
hoped, because they, by their joint activity, saw
the necessity for the constant balance and ten-
sion of power and morals.”

JUSTIFICATIF
BEVUE PreRpaise og SCIENCE POLITIQUE
27, Rue Seint-Guillaume, Paris.7° a

jo
«boite a lettres > i g caved tentaculaires » (p,#306). L'auteur s'attache
également a décrire les relations des ‘fonctionnairesyét des parlementaires ; dans
un passage d'une grande finesse psychologique, iJ#compare leurs optiques, leurs
préoccupations et leurs comportements et insigté, fort justement selon nous, sur
le fait que leurs attitudes respectives sonf” plus complémentaires  qu’antago-
nistes,

L'ouvrage s'achéve sur un des thémés fondamentaux de la science adminis-
trative, celui des rapports entre adgfinistration et public et on ne peut que
souscrire aux vues de l'auteur sygfMla nécessité d’ « ouvrir I'administration sur
Yextérieur >, C'est en cela, a noffe sens, que réside la véritable réforme admi-
nistrative,

Au total, Le fonctionnairg’ francais peut étre d’ores et déja considéré comme
un classique de la « littérafifre administrative >, Sans étre un ouvrage de science
administrative au sens épfoit du terme, il offre un témoignage dans lequel cher-
cheurs et fonctionnairg’ trouveront maints thémes de réflexion.

Souhaitons que Rf Catherine n'en reste pas 1A et que, poursuivant et déve-
loppant les analysg$ contenues dans ce livre, il nous présente bientét un bilan
des problémes dg’ I'administration frangaise. Sa triple qualité d’administrateur,
de professeur gt de directeur de la Revite administrative lui donne des titres
particuliers a une telle synthése,

KIRCHHEIMER (Orro) — Political justice. The use of legal
procedure for political ends. — Princeton (N.J.), Princeton Uni-
versity press, 1961, 24 cm, x1v-452 p, Index. $ 8.50,

Bernard Gournay

Voici un ouvrage de grande valeur dont il faut espérer une prochaine
édition frangaise, Pour s’attaguer & un tel sujet, I'auteur devait étre a la fois
juriste et politiste, avoir une large culture historique et un sens aigu des réa-
lités de notre temps, Otto Kirchheimer remplit parfaitement ces conditions, De
plus, sa triple expérience de |'Allemagne, de la France et des Etats-LInis,
ot il occupe une chaire de science politique a la Columbia University aprés
avoir été pendant de longues années chargé des affaires européennes au
Département d’Etat, lui a permis de se placer tout naturellement dans une
perspective comparative et de tenir compte 4 chaque instant de la tradition
juridique et idéologique du pays considéré. La richesse de la documentation est
étonnante. Les références & la France, par exemple, ne comprennent pas seule-
ment des livres du xix* siécle ou des traités de droit, mais aussi les analyses de
Casamayor, les articles de J.M. Théolleyre, les prises de position de M® Halimi
dans les Temps modernes, incorporant encore le bilan «Les atteintes a la
sfireté des Francais > paru dans Esprit en mars 1961, La documentation alle-
mande ou américaine est aussi variée et aussi a jour.

Pour exposer les résultats de ses recherches et de ses réflexions, Kirch-
heimer a rencontré une difficulté classique: comment faire comprendre la
complexité d'un cas sans se perdre dans les détails? Comment systématiser

7381

Revue Frangaise de Science Politique

sans renoncer & J'analyse minutieuse? Il I'a résolue par un. compromis gui a
Tavantage de rendre la lecture a la fois variée et constamment intéressante,
et l'inconvénient de faire perdre parfois le fil du développement, retenu qu'on
est pendant un long moment par I'exposé détaillé d'une affaire particuliére.
L'auteur entreméle en effet I'exposé synthétique et la présentation par la
méthode des cas, C'est ainsi que, sur Jes six sections du chapitre III, «Le
procés politique », cing sont systématiques, Mais aprés < Procés politique et
procés criminel» et «Le procés:pour meurtre comme arme politique >, on
trouve « Etudes de cas pour la signification de la trahison> avec une présen-
tation originale de deux procés célébres, l'affaire Caillaux ou le cas de
«<Yopposition comme trahison» et le procés en diffamation intenté par le
président Ebert contre un journaliste de droite: Parfois, c'est la majeure partie
d'un chapitre ‘qui est consacré sinon 4 une seule affaire, du moins 4 un seul
pays: le chapitre «Le “centralisme démocratique” et I'intégration politique
du judiciaire > porte presque uniquement sur T'organisation de la justice en
Allemagne de l'Est et la moitié du chapitre «Jugement par ordre du régime
successeur >» parle du procés de Nuremberg. Mais qu'il s'agisse d'exposé systé-
matique ou d’analyse de cas, jamais Kirchheimer ne verse ni dans |’abstraction
gratuite ni dans le récit anecdotique,

Le livre est divisé en trois parties inégales, la troisigme traitant de deux
sujets qu'on ne rattache pas d’habitude a la justice politique: le droit d'asile
et la clémence, cette derniére incluant les divers types d'amnistie, Qu’est-ce
qui caractérise donc cette justice politique dont le contenu et les méthodes
sont étudiés dans la premiére partie? C'est une justice ot «l'action de la
Cour est mise en ceuvre pour exercer une influence sur la distribution du
pouvoir politique ». Cette action peut étre amenée par un gouvernement contre
ses ennemis politiques, par un régime contre ceux qui le mettent en cause,
par les adversaires des gouvernants pour les discréditer, etc. L/utilisation
de la procédure est parfois plus déterminante que le contenu de l'accusation
pour savoir s'il y a procés politique (affaire Calas, affaire Kravchenko, etc.)
De plus, l'état de l'opinion, la nature de l'idéologie dominante, les mécanismes
institutionnels eux-mémes interviennent sans cesse dans I'élaboration et I'inter-
prétation de la loi. Ainsi le simple désir d'un changement constitutionne!l a
longtemps été considéré comme un délit. Dans la plupart des pays « occiden-
taux», il n’en est plus ainsi. En revanche, toute une philosophie juridique
de I'atteinte a la sGreté de I'Etat, de la subversion non seulement exécutée
mais. projetée s'est développée dans les Etats qui se veulent les plus libéraux.
Kirchheimer analyse la loi fédérale suisse de 1950. et !'affaire André Bonnard
gui en est résultée (un professeur a l'Université de Lausanne avait communi-
qué des renseignements sur la Croix-Rouge suisse au. Mouvement de la
Paix). Il s'étend plus longuement sur I'étrange situation de la République
fédérale face a l'Allemagne de I'Est, étudiant notamment les affaires John et
Agartz. Il consacre un chapitre entier 4 «la répression légale d’organisations
politiques» en partant de nombreux cas du xix* siécle pour aboutir a un
“examen serré des critéres de répression utilisés contre Jes groupements con-

782

Notes Bibliographiques

sidérés comme antidémocratiques, Dans le cas de l'action anticommuniste aux
Etats-Unis et en Allemagne, le verdict de la Cour, dans la mesure of il est
fondé sur la doctrine du groupe incriminé plutét que sur son action, devient,
selon la formule du juge Jackson, «une prophétie sous forme de décision
légale ». Les conclusions que Kirchheimer donne & ce chapitre sont pondérées
a souhait,

La seconde partie est consacrée aux acteurs: le juge, l'accusé, le défenseur,
T'Etat, L'auteur montre l'influence gu'exerce sur la justice politique la socio-
logie de la magistrature, Dans sa conclusion générale, il insistera de nouveau
sur le réle particulier des magistrats s'il y a changement de régime (il cite
Pasquier disant en 1850: «Je suis l'homme de France qui a le plus connu
les divers gouvernements qui se succédent: je leur ai fait & tous leur procés >)
et sur la notion d’ «espace judiciaire >, c'est-A-dire de pouvoir d'appréciation
laissé au juge par le pouvoir. ou par l'idéologie dominante. Le comportement
de I'accusé est surtout intéressant a étudier A propos de sa volonté d’iden-
tification 4 un groupe, tandis que le probléme de I'avocat est celui de T'identi-
fication 4 la cause politique du client, Nous ne pouvons pas entrer dans le
détail de considérations dont la pertinence et Vactuallte sont saisissantes si on
les applique a la France des années 1960,

On peut bien entendu regretter que tel ou tel aspect auquel on attache
soi-méme de l’importance n'ait pas été mieux mis en évidence. Ainsi la notion
de légitimité, ainsi Je concept de trahison. Tel ou tel passage peut aussi
paraitre insufflsant. Les quelques pages consacrées A la justice sous le III* Reich
sont bien rapides, On doit aussi déplorer I'absence de toute bibliographie systé-
matigque.. Mais il est difficile de ne pas admirer et approuver la lucidité et la
netteté des conclusions qui montrent 4 la fois la faiblesse et I'utilité de la
justice politique. La faiblesse est généralement admise. Qui ne dirait avec
Kirchheimer: « S'il est vrai que le jugement peut entrer dans T’histoire, il est
rare qu'il devienne le verdict rendu par I’histoire elle-méme >? L'utilité résulte
déja de la supériorité que la procédure présente par rapport a I'arbitraire pur.
Elle provient aussi des répercussions du procés sur l'opinion et, par contre-
coup, sur la répartition des forces politiques. La caractéristique fondamentale
de ce livre si riche et si stimulant est peut-étre d’étre vraiment un ouvrage
de science politique, c'est-a-dire de tenir compte de toutes les dimensions psy-
chologiques, sociologiques et institutionnelles d'un sujet en apparence purement
juridique,

Alfred Grosszr

WALKER (NicEL) — ale in the Civil service, A study of
the desk worker, — Edinbyfgh, the University press (1961), 22 cm,
x-302 p., tabl., pl, Index#30 s,

L'étude que vient dg“publier N. Walker représente une remarquable contri-
bution au développesfent de cette discipline que l'on qualifie non sans quelque
outrecuidance de/Science administrative. Elle montre, aprés les enguétes de

738

! Pourrrcat Justice; The Use of Legal Procedure for Political Ends.

‘ By Orro Kircunetmer. [Princeton University Press; Lon-

-" f° don:. Oxford University Press. 1961. xiv and 452 pp. (with
F index). 68s. net.]

‘Tu1s is an important book. Although much has been written on political
justice and many aspects of it have received close study I am not aware that
any full length study of it has previously been made, at any rate in English.
The book, as appears from its sub-title, is concerned with the interplay of
politics and law, or rather of politicians with the lawyers of whom they make
use for the purpose of overcoming: their political opponents. The author is
exceptionally well equipped for his task, to which he brings a wide general
culture, long experience of the working of an important civil law system (that
of Germany during the inter-war period, a time of considerable tension), and
a subsequent career of distinction as a professor of political science at
Columbia University.

Politics and justice are uneasy, indeed unhappy, bed-fellows. ‘To the
layman political justice is a contradiction in terms, and few lawyers would
disagree with this opinion. Moreover, most people would say that there never
has been a time when political injustice was more rampant and blatant than
it has been in the present century. Professor Kirchheimer’s study is mostly
concerned with the history of our own times, but his book frequently harks
back to earlier periods, even as far as classical Greece and Rome, and what
he has to say about those ages suggests that we in our time have been no
worse off, indeed perhaps rather better; for over the years methods of temper-
ing the wind to the shorn sheep have heen perfected, and have come into more
widespread use, however sporadic ond fitful this may have been. Moreover,
difficult as it may be to pierce the fog of propaganda and counter-propaganda,
the fact that the eye of the world is easily turned to any area in which
injustices are alleged to be occurring is undoubtedly not. without its effect.
‘Thus, when the International Commission of Jurists issues one of its reports
the Press coverage is very wide, and the reactions of the parties reported
upon show a noteworthy sensitivity to criticism.

In theory, political justice is concerned with the protection of the state
against its internal enemies who may of course include external foes who have
planted themselves within the territory of a state for ease of operation, In
practice, of course, a social class which has secured power, or even a set of

ee OR Ce

Toy [eg

Jury 1968 REVIEWS 457

party politicians, may equate themselves with the state for purposes of
protecting their own interests, It is naturally the second type of political
justice, in practice almost invariably unscrupulous, and often cruel in addition,
which attracts the hostility of the historian or the contemporary critic. But
actually the worst excesses have often occurred with the support of the mass
of the community at times when a state has in fact been in peril; for the
maxim salus populi suprema lew is apt to give carte blanche for oppression,
and Professor Kirchheimer gives many instances of this.

‘The analysis is divided into three major sections. In the first the author
is concerned with the actualities of political justice which in effect centre round
the destruction or weakening of opposition groups, either by bringing the
leaders to trial or repressing them, perhaps by flat-out methods, perhaps by
sapping and undermining: these latter may be administrative, but more likely
will bring in some semblance of legality, for as de Toqueville observed in a
passage of profound insight which Professor Kirchheimer quotes at the very
forefront of his work, the opinion of mankind grants authority to the inter-
vention of courts even when the substance of justice has long evaporated from
their operations.

‘The structure of state protection has varicd a good deal down the ages, but
in the era of constitutionalism it became pretty well accepted in modern states
that regard should be had to legal process, and even in the totalitarian era
lip-service has continued to be paid to this principle.

Professor Kirchheimer has some shrewd, if rather unkind, remarks to make
about the attempts of conventional lawyers to evade the issue of the political
trial by the contention that it is not to be differentiated from an ordinary
criminal trial. He contends that the identical character of the procedure should
not lead to confusion as to the objectives being the same. It might perhaps
be said that the more liberal the state the more the two types of trial
approximate, and certainly in England it is a narrow run of cases which could
qualify for the distinction, since our political trials are now almost invariably
framed under special statutes, sedition cases having become exceptional.

Professor Kirchheimer, however, has no difficulty in producing examples of
political trials from modern liberal states. ‘Thus he gives a fascinating account
‘of how Clemenceau was able to immobilise his opponent Caillaux, the chief
protagonist of a negotiated peace during the First World War, by an
accusation of treason, never of course tried out.

More generally useful in liberal states because it does not require war, or

| near war, conditions to get it going, is the libel suit, To goad a political
opponent into an action for libel is an old trick, and one for which left wing
politicians should seldom, if ever, fall. Should they do so, they will not only
imperil their own carcers, but may well prejudice the political standing of the
party to which they belong. ‘The Wbert case, fascinatingly unravelled here, is
a classical instance of this: it undoubtedly helped to bring the Weimar
Republic and all that it stood for into disrepute, Professor Kirchheimer
stresses how political propaganda can be magnified via court-room proceedings
in a mass democracy where a cheap Press is at the disposal of the politicians
conducting the offensive.

How the area of prohibited activity may be enlarged so as to bring
opponents within ‘the net of the law is shown in the next section; though the
operators must be pretty wide-awake or the weapon may turn in their hands.
This of course happened more than once with the Nazis.

Trials are not effective for these purposes unless held in public, or at any
rate partly so. And in the modern period this means on a world stage where
something may go wrong with devastating results. So on the whole the
opposition parties will be repressed by other means. How far these other
means should be legal, superficially at any rate, may be difficult to judge.

458 THE MODERN LAW REVIEW Vor, 26

‘The various factors involved in such decisions are most interestingly analysed
by Professor Kirchheimer in the fourth chapter.

In Part 1, which is the longest in the book, the author deals with what
most lawyers will regard as the most fascinating and worrying area of his
subject; that is the personal part played in all this business by judges, lawyers,
and others who are brought in to administer the so-called justice. Many
aspects of this side of the matter, which will probably not have occurred to
English lawyers, are brought out here, such as the peculiar vulnerability of
most Continental judges, whose careers are entirely in the hands of the
political administration, to pressure from that source. Professor Kirchheimer
has much of interest to say on the subject of the selection and promotion of
judges in the light of this political problem.

In totalitarian states the show of impartiality on the part of the judiciary
is hardly maintained, and it is here where “democratic centralism” is the
slogan that the most obvious injustices are apt to occur. Nevertheless, the
situation is only superficially simple, and much light is in fact thrown upon
“the nature of law and the judicial function” even in the unsavoury
surroundings of Nazi and Stalinist repression.

In this section of his book Professor Kirchheimer devotes a great deal of
space to a rather elaborate discussion of the legal activities of successor
régimes. The increasing importance of the political trials held by victorious
nations after wars, or by successful parties after civil wars, is in itself a
recognition of the place which justice holds in the minds and hearts of men.
Suecessor régimes have been sensitive to this, but they are even more sensitive
to the need for the maintenance of their prestige. This means that the trials
must result in convictions, at any rate in the more important cases, There
has of course been a flood of argument on this subject since Nuremberg, and
Western writers have tended to be apologetic about the whole business.
Professor Kirchheimer in a moving passage puts the subject back where it
ought always to have been, in the sphere of justice. We are searching, he says,
“for a fundamental notion to which all groups and nations must at least
submit, if not always subscribe. Respect for human dignity and rejection of
the degradation of human beings... .” All that he has to say in this chapter
is worthy of close. attention.

Fascinating and thought provoking as are the earlier parts of this book
it must be confessed that they make gloomy reading. In the third part we
get some relief, for Professor Kirchheimer here discusses those elements which
have from early times acted as a break in many of the worst periods of
political injustice. I hope that I shall not be regarded as cynical when I
mention that this is very much the shortest section of the book. ‘The most
important of these, legally speaking at any rate, is asylum. And it is
characteristic of the author's wide-ranging scholarship that he introduces this
subject with an incident from Herodotus. Asylum was of course well recog-
nised in classical times, but legally it has always been a “perplexing subject.”
Recognition as a “right” in the Universal Declaration of Human Rights
possibly enhances its prestige as an institution, but it may be doubted whether
this has been of any real help to any one refugee, and as Professor Kirch-
heimer himself points out, changing concepts in relation to extradition have
in the atmosphere of ideological struggle and the cold war done a great deal
to weaken the value of asylum. In Great Britain, which formerly prided itself
upon being a refuge for the politically oppressed, political defences to extra-
dition applications seldom scem to succeed, and one fecls that the old liberal

ttitude of our courts has been a casualty of the cold war, if indeed it had

+ become moribund in an earlier generation.

‘Slemency is of course another possible outcome of a political trial, and does

ct occur from time to time, though it must be confessed that it seems
likely to occur on the other side of the iron curtain than in the West.

Jury 1963 REVIEWS 459

However, it is not at all easy to assess the genuineness of the mercy element |
in the release by the Russians of such offenders as Gary Powers: clearly the
political propaganda value of clemency in these cases is high, and Communist
states seem to be much less merciful to their own nationals, On the other
hand, it is unfortunately clear that from Sacco and Vanzetti to the Rosenbergs
and Morton Sobell the record of the U.S. administration has been of the
merciless type which one associates with fear, and a haunting doubt of the
moral validity of one’s case. Homo hominis lupus,
©

cA

Tutane ban Qovicw-
Apt 1964

1964] BOOK REVIEWS 617

PoLiTicAL JustIcE: THE Use or LeGAL PROCEDURE FOR Po-
LITICAL ENDS. By Otto Kirchheimer. Princeton: Princeton Uni-
versity Press. 1961. Pp. xiv, 452. $8.50.

In the classical sense all justice dispensed by state authorities
is political justice. But that is not the way in which the term is
used by Otto Kirschheimer, professor of political science at
Columbia University and member of the graduate faculty of the
New School for Social Research. In this study he is concerned
with “political justice’ as conceived traditionally by European
writers, namely, as a shorthand way of describing the employment
of the machinery of justice, but especially trials, to protect or
advance the position of those who hold power within the state.
His method is comparative and analytical, with materials drawn
from Germany, East Germany, France and Italy, and with slighter
attention given to the experience in the Soviet Union and the
United States. The author’s range is wide and deep, for although
his primary emphasis is on post-World War II developments, he
draws data from earlier periods in history in order to show more
clearly the distinctive qualities of political justice in the modern
era. The wealth of materials concerning political trials in the
modern European setting, much of it unavailable to non-specialist
American readers, would be sufficient in itself to stamp this a
work of importance.

But perhaps the very richness of materials, the frequent inter-
jection of unfamiliar references, as well as a rather formidable
literary style, will deter many readers. Perhaps too, the author’s
high degree of success in maintaining a value-free, almost cynical
approach to various political-legal issues will tend to weaken the
book’s overall impact for most readers. There are few exceptions.
Kirchheimer concludes, for example, that the Nuremberg trial of
Nazi leaders, while deficient in a number of important respects,
represented “the feeble beginning of transnational control of the
crime against the human condition” which “raises the Nuremberg
judgment a notch above the level of political justice by fiat of a
successor regime.” (at 841) Such judgments are rare in this book.
For the most part the author is content to describe the forms of
political action directed against those who allegedly have posed
threats to the security of the state, taking note of the position of
the various participants, the defendant, his counsel, the prosecutor
and the court. Only rarely does he touch the crucial question of
whether a proceeding was necessary in order to protect a legitimate
interest or was fair in form and in result.

Perhaps the very term “political justice’ is unfortunate be-
cause too broad and heavy with invidious connotations, When, as
used here, it encompasses communist trials in a system where

618 TULANE LAW REVIEW  [Vol. XXXVIII

most crimes are political offenses, trial of former political leaders
by successor regimes, as in the international proceedings at Nuren-
berg, and a wide variety of other offenses ranging from trials of
assassins to Smith Act cases in the United States, there is a ten-
dency for the important and the trivial to blur, and for defensible
judicial action to become confused with proceedings that have only
the faintest association with a system of justice. For it must be
true that certain actions taken in defense of the state are ap-
propriate and just. If not, the whole process by which a society
seeks to act through political instrumentalities becomes a gro-
tesque game and the concept of law is rendered meaningless. The
liberal tradition of the Western nations envisages a wide area of
freedom to protest and to work toward peaceful replacement of
a government in power and significant changes in the political
system itself. The efforts in American law to devise a suitable
test distinguishing permissible political action from that which
need not be tolerated by the state is a familiar story. It may well
be that the line drawn against political agitation by the Supreme
Court in 1951 marked an unnecessary interference with a political
force that has never posed a serious threat to our political institu-
tions. But even under the clear and present danger test it is pos-
sible to envisage situations in which a larger and more forthright
group than the American communists have been in the past might
be deemed a sufficient threat to justify conviction of its leaders
or suppression of the group’s organized activity.

Clearly a state is under a duty to oppose assassination and
violence as an accepted form of political protest. If an unjust or
corrupt regime is to be overthown, however, how can it be accom-
plished save by resort to violence? Is defense by the state justi-
fied? In positive law the answer must be affirmative, but relying
on the judgment of history to vindicate acts that superficially
viewed appear unlawful, the revolutionary group appeals to a
different and higher law. And thus, many revolutionary efforts
will be judged not merely illegal but unjust in their attempt to
destroy a legitimate government.

To an American reader, the frequency of examples of “politi-
cal justice” in continental Europe in the modern era may give
cause for excessive self-congratulation. It is true that in Great
Britain during recent centuries and in the United States there
have been relatively few occasions when the state has been seriously
threatened by political opponents, at least if one conveniently
overlooks the events of 1861-1865, although the generosity of Lin-
coln and Johnson in dealing with defeated leaders of the Con-
federacy contrasts sharply with the harsh reaction of political
leaders in comparable European episodes. But it has been the

1964] BOOK REVIEWS 619

lack of serious internal threats that has made possible the rela-
tively clear British and American record. British repressive ef-
forts toward political enemies have taken place in territories far
removed from the homeland. And as our handling of Japanese-
Americans in World War II showed so well, we are not too scru-
pulous about the course of justice when a danger is thought to
exist. But fortunately we have not been a divided nation, apart
from the Civil War trauma. In short, we should be grateful for
the various circumstances which have made possible in the United
States and modern Britain thus far a continuing consensus on the
goals and values of our system. The adherence to “rules of the
game” which require our defeated parties and their leaders to
accept the result of free elections arises from the general health
of a free society, rather than some special wisdom or sense of
restraint where actual or potential political offenders are to be
dealt with. Kirchheimer’s study should, at the least, make us more
alert to the dangers of misuse of justice in the United States to
destroy the political and social enemies of those in power. The
vivid history of “political justice” in seventeenth-century England
shows how deep-seated political and social divisions will inevitably
have an adverse effect on the administration of justice.

One further thought arises from a reading of Kirchheimer’s
interesting study. Perhaps the comparative method which is so
fruitful when employed in a limited way is less successful when
employed on a large scale as in this study. By making impossible
any delineation of the deeper strands of historical and cultural
development, and analysis of the complexities of social, economic
and political life which distinguish one. people from another, the
reader gains only a superficial impression of causal factors. Only
readers with an intimate knowledge of the history and social in-
stitutions of the nations whose experiences with political justice
are described in this work can appreciate fully the significance
of many of the author’s subtle insights. On page after page too
many judicial events seem to happen almost by chance because
the causes are too deep and complex to permit detailed explana-
tion. It is because he touches on so many themes that go to the
very heart of political philosophy that one wishes the author had
permitted himself a somewhat fuller role as political analyst and
commentator. But no reason exists why the reader should refrain
from assuming that role, stimulated as he must be by this wide-
ranging account of the frequently tragic and unjust efforts to use
the forms of justice to achieve political objectives.

WILLIAM M. BEANYt

{Professor of Politics, Princeton University.

spécifique et une continuité certain, par-
ticulitrement en ce qui concerne ley deux

grands principes de base du Iéninisme, &
savoir la domination du Partixsur Les
masses, qui a comme but final la révolu-
tion mondiale, et la négation de la Liberté
individuelle telle qu’elle est comprise en
Occident, avec son corollairs économi-
que: Parti contre

la lutte continuelle du I
Pentreprise privée ct contre Paccumula-
tion de la propriété privée.

Labedz ot son équipe @experts parlent
trop bridvement de cette continuiré et de

cote logique spécifique du marxisme-
Vainisme officiel ; par contre ils nous
cotretiennent abondamaene de Pautre
aspect de la question, auquei nos obser

ateurs des problémes sovictiques accor-
ent ¢ peu dattention, & saveir les
irstions » de Ja pensée merisc2, done,
ous affieme Ia pritre dinsdrer, Labedz
est un gminent spécialiste. Ces « gira~
“ons » sont bien entendu le signe du risque
court Ie marxisme moderne
incapable, en dépit du brio
ses promoteurs, de se dé-
vent des contradictions de
que.
vecture compléte du Révi-
sionnisme — gue doit entreprendre vout
écudiant sérieux du marxisme-léninisme —
les restrictions imposées dans le passé aux
philosophes soviétiques et maintenant aux
philosophes des pays satellites, la série des
chasses aux sorciéres idéologiques, des
purges et des auto-accusations philosophi:
ques deviennent compréhensibles. Aussi
compréhensible est la dévermination des
idéologues soviétiques de coller 4 Lénine,
méme si cela signifie en méme vemps
Vabandon de Marx. C. Olguine

sadilénia
seellee

or’s une

Orro Kircunzmer : POLITICAL JUS-
TICE. The Use of Legal Procedure
for Political Ends. Princeton Univer-
sity Press, Princeton, N. J., 1961,
452 pp. "

Comme son titre Pindique, le tre
@Otto Kirchheimer, Justice politiaue, vst,
en méme temps, une étude juridique et
un traité politique consacrés aux particu-
Jarivés des crimes politiques et aux diffe
rentes fagons de les combattre. Ce i-vre
est profondément actuel, tant per ‘on
sujet que par son contenu. La vaste «cu-
dition de Pauteur Iui a permis de « m-
duire son investigation sur la base on
seulement des événements des dix der-
nites années, mais encore de ceux ¢'un
passé lointain. Le lecteur peut ainsi c.m-
parer et apprécier la pratique de ce. .ssé
Jointain avee les moyens dont on use de
nos jours pour lutter contre les czi:nes
politiques, avec ou sans Paide des 5° oa-
naux.

Citoyen allemand, Vauteur est pas. cu-
litrement familiarisé avec la pratique de
la justice politique en Allemagne, aon
seulement sous le régne du nazisme, .rais
aussi, apres la guerre, en République Dé-

ocratique Allemande. Ne sachant > le

russe, il n’a inclus dans son trava.i -rés
subscantiel aucun chapitre concerns: la
justice politique soviétique, mais parle
coap de PEtat totalitaire en ostral

ve son systéme de répression des ospo-
ons politiques. Cela le dispense un
examen détaillé de la pratique judicinire
soviétique, d’ailleurs bien connue pour
avoir été déA abondamment décrive, Ce
que nous apprenons ici de la pratique
judiciaire en République Démocratique
Allemande est parfaitement suffisant pour
nous permettre de juger le systtme judi-
ciaire de n’importe quel pays au pouvoir
des communistes.

Comme le montre Kirchheimer 4 bon
droit, c’est sous Staline, 4 plus d’un ticre,
que Lasservissement de la justice 4 la ré-
pression des oppositions politiques at-
teignic son point de perfection. Mais la
Yougoslavie aussi a connu de semblables
procés, et ceux de la République Démo-
cratique Allemande ‘sont des modéles en
matitre de préparation dune affaire ob
la sentence est fixée d’avance.

Au surplus, Pauteur n’a pas voulu ré-
diger un traité dirigé spécialement contre
les régimes communistes. I] cite maintes
fois les excts imputables aux oppositions
religieuses et raciales en Afrique du Sud,
en Algérie, en Espagne, en Allemagne,
etc. IL entend montrer combien il est a
faste, moralement et politiquement, de
ruiner Pautorité de la justice, en trans-
formant un procts judiciaire en spectacle
politique, en privant le juge dune libre
appréciation des preuves, en limicant le
choix des moyens de défense.

L’auteur montre en outre que le juge,
dans les procts politiques, est moins le
«gardien de la loi» qu’un représentant
loyaliste du pouvoir. Plus étroitement il
est 1ié au pouvoir, plus fid’lement il re-
présente les vues du groupe ou du parti
dirigeant, et plus la sentence est prédé-
terminée (p. 176). LA of le sort de la
majorité de la poulation est réglé par une
minorité insignifiante, il ne peut y avoir,
antre le juge et des individus en réalité dé-
pourvus de droits, de relations déterminées
par le principe de Pégalité de tous de. ant
la justice (p.210). Une justice de classe
ne saurait étre impartiale (p. 217).

Les remarques de notre auteur sur le
rble dela défense dans les procts politi-
gues sont également trés intéressantes,

L’avocat ne se trouve pas dans une
situation qui Poblige & prendre la défense
de Vaccusé comme le médecin apporte ses
soins A tout malade. Le défenseur ne peut
pas perdre de vue que tout ce qu’il dira
en faveur de Vaccusé laissera inévitable-
ment lirapression quwil est solidaire de son
client. Lénine, ainsi que le montre Kirch-
heimer, recommandait aux défenseurs po-
litiques de sefforcer de détruire par le
ridicule les arguments de accusation, en
laissant & Paccusé le soin de défendre ses
actes (p. 245),

Tout cela montre que le crime politique
est une sorte particuliére d’infraction. Les
codes et la recherche théorique les traitent
A part.

5h

Le livre de Kirchheimer n’est pas A pro
prement parler une étude juridique, en-
core quelle puisse etre tres utile aux j:
ristes.

Le mérite de Pauteur est @avoir nm
Paccent sur les doutes qui ne peuvent ps:
ne pas naftre quant au caractére crimine!
dactes qualifiés Phostiles A VEtat et
poursuivis comme tels, mais qui, en réal
té, ne sont que des manifestations de mé¢-
conrentement 4 Pégard d’un régime. Est-
ce un crime que d’agir en faveur d'un
changement de régime, que lutter pour un
droit nouveau, que de critiquer le gouver-
nement ? Od est la frontiére entre Poppo-
sition légale et cette «lutte pour le droit ».
que le céldbre juriste allemand Thering
considérait comme Je facteur naturel de
Pévolution du. droit ? Telles sont les ques-
tions posées par Kirchheimer (p. 31 4 35)
ou qui découlent des faits produits +
éclairés par lui.

Si Kirchheimer connaissait la littérature
juridique russe, il pourrait trouver dans
les travaux des représentants de Pécole
psychologique de droit, chez Petrajitsky
(Théorie du droit et de la morale) et chez
Guins (les Idées modernes dans le do-
maine du droit) bien des points communs
avec ses propres considévations sur le ca-
ractére « conditionné » des normes juridi-
ques, sur les « époques de transition » et
sur Pévolution des notions d’« intérét » et
de «volonté» du peuple. L’enseignement
de V’école psychologique, qui montre com-
ment se crée le droit « intuitif », en désac~
cord avec le droit « positif » en vigue
(Petrajitsley), et comment A partir Pune
foule de convictions intuitives concord:
tes nate une nouvelle conscience juridique
(Guins), trouve, 4 son tour, une confir-
mation dans les données de Kirchheimer,
ainsi que dans ses généralisations. La né-
cessité urgente de réformes devient par-
fois si évidente que seule Pissue — le suc-
cés ou L’échec — de la lutte pour ces ré-
formes peut, dit Kirchheimer, résoudre la
question de savoir qui a raison et qui a
tort (p. 240). Quand les infractions 4 la

452

loi deviennent trop fréquentes, le pouvoir
wpe peut plus les chitier coures et ne pours
ait. plus que ceux qui se préparent Q
T's insurrection ouverte » (p. 241).
Comment sortir

des contradictions ct
aus conilits Popinion sur Jes voies bonnes
ca mauvaises menant & la réforme de
Vordre existant, sur Ja nécessité ou la
vnoeivité des projets ct programmes PYOPO~
sés? Pour cela, il suffit de confronter les
régimes totalitaire et démocratique. Kirch-
Hemmer définie le premier comme un Sy5-
ime ob Ja libre émulation des idées et
‘jer forces sociales est frappée d’anathtme,
ot une planification et une direction cen-
tralisées remplacent les associations |i
secs hors Ja loi (p- 295). Le droit se
wransforme en instrument du pouvoir et
chaque individu doit conformer sa vie et
son activité au plan imposé Wen haut.

Qu’est-ce que ta loi, quelles sont les
sousees dus droit? En République Démo-
crarique Allemande, dont le régime est
Sieé par Pauteur comme moddle de sys-
rame totalitaire, le pouvoir exécutif consi
Gore la loi inscrite dans Ja consehati a et
wimporte quelle circulaire administrative,
wimporte quelle résolution des organis-
nes. dirigeants, wimporce quel discours
Pun chef du ségime, wimporte quel at
tide para dans Forgane officiel du Parti
vee n’importe quelle conférence enplici-
Fant quelque point important de In doc-
trine communiste comme également impé-
atifs (p. 297). La légalixé, nous div
Paureurs représente, dans ces conditions,
une combinaison de la Joi ec d’une inten-
tion. Le juge mest qu'un fonctionnaire
entre dautres, et il doit, comme tous,
suivie serictement & la fois les ordres et
les « signaux « donnés den haut et mon-
trant la direction politique.

‘Au contraire, un Etat fondé sur Je droit
se borne & contenir les oppositions dans
des limites garantissant Ja sécurité et
Pordre. Leopposition bénéficie de la pro-
tection de la loi, mais par 1A méme s'im-
pose & elle 1a conscience quelle doit rester
dans les limites de la Joi. La constitution

de la Cinguitme République donne ax
présidene de la, République le pouvoir de
retire le parti communiste hors la loi,
mais de Gaulle n’a pas usé de ce droit.
Le respect de la légalicé par Pune de
parties incite Dautre A xester lle aus
dans le cadre de la Joi, Au contraire, le
violences commises cn Algérie et en Fran
ce par PO.A.S, ont provoqué une inéyi-
table réaction de contre-terreur, La jus
flee politique, dit Kirchheimer, pour co”
clure, sert les intérdts de Ja politique, ms

ce service peut prendre des formes dive:
ein régime toralitaire, le juge, devas
une affaire politique, cherche la décisior
‘Kairde par le pouvoir, alors que le juye
Pun Eat fondé sur Je droit garde ja
liberté de ses mnoyens @action et sinspire
non de ce qui est nécessaire au pouvoir
x in moment donné, mais de ce qui peu
ater une décision valable aussi pow
Pavenit (p. 424).

Le problime des délits politiques «+
complexe, cat 1a politique fait irrapu
Sane le domaine de la jurisprudence cs
que fois qu’une affaire touche la défens
du régime existant et Jes pouvoirs qu:
représentent. Kirchheimer a raison ct
joindre & son livre deux chapicres spécinux
ec tds substantiels qui traitent du droit
‘Pasile, dont Pusage est si frequent de nes
jours, ainsi que du droit de grice ou
smamaistie, qui sont, dans une cereaine
mesure, des compensations au systtme de
repression des ennemis dun régime exis
rant, Mais il manque X son livre certat
principes conducteurs de lege ferende
Prpmair pu souligner que ne peuvent c-
meurer impunis des crimes contre Jes Luis
provectrices de prineipes moraus ¢s.0-
tiels, comme celles qui poursuivent Je vere
rorigme et la trahison 5 mais qu'une oy -
Siion qui ma pas recours A la fore te
peut, en aucun cas, Gere carsidérés cin ne
tun crime ; que le systéme du parti uni qe
est la base du régime totalitaire antide 0-
cratigue, violant le droit du peuple es
primer librement sa yoloneé, e ques ¥ la
situation jnternationale, aucun Erar o¢

peut retrancher derridre sa «souveraineté »
cr prétendre échapper ainsi A Paction des
organismes internationaux, quand il se
rend coupable de terreur massive et de
génocide dans la poursuite dennemis de
classe, ou @adversaires politiques, raciaux
ou religieux.
G. Guins

Cuarns Warren Hostizr: TURKEN
UND SOW JETS, Die historische Lage
und dic politische Bedeutung der Ttir-
ken und der Tiirkvélker in der heu-
tigen Welt, Alfred Mevzner Verlag,
Francfort-sur-le-Main, Berlin, 1960,
264 pp. et 5 cartes,

Parmi les travaux scientifiques récenss
se trouvent des études particulitrement
incéressantes et précieuses, s*imposant A
Patcention du public et de la critique.
Crest sans aucun doute A cette carégorie
qu’appartient le travail du cherchew amé-
ricain. Charles Warren Hostler, publié
pour la premigre fois en anglais en 1957
& Londres (Tiirkism and the Soviets, She
Tinks of the World and their Political
Objectives. Georges Allen, Led.) ex Yon
doit se féliciter de Vinitiative de Péditeur
allemand 4 qui nous devons la traduction
allemande qui fait Pobjer du présent comp-
te rendu,

Au cours des dernitres dizaines d’an~
nées, la science mondiale s’est enrichie de
nombreux travaux concernant les peuples
vtirks et la situation de ceux qui vivent
en Union Soviétique. Il suffic de rappeler
Jes ceuvres des savants turcs suivants:
Khalil Inaltchik, Akhmet Temir, Baymir
za Hayit, Abdullah Soisal ; celles des sa-
vants occidentaux que sont G. Jischke,
B. Spuler, J. Benzing, G. von Stackelberg,
N. Poppe, W. Dubrowski, A. Bennigsen et
maints autres qui ont apporté leur contri-
bution 4 Pécude du monde tiirk passé et
présent. Cependant, la plupart des tra-
vaux récents en ce domaine sont consa-
erés 4 des problémes ou A des secteurs
particuliers du monde tiirk : 4 la Turquie

153

proprement dite, au Turkestan, A PYde
Oural, au Caucase et 41a Crimée ou ¢
core X des questions historiques spécial
Parmi les travaux relativement peu now
breux et qui embrassent des ensemb'x
assez larges du monde ture, il faut acce-

der une attention particulidre aux 1:
intéressantes évudes de G. von Mei
Der nationale Kamp} der Russlandt::
(Berlin 1936), de Zeki Velidi To: :
Bugiinkit. Tiirkili (Tarkistan) ve yin
taribi (Istanbul 1942), et de R. Pipes :
Formation of the Soviet Union. Con:
nism and Nationalism. 1917-1923 (C+
bridge, Massachusetts 1954). L’intérd:
ticulier du récent livre de Hostler com: =
sans aucun doute en ceci quill s’effo
présenter au lecteur un tableau: lar
complet du passé récent, de la siteacion
actuelle et de la signification politique de
vout le monde tiirk @aujourd’hui. Lun
des critiques de cette ccuvre a eu raison
de faire remarquer quwil s’agit 14 de «la
premiére et unique étude résumant 2ca~
semble de la situation» du monde «:
sidéré,

Le livre comprend cing chapitres.
le chapitre introductif, Pauveur >
attention du lecteur sur Pimporta
mondiale du. probléme que souléve ie
monde tiirk, lequel occupe une surface
immense, des rivages de la Méditerranée
et de la moyenne Volga, & Vouest, aux
frontidres de la Mongolie, a Pest, et fait,
selon les propres termes de Hostler,
P «objet du grand litige géopolitique »
de notre temps. Il est intéressant de f:
remarquer que l’un des critiques anglais
de oeuvre de Hostler a souligné spéciale-
ment Pimportance économique et stratési-
que de cet espace dans la politique m
diale actuelle. Dans le domaine politico-
national, les moments les pins rem
quables du probléme pantiirk furent, 2a
xx¢ sitcle, la naissance et le dévelon: s+
ment de Vidée de tiirkisme, le mouves + 1¢
de libération d’une Turquie nouvelle, 1 1-
tionale, avec A sa téte le grand Avati!.k,

Be

BOOK REVIEWS fj 319

F
Merarnysix, By Emerich Coreth, S.J. Innsbruck: TyroliaWerlag, 1961.

Pp. 690. Sfr. 33. fi

This is a brilliant attempt to re-establish metaphysics ag the “science of
being.” Beginning with the scientific evidence already/ contained in the
very capacity to ask what being is, the author handles/with assurance the
insights into this question contributed by modern phjlosophers from Kant
to Husserl and Heidegger. Thus, though his thinking’ is basically scholastic
in orientation, he seeks to incorporate into it the bgSt efforts of “transcend-
ental” thought, The result: a remarkable methodo}ogical rigor in reflecting
on the evidence from beginning to end leads onge more to the conclusion
that metaphysics finds its ultimate foundation in/the Being of God.

Fordham University. Quentin Laver, S.J.

Poxirrcat Justice. The Use of Legal Procedure for Political Ends. By
Otto Kirchheimer. Princeton, N. J.: Princeton University Press, 1961.
Pp. xiv, 452. $8.50.

When judicial authority is used to tip the scales in situations of political
equilibrium, the concept of justice is found in the most ephemeral of its
divisions, Traditional categories of commutative, distributive, social, and
legal justice embody strict moral implications in man’s societal life, but the
purpose of the phenomenon which the author describes as political justice
is pragmatic: the widening of the scope of man’s political activity by enlisting
the services of the courts in behalf of mainly political goals. The controver-
sial Nuremberg trials and Isracl’s dramatization of a tragic cra in Jewish
history, uniquely staged by an Eichmani trial, mark the timeliness of this
scholarly book.

The first of the hook’s three parts treats principally of the causes and
methods of a state’s legal protection against dissenters, The author presents the
notorious “L’Affaire Caillaux,” the treason charge levied against a French
statesman by his political opponents because of his advocacy of a negotiated
peace with the enemy in 1917, The trial of Archbishop Stepinac in Yugo-
slayia and the use of the courts to further the state policy of anti-Semitism
in Nazi Germany or race superiority in South Africa are some of the other
well-documented examples. We are reminded also of the criminal syndical-
ism laws of the 1930’s in the United States which were used to counter
incipient miners’ unions. And of course, we have the Alger Hiss trial, where-
in certain fragmentary acts of the defendant were brought to light in order
to create an unfavorable image based upon his political and ideological be-
liefs.

In the second part of the book dealing with the dramatis personae of the
phenomenon of political justice, the author points out the complexity of the
judge’s task of individualizing the norm in conorete case situations. For
norms, we are told, are not meant for eternity, and those with which the judge
must work are gauged to long-term community needs, individual circum-

320 THOUGHT

stances, and “specific sociopolitical configurations of the age.” One wonders
if this is a jurisprudential concept somewhat similar to that of J hering, based
on a morality of interests; perhaps such a concept would be more at home
within the corpus of doctrine attaching to the sociological school of juris-
prudence identified in this country with Roscoe Pound.

The defendant in the political trial usually has considerations at stake far
beyond that of a favorable court decision, Such considerations successfully
promulgated are exemplified in the trial of Jesus before the Sanhedrin and
in the classical trial of Socrates, while unsuccessful promulgation is evi-
denced in the recent failure of American Communists to win popular appeal
through the Smith Act trials. We should not forget, however, that the bumpy
road from the courtroom dock to national leadership is a well-traveled one:
De Valera, Gandhi, Nehru, and countless Soviet revolutionaries are but a few
who hear witness to this fact.

The difference between the responsibility involved for political-military
failure and for inhuman conduct must be recognized in what the author
terms the “trial by fiat of the successor regime.” Such was the Nuremberg
experience, and more. With all of its insufficiencies it was “the feeble begin-
ning of trans-national control of the crime against the human condition.”
We note with the author that the charges preferred at Nuremberg for the
most part were not charges of crimes against humanity, but were charges of
war crimes, similar in many respects to other common crimes.

The final part of the book has to do with the legal devices of asylum and
clemency by which the impact of political justice can be modified or even
frustrated. ‘Their names may differ over the years, but we have always with
us the expatriate, the émigré, or the refugee.

In describing some of his specifications of justice it would seem that the
author has assigned an enlarged meaning to the adjective “political.” Never-
theless, these specifications provide valuable insights into the nebulous and
neglected political aspect of jurisprudential study.

Weston College. Franx B. Hicers, S.J.

We still want to believethat the world 1s making progrees
towards: Liberty joauali ty and fraternity» Secent events in Bpain
and Turkey (umt=to-mentisn.£sanes)imangs+—leetensna itor):
somehow shake the firmness of this bollef in steady progress:
dven in the Yeetern world, the rulors seem to find the Judges
whe deal to the oppositian euch regards as the rulers deme
ands

The use of legal procedure for political ends ie doseribe
ed impartially,for different historical periods and different
political systema, «“but not the less frighteningly, by Otte
Ktrchheimerethat a professor on one of Smerica’s leading und ves
ersi ties (Columbia) yand "rinceaton University Prees,should wish
to aoquaint the reader in the United States with the links betes
ween polities and legal proeedureymight surprise nonsAmeriean
readete.Sut the United States nat lesefhan, older qountriee,
have a long histery of politioal killings and political justie
sotin a cotebratead fight between Republicans and Demoarats,

‘Indiana refused to extradite the Republican canvidate for Gove
arnor of Kantuckyscharging the state of Kentuoky(contredled by
‘the Democrats with political abuse of juetioe.But ether
“SRRYORs within and without Amarica, have mot always pold ae
much attention to thé right of asylum for today's polibieaL
minority(whe might ba the judges of tomorrow).

The Jewish reader,and particularly the Teraell, gannet
help being Frightonadpy Kiechheimerte impartial and impagsive
record of the past,em particularly the recent paste We knew
“very well how tho National~Socdalist regime succeded in
making the gourts cone. ay Tene eS the terror maghinepsem-e of a
us even Know thers Egeemen Judges ‘Cited cunsiotantly tO appease
the terrorseven the Welohsqerieht guccesded to rule in favour
of «a Jewish doctor's claim,as late as Yecember  1944+)But
ether counteias' Lugubra recorde=ace is leas well knownsVery
‘feu, leraelis jew en holidgy in Guitzeriand, know that the 5utes
government ayoeu on the Nazis to institute precedures by whieh
pagsperte of German Jews were markede-thus fx » Jews in queet
of aay dum could befturned back at the frontier whilet “Angan"
cashsoarrying &xmuxax tourists were very weloome to Swiss
resoktss The Netionale8oelaliste, after all, had theloxample
of Guar Wicheles who granted free pardens to the murderers 0

qarrenament—m-9 bt beats Po \owadt he Swiss example when Real
Stalin ordered the farnible netuen to Germany of Gommunies
refugees (Mardgarate BubersNeumann has described ‘Ghis exe

perience erteh enabled her te compare German with Russian
conoantration camped.» YF course, later Switzerland and Spe
Spain followed the Swedieh example dn Budepest when thay
distributed entry permite amongst Hungarsan Jews saving
tens of thousands frem the extermination campes thete
action, as the Vatican representative infudapest expressed
the Pope's view at that hea Maat motivatad"by a
false aenogor compassion",
Professor Kirohhedmery by reminding us of recent hiebery,
net only emablea his Israeli readers to keep their memem
ries intaot(ue are all intent on forgetting). ter Vie book
might wkee serve as guide to the perplexed stetusman,when
the right of asylum ¢omes up again fer discussionelt te
customary new to sae England as a decadent empire,unable
to deemed: tts sebairtiehed racerd of the graat defender
of the oppresseds, Yat, whan the United Stateo demanded th
axtraditian of a Germea Jou senamxbioa sus cassideered of
radical views;the British magistrate refused to enters
tain the actien,in the more recent extradition caeay,
Justices Mecatta at least enabled the Jeyish prisoner te
apply to the courts in Londen(he had net been allewed te
bring hie casa befere the Jerusalem courts) >
tn this regardylevaelyand particularly its eee eee!
Me ad a4 remindertweak nations must rely en “oie eens P
ninorttios shi bertiburesty the vight ef asylum, Strangee
ly enough, israal tonk its cue from Swiss and Viehy pragti=
ue rather than the United %tates or Englandtin the resent
d&scuseions, neither GaEisler's case nor Medina vs Harte
manns260 F 2d 5S69gwas queted by the seuexnmante Mer eee
ds recalled that the United States refused extradition of
the Creat Minister of the Interier, responsible uméer—
Arbe-Pavettey for the mass murder of Jews and -otter-nmine
ge Sorba aliketthe political character of these murders

wy State
was afficmed,and the MEP Poopona ite protected against

3 coe

the Jugoslav government;Karadzole ve Artuoovie, 335U.%, 393

Kirchheimer's treatise, evaver, was written befere
the Soblen case shook liberals everywhere whe-hed-SesiT
sho—lseaeli—gevernanent—ae—their-naturet-akty>s Still,seme ef 45
references to Jerael ace worth remembering’ Professor
Kirchheimer, writing before the Eichmann triad sie opendy
critical pfrisreet—tr—the-Eiehmann-nase:" a consalous
effort to use the terial form for purposes of internal
mobilizatian","an effort to enlarge the effeotivemess of
political action by resart to the courts".A German rem
quest for fichmann's extradition(which would have saves his
life ) would have “been amply justified on of legal and
mor al grounds", Bf=enerss; Phe views of nel
GLB TE Fao over by pracheal ger vwe sheuld
not forget eae many Geren Jewish voices sifvere highly oritioal
of Qsrael in this outetanding casesHannah Arendt is enly
one example for ths attitude of thr progteavive Ferret
The image of the young state in the ayes of the intellige
entsia abroad te pawsk of gome importance (possibly as imps
ertant as ite imaga in the eyes sf “fereign hankergh

POLITICAL DUSTICE.The use of #B8Fteewk procedure for p
political ende.« By Otto KIRCHHEIMERs Princeton University Presas

\

\
\

at,

Political duvtioe: The Use of Legal Provedwe for Political. Eade. By
Otte Kivehbeimer, Princeton, Nev Jersey: Prineeton Univerality Krave,
196. Pp. isa. 88.50.

This book le o definibive stwly of the use of the Legal progeaa by
‘tim stete againet individuals dn situations which ental a high deeree of
values of & polliles) character. “Sourthdng ip called politodeal, if kG te
thought to relete in a parbloulacly dnhenalve way to the iaberestie of the
conmund.ty, Thie yeviever has pub the meaning of the tarm political,
sa follows: “As the iotenelty of attechnent of the asters in a situation
of confides to the competing values involved therein Increasas and the
vember of agbers she the secleby who eve Lavolved ty euoh value conflict
inereases, vhs Likelihood willl Inorease of the characterization of the
aiiueation as ona of & pelibleal, vathex thea a heal, natwwe . « . When
coatlies In a seelety iavolver competing group demande based on incempatinie
values held by such groupe, tte vesclublen da typleatly the teak of the
political process and institutions, rather then the Iegal.® Ta the view
ot dustice Jeckvon, decimlens whieh ave “wontided to the polities! departments
of the govexmment . .. ave delicate, complex, and involve large elements of
prophocy . . » and should he wodewteken only by thowe dirvactly responelhle
to the people whose welfare they advance ou dmpeyi.."3

The polities twilel, davelves the prosecution hy the state ef ane or
wore individuels for the aumdieaton of omiminal offenses, The offennes
may be either coumen ovine or eximinal acho diveched againat the whobe,
euwh ae trenson and seddiidon. Modern decurluy Legislations seake “he
probeot the politidal ondex from any Intellectual, propeginilat, and
eapeniolly exgeniaing asbivity directed toward revelubton . . ./ Whe sven. of

~ Bw

genuine polloleal witlolem ds overlung by cloule which hide the Light
seperating feck, foney and wieh. 24 da seh aaoy te disentangle the components
aml isolate the maldadoucly slanterous contwlbution. Many a recext ebetute
hea ignored the GUMieulty, subjecting legitimete eribielen te pualiive
provistone.*

the political. trial, ae an iuebvumenl for scbleving end preserving
polibled! outhomtty, beave on ineident Loose feo the historical sontoxt
in whieh it was dathewinad and tame the “strongest spotlights on 1b, to
Aivelose ita minulest deball . . . Bhe pit te rasonetructed for the eahe
of the future ea a ponethle weapon in the habia fer poltiless, domiavtion. °
Tha trial vequives & "segment of hishory” to be rewonetructed, Although the
pagh megmenh la pert of "a st. presmmt contiieb,” the Jwige te allowed
“to Gevegerd ite presen) elemnte and treat i) euelusively as a pach
owt." Bub any tried estalle rik that doe eaconetyuetion of a past event
‘through the testiaony of witneseqs whl, nob teke place as anwhledpated. Tn
the political trial, ib ie inperetive thal whinesses reenact thelr predetevmined
voles with sempplous Pidelity, otherwlee the polities, mesaage whieh the
trial. was datended to sownulente will be Loeb.”

The use of the legal, process to suppress groupe who discenmt ds pednedple
fven on eebeblighed vegine “has been Qlvecttd so fer againot small, groupe
of Livble inporteace iu dewetie affairs . . » Open veprenmion . oda
veund to miee the target ant cape friends when the persecuted group agemes
the statave of a unas movement, controlling 4 luge segment (wey, more thm
twenty per cout) of the popular vote. . » Even if « eoubineblon of soqlal.
anh aconimie yranaune and pohies operations warm qnough bo enfovee the ban,
‘there might ba enough veelebance to theow the Judielal machinery owt of
goer and canoe). whet Le the benefit of Iiahted cepvession, the ohana bo
peesmrve in taxh the legal process end the framework of demooratia anatatoubtens °°

“Bs

the degree of soncenaus of & nogleby Upon a elngle value system or,
poh in opposing teem, the heterogendity af a soolely in Gemma of tia
whardug of valuas ond the prlovidy aseurded values, is @ fecvor af Miret
ilaportance tn the wlelidty of Lie legal. sywhem. The author develops thie
pulnoiple ae follave: "She meawlig of Lage conselousness in o hetenngencous
acalety thus offers sgeohel problens, Lf ne dation, consenou oclele on
ooeuial, coaumlty dese, the jged emmot play thele twadiitons role
in vealleing the commuliy value ebeuetore ond polublag 24 up da woleties to
epenktio iamwa . . » Tnerhlalty pramuypesse & ammmonly accephed eluting
propopihden. If as iia pobeb of departure the Jule usee propositions welch
ane enphatdually rejected, by wsubatontial elements in the comumhiy, he
WiLL wt be able te rely on the pramumpiion af shedlence owed to bie offiies,
even if he can ghow Cheb be bas adheved with some conmiebenoy to hie dnitded
proposition. "?

DMosent from the polthies of en dndugtekal appleby WLLL rejack the
ebhle. of contorebiy ant entrave inatend Loysity to « grou or eauae: “athe
waivies of an isdusqriel soclety have often tooo o rablonel interphayr of
iwherest organtusbions whoee oubeard form da 6 gligabie and porenont
populandty contest. Manbare of the legal profeselon functioning se onstoddans
of the polttloal. gam mush themielves contevm te the sullen ond precepts.

Why, then, should anyone else be pelvlleged to rejeet the prevailing poses.
Promeuek and Laolet en veowenbing poltides im the daage of a communtiy
xeobiug on Loyaluy bo group or cause rothor han on watlomal, alarlideed,

12 wilueptving, ealevilavlon of prott) and Joswe"

the lunyer'n tasks in a politien. iniel. toling place tn a medhamled,
otivluediued, dontounles wooleby tu to wee “wrembive dngewulty » «6 dit
vhipoing diffuse elements of 6 given sltucklon tuto convineing enough shape

we ho

to obiatn @ favorable xevavion for his aldent.”? A tunetlonary of the Cech
Lovyors' Orgendzetion pointed to the didhebeay ef the Lewyer's devotion to

‘the inheresh of hie elient and publiie interest, which ty involved in a
poliwes, trial, ae follows: "Te the Lawyer wante to keep to the principle
that he hee to prosmve the interesh of hike Ghienin iu contormbiy with the
interests of gonlew end the principle of objective truth, he has to analyze
elearly every caap. He hoe to coufown to the objective twubh and the daterente
of soolety. Tor thie xenson we use the tern "uwkitied duteresh of the
alien," amd owl toone rey) "a0
(Xtéliee supphted.)

The author euunkuee the hietory of the mammary dn whieh polatdaal
‘iiale wave been wed to probect vegies fron exbversion and overthrow.
the peimciplas goverwing the we of political tials ae o sapport for
outhacley are elucidated. ant devellapel through Duawieetive examples. Che
eoguindte cheracteriaties of the raled of he defendant aad hie Lawyer,
jouether whth tha promowioy and the judge, ave thovoughly explored. There
ae many pexteptive sheabanente ebout the webwe of the Judicial peaceas
aud the tess of the Jodge in twisle of thie ehoracter.

Ono chayber da daveted bo thé operstion of the Jultelal process da
nogleties chavackorlued hy "demowwetie eantralion,” in whidh ‘Unk IMieleey
became Iistegewiad with the polidaad, rwttinbsone Ta euch sovdatten, the
jwilelery becomes on insiument for imbbeining the clumging polditasl dhjentives
af the otave. "Ihe eavenso of sooialtet Legality, then, 49 guarantioing
‘thet orders axl plagues ore yofeLlingly chaerved ab ald subordinate Lave.

+ + + Then polJeles and ofttetel. dnberppetation vhenge, Legality cova

vo the ner tao: ab bend. Under no cowkititon an ah called wen to

hetwean hodayts chjewbives of the volta ohd yeotorday's covets \
of the subjeot.”% m hot

~ 5

the Mwweuberg trials are exploved as an aepael of tlele by auscosnor
regimes. ‘They ave ‘tered "the ‘not doportent ‘wuscessor' telal dn modern,
hiebory." Woh vespect to the oxime aguluet peace vherge, the author sbhvtedt
“Hod the while purpose of the ordme againat peace shayge succesded, had ii
helped to Ley a doumlabion for e new world order, the uncerbaia juckidae!,
foumlation of ‘the vhexge would now be overLogked and the enterpriag pradags
ag the rook on which the whthdvaval. of the olwten’ eights to comet
agurocsive verfere same to week. Aa the coukibion pursuing the Nuvanters
onterpries woke wp betwen the tok on the Nucenberg Judguent bad thao to dey,
‘the dissenolons among the warbine portman Uheow a shedar ever the whole
attaie 2

With vegerd to the orines ageinet humenkty charge, the author concludes:
“he newly coined orines against Immunity concept (Avuiele do of the charbor)
ooeremponds to a deeply felt voncern over the noolel rewldihtes of our ager
tho advent of polieles intent on ani leading to debasby aw wlething oh
the exlotence of whole nations or rages. Bub Lf the eoodel and pollideal
mohenion employed in such cases le witorbimwtely very clomr, the Legal

over shi reprene cmudh sebfons xemakn probleneble. Ta the

chaende of a world authority te exbablieh the boahery line betwee almaliy
hoyond the pale ani lugivinste poldoy reamruel for the ialividual wtate,
the Trench goverment awh tha Agerien foes, the South Atrivan gokerumont
and the represontatives ef the dovatwodden negue omd eoloved. populeylon, nob
4 montton the Timgarten vegine and ste adversaries and viebine, might
contime to have © vary different viewpoluh on the mening of the const.”

‘the Pinel aypenioal of Nuvewherg is that: “he eonarehe condkidon \
unter whioh the Marembeng Litigation aroae and the oo inolusive agape pf
the Andiotment nay make 2% ALECeULb for us to separate the alrownstantial,
shanmate whieh it shaves with al]. otber suagsaer trials trom Lhe nn \ ’

«Go

Jowblog contelutlon: thet i detined where the wedi of polities ena ox,
cothay, ie trauatomned dinko the congerne of the humm condition, the survival,
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telele ave euployad to develop in @ eveative way aigaifloanh peluelpes
ond peopoelblons in poldilen! aul legal. theory. The Literature of Lay aad
jurleprodence hes only eplewtlolly ant tengenbielly dealt with the protien
wf the polvieo!. tela, whleh the euthor daveetigetes with ah theroupiaens.
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Kouneth §. Carleton

de

a.

4.

aS.

Zoatnotes

P, 86. A footnote referring to a page number and with no other reference
WLLL veer to a page of the text under review,

K. 8, Carleton, Law and Ovganisubion in World Soodety, Oh. VIL (he be
published by the University of Tuldnele Press, Uhana, 1962).
Chigage and Southern Alw Lines, Inc. v. Waterman Gteanship Corp., 383
We B. 103, Lia (ugh8),

Pye Ua, 48,

Pp. LOL,

Pp» 150, 160.

B. BUS.

P, 298.

B, Bhg.

Pe al,

B, 298,

Rp. 383, 92.

P. 326.

Be Ble.

B. 3h.

208 CORNELL LAW QUARTERLY [Vol. 48

probably explained (though not necessarily justified) by the fact that its
statutes can be found in any reasonably equipped law library. Dr. Aufricht,
it is true, suggests? that the laws have been selected according to age (the
United Kingdom represents the oldest; Ceylon, the Philippines and others
represent the most recent type), breadth or precision of language, and levels of
economic development. Yet one cannot help feeling that had such been the
sole criteria (if the word may be used to indicate concepts of the utmost
vagueness), some countries would have fared differently. In these circumstances
it only remains to hope that Dr. Aufricht will in due course complete his under-
taking by the publication of a second volume.
COPYRIGHT 1962 F. A, Mann*

CORNELL UNIVERSITY

Political Justice: The Use of Legal Procedure for Political Ends. By Orro
Kircuermer. Princeton: Princeton University Press. 1961. Pp. xxi, 452.
$7.50.

We lawyers too often regard the law as a mechanic regards an automobile:
we confine our attention to an understanding of its elements and to the develop-
ment of skills necessary to make it work. We learn rules and principles of torts
and corporate law, of crimes and anti-trust; we draft and negotiate, plead and
litigate.

Like mechanics, however, too many of us neglect those facets of the legal
institution which lie outside our special interest and skill. The automobile is,
to be sure, a machine, and the mechanic’s function is to see that it operates
properly. But the automobile is also a social artifact, an economic product, an
historical incident and an object of aesthetic judgment. Likewise, our law is
more than a system of legal rights and duties which is studied and manipulated
by its mechanics, It is also, among other things, a mechanism for the distribu-
tion of wealth, an embodiment of a system of morality, an arena for the resolu-
tion of individual and social conflict and a vehicle or medium of political action.

Professor Kirchheimer’s book is directed at this latter facet of law, at law as
an instrument of politics. His combination of political acumen, historical in-
sight, breadth of culture and legal sophistication should not only awaken the
lawyer to his parochialism but should also direct the social scientist to a new
interest in the law. How many historians, how many students of the family as
a social institution, or how many economists are aware of the fund of ma-
terial relevant to their science which is available to one who has some mastery
of legal research? Legal materials are, unfortunately, beyond the competence of
too many scholars and scientists; this, among other reasons, explains why a
book like “Political Justice” is a rather unusual achievement.

The purpose of the book is to describe the ways in which political ends are
achieved by resort to the processes of law, especially by resort to the courts,
Political justice is justice or legal process designed or used for the resolution
of political conflict or the fulfillment of other political goals. In the simplest
sense, it is the use of legal process to discredit a political opponent, for instance,

2P. xvii.
* Dr. Jur. (Berlin) ; LL.D. (London) ; Honorary Professor, University of Bonn; Solicitor
aa Toke,

1962] BOOK REVIEWS 209

to remove him from political life by having him convicted of a crime. In more
complicated instances, it involves the creation or sustenance of a public opinion
favorable to a particular political goal by resort to the courts: an Eichmann
trial designed, among other purposes, to win sympathy and moral support for
a beleaguered state or a Hiss trial intended to awaken a nation to a neglected
peril. (Or, was the latter’s purpose, perhaps, to regain public confidence in
the ability of a party in power to deal with a threat which the opposition party
claimed it could not handle?)

In order to achieve an understanding of the political role of the judicial
process, Professor Kirchheimer ‘combines narration and speculation. He offers
copious illustrations and then attempts to generalize from them. He examines
the Goebbel assassination in Kentucky, the libel suit instituted by President
Ebert in Germany, the Caillaux case in France and the Nuremberg trial. He
has a fine capacity to give “the feel” of a trial and its involved historical and
political roots in short scope. Moreover, once having narrated, he reaches out
for general insights, for explanations of why there was a resort to the courts
and what political role the litigants, the judge and counsel played. Sometimes
the reach of his theory seems to go further than it should and he is overly
elaborate and abstract. On the whole, however, except for a tendency towards
jargon and scientism, the generalizations which Professor Kirchheimer offers
seem sound and fruitful,

I wonder, however, whether the book goes as far as it should. Is there not a
sense in which every law suit is political, a fulfillment of a political goal? Prin-
ciples of the law of torts, for example, embody a resolution of conflicts not only
between the litigants in individual cases, but also between various economic and
social interests. The resolution of just such conflicts lies at the very heart of
the legal process. By concentrating attention solely on political trials, that
is those involving political parties and political figures, Professor Kirchheimer
has perhaps neglected the most pervasive sense in which justice is political, the
sense which Hans Kelsen intends when he speaks of the identity of the Law and
the State.

A lawyer will not learn to plead or try a case within these pages. He will
escape from the narrow confines of his own province into adjoining territory,
however, and this may be more important.

Edward J, Bloustein*

International Claims: Their Adjudication by National Commissions. By
Ricuarp B, Liziicy. Syracuse: Syracuse University Press. 1962. Pp. xiv,
140. $5.00.

Many studies have been made of the organization and work of international
mixed claims commissions to which states have submitted claims growing out
of injuries to their nationals. Much less attention has been paid to national
commissions. The latter are set up under the authority of a single state to pass
on claims of its nationals against another state which had been settled between
the two states by an agreement to pay a lump sum, or which the claimant

* Associate Professor of Law, New York University School of Law.

Reprinted for private circulation from
THE UNIVERSITY OF CHICAGO LAW REVIEW

Vol. 30, No. 1, Autumn, 1962
Copyright 1962 by the University of Chicago
PRINTED IN U.S.A.

Political Justice: The Use of Legal Procedure for Political Ends. By Orro
KircHHEIMER. Princeton: Princeton University Press, 1961. Pp. xiv, 452.
$8.50,

What is Political Justice? In a sense all administration of justice, criminal
and civil, is political, as it serves to maintain and at times to change, the social
and political order of society. Kirchheimer deals with political justice in its
more specific sense—the use of the law and the courts directly to influence the
struggle for political power. Even in this narrower sense the term refers to a
wide variety of phenomena, ranging from the judicial prosecution of the al-
leged revolutionary or traitor to the use of the courts by the political opponent
who forces a member of the governing group into a defamation suit. This
variety of forms in which political justice can appear is vividly illustrated by
the author in the opening chapter of his book, in which he presents a concise
historical survey and a detailed description of some typical political cases of
recent times. The use of an accusation of common crime to discredit or destroy
a political opponent is illustrated by the attempt of the Kentucky Democrats
in the 1890’s to wrest the governorship from the Republicans by preferring a
specious murder charge against the Republican leaders. The story of this long
forgotten, but by no means atypical, episode of American politics is instruc-
tive as well as thrilling. The equally specious, but successful, attempt of
Clemenceau and Poincaré, through a treason charge to prevent Caillaux from,
attaining political power during World War I, and from using it to bring
about a compromise peace, stands for what may be called political justice in its
purest form. How a regime can be undermined by forcing a member of the
governing group to defend himself against libelous charges before a judiciary
sympathetic to the libellant’s cause is demonstrated by the case of Friedrich
Ebert, first President of the German Republic after the collapse of the
monarchy,

While trial can thus serve as a weapon of attack, it is more frequently a
weapon to defend an existing regime or government against its opponents.
Political justice is a typical weapon of what Kirchheimer calls “state protec-

198 THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

tion,” meaning the protection of the regime or government in power. It is not
the only weapon. A government may dispose, and often enough has done so,
of its real, suspected or manufactured enemies without interposition of the
judiciary. Administrative arrest and protective custody in a concentration
camp are but illustrations from our own times. They have been used not only
by fascist, national-socialist or communist regimes, but during World War II
by Great Britain and the United States.

Observing political justice as a means of state protection leads Kirchheimer
into a discussion of state protection in general, especially the dilemma that
presents itself to the modern liberal-constitutional state where it is, or believes
itself to be, in serious danger from an “opposition of principle,” especially by
opponents of the very bases of democracy, constitutionalism and individual
liberty. Such enemies, in our days fascist and communist, want to make use
of those very liberties of democracy which they are bent to destroy. How far
can a democratic state go in its efforts to protect itself against such enemies
without destroying its own foundations? How can state protection be squared.
with freedom of speech? What Kirchheimer has to say on this disturbing
problem stands out among the mass of recent writing. Here, as in all other
parts of his book, Kirchheimer draws on vast material taken from many
parts of the world. The radical measures of the Federal Republic of Germany,
finding itself directly confronted with efforts of communist penetration from
East Germany, are contrasted with the cavalier attitude of Great Britain, be-
lieving itself to be immune. The vacillating, and at times frantic, American
outbursts are shown to be due less to real danger than to politicians’ attempts
to ride a probably overestimated wave of popular fear and insecurity.
Kirchheimer believes that at least some of the American advocates of radical
measures may have felt that the harshness of their legislative proposals would
be softened, or even declared unconstitutional, by the courts. To some extent
this expectation has indeed been borne out, especially through the attitude
taken by the United States Supreme Court in Yates y. United States. That
case has not been the last word in the political struggle about anti-subversive
legislation. In later cases the Supreme Court itself has taken a more rigid
approach, and local courts have frequently tended to lean in that direction.

Reviewing the broad scale of attempted state protection in the past and
present, Kirchheimer reaches the conclusion that most of the measures are un-
necessary where the opponents are insignificant, and that they are, in the
long run, ineffective against an enemy representing the majority of the people
struggling against a governing minority regime or a colonial power. In such
generality this judgment appears too broad. It applies only to liberal constitu-
tional regimes that have opened themselves to democratic ideology and lost
faith in the justifications of their own rule. In our days such softening has
gone so far as to result in the voluntary abdication of colonial rule. But where

1354 U.S. 298 (1957).

1962] BOOK REVIEWS 199

there is a strong will to maintain power, minority regimes have been able to
survive attacks from within as long as they have not been accompanied. by
defeat by the external enemy. The Czarist regime of Russia even managed to
survive the defeat by Japan i 1905; it did not fall until the total defeat by
Germany in 1917. Austria-Hungary survived all attacks by Czech, Yugoslav
and Italian nationalists until the defeat in World War II. If, along with
Kirchheimer, one regards pre-World War I Germany also as a country where
a majority of the people was lorded over by a minority, it might be added as
another illustration. However, the German example tends to indicate that the
dichotomy, minority-majority, may be too simple. Not even the Social-
Democratic Party which, as a matter of fact, never achieved a majority vote,
constituted in its totality an opposition of principle. A government may well
be drawn from a minority of the people and the majority may be content
with, or at least acquiesce in, that situation. The futility of the half-hearted
German attempt of the 1880’s to suppress the Social-Democratic Party can
indeed be used as a prime example of the problematic relationship between
liberal constitutionalism and efforts at state protection. The German case
does not constitute an example of the futility of vigorously attempted state pro-
tection against a popular majority. Neither was the majority opposed to the
existing system, nor did that system ever undertake a full-fledged effort at de-
termined suppression of even its declared enemiés. Such an effort, if it had
ever been undertaken, might well have run into trouble not only because it
would have been contrary to the political climate of liberalism, but also be-
cause it could hardly have expected the full co-operation of the judiciary,
which, as shown by Kirchheimer’s own illustrations, was little inclined to
harshness against such leaders of opposition as Bebel and Liebknecht.

Neither in Germany nor in the United States or other non-totalitarian
countries have the courts corresponded to that communist over-simplifica-
tion in which they appear as mechanical tools of the government—both
government and courts simply constituting weapons of the ruling class in its
struggle to keep down the exploited class. Neither, of course, have the courts
been the never-flagging champions of individual freedom against governmen-
tal suppression, as they have occasionally appeared in Anglo-American ora-
tory. Reality is more complex. Its sociological analysis by Kirchheimer is pene-
trating. Why do governments resort to courts at all? Why do they run the risk
of being rebuffed by the courts and the danger of the political trial being used.
by the accused and his group as a public forum of the potentially highest
efficiency ?

These questions are answered by Kirchheimer in a searching analysis of the
role of courts not only in political trials but in society in general. Obviously
influenced by Max Weber, Kirchheimer finds the key in the deep human need
for justification of the use of power, In order to be accepted, and thus to be
stable, power must be felt to be “legitimate,” i.e., to correspond to postulates

200 THE UNIVERSITY OF CHICAGO LAW REVIEW _ [Vol. 30:191

accepted as self-evident. In our age, in which the exercise of power, in order
to be accepted as legitimate, must be demanded by, or at least correspond to,
reason, the reasonableness of the exercise of governmental power must be
visibly demonstrated. This task of legitimizing in individual cases the exercise
of governmental power, especially when it is directed against an alleged enemy,
falls to the courts; the judges are the legitimizers of the exercise of govern-
mental power. This insight proves itself a veritable key to the clarification of
the problematic role of the judiciary in the political fabric.

Courts cannot serve as legitimizers of governmental power unless they can
follow their own judgment independent of the views of the government. Here
then lies the root of the democratic postulate of an independent judiciary.
But, on the other hand, no state could survive a decided hostility of its
judiciary against its government. A dramatic illustration of such a case is af-
forded by the German Weimar Republic. Hence the problem of finding the
right balance between judicial independence and judicial obedience to the law.
No hard and fast solution can be stated. The answer must depend on varying
circumstances of time and place. How great the variations have been in the
measure of success, and how manifold are the available means of formal and
informal nature, is extensively shown by Kirchheimer. Modes of judicial ap-
pointment, tenure, appeals, administrative controls, personal background,
relations to the public, both in general respect and in special relation to the
political case, all come under scrutiny. The inquiry is extended to the role and
position of the other actors in the judicial drama: the prosecutor, the at-
torney and the accused. For the accused the political trial can present a much
desired opportunity to publicize, dramatize and propagandize his cause and
thus to defeat the very enemy by whom he is prosecuted. But promotion of the
cause may be fatal to him. Shall he save his own skin by turning informer or
traitor to the cause? The dramatic dilemma is illustrated by numerous con-
temporary cases as well as by the two most momentous political trials of our
history, those of Jesus and Socrates.

What are the peculiar tasks of defense counsel in the various types of po-
litical trial? Is it his first task to serve his client, or is he to promote the cause?
The two tasks can be incompatible.

What, furthermore, is the role of the prosecution? How is the prosecutor’s
position to be organized if it is simultaneously to serve the government and
not to compromise the people’s confidence in the administration of justice?
What are the motivations for the decision of whether or not to prosecute, and,
in the affirmative situation, of how to “dress up” the case?

All these problems are discussed on the basis of a large amount of ma-
terial taken from constitutional countries such as the United States, Germany,
Switzerland, France, Great Britain and South Africa, But how do the prob-
lems present themselves in a totalitarian country? The German Democratic
Republic (i.e., East Germany) serves as a richly documented illustration of the

1962) BOOK REVIEWS 201

seyeral techniques—formal and informal, crude and subtle—for the achieve-
ment of a situation in which the courts, like all other organs of state and party,
are to function as reliable executive organs of an all-powerful regime bent
upon remolding an entire people in accordance with an ideology regarded as
ultimate truth. This fascinating description is followed by a survey of turns
in Soviet theory on revolutionary legality, which, however, does not extend
to those latest tendencies. which may conceivably foreshadow a considerable
intrusion of lay elements into the administration of Soviet justice and, per-
haps, a growth of judicial independence.

A chapter of some fifty pages is devoted to “trial by fiat of the successor
regime,” amply illustrated by cases from widely diverse places and periods.
The trial of representatives of the defeated by the victorious regime appears to
be a common, and probably inevitable, phenomenon. Kirchheimer uses the
case to explain the essential difference between the trial and the action which
for propaganda purposes is called a trial but partakes more of the nature of a
spectacle with prearranged results. But even in such administration of justice,
gradations exist. In the courts-martial of the Vichy militia and the people’s
tribunals of the first liberation days, enemies, whose fate had been settled
in adyance, were butchered. The liberation type of cour de justice, with all its
prejudices, allowed for some primitive rights of defense. The elaborate mili-
tary commission set up by the United States for the trial of such Japanese
“‘war criminals” as General Yamashita is said to constitute a marginal case.
The Nuremberg trial before the International Military Tribunal is regarded
as a true rather than a merely simulated trial. The Nuremberg case is exten-
sively discussed, but, in contrast to the general character of Kirchheimer’s in-
quiry, the refutation of the critics moves more along legalistic than political
lines. Whether Nuremberg has produced, as Kirchheimer hopes, the positive
result of a lasting condemnation of the use of inhuman practice in the political
struggle may well be doubted. As pointed out by the author himself, the
Nuremberg indictment was directed primarily against the National-Socialists’
attempt to subjugate Europe by force of arms, and only incidentally against
the practices used in the pursuit of this aim. Inhuman acts unconnected with
the war were expressly excluded by the Tribunal from its scope of jurisdiction.
More convincing, on the other hand, are Kirchheimer’s arguments against
the proposals to call in neutral judges in the condemnation of the National-
Socialist rulers of Germany by their Allied successors, or to leave their
condemnation to German courts.

In the chapter following, Kirchheimer investigates the role played in po-
litical justice by the corrective institutions of asylum and mercy. Asylum
signifies the limitations imposed on political power by the limits of its terri-
torial spheres. What are the considerations motivating a government to grant
or to refuse asylum? What were the policies of the several nations in the nine-
teenth century, when the asylum seeker was typically an individual? What are

202 THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

they today when the search for asylum has come to be the concern of vast
groups of persons persecuted not only on grounds of political creed or activity
but on grounds of nationality, race or social origin?

What, finally, are the complex and widely varying motives for granting or
denying mercy to individual victims of political justice, or amnesty to entire
groups? The comparison of Lincoln’s practices with those of contemporary
American administrations is as fascinating as the analysis of attitudes of
Shakespearian characters, of Tudor and Bourbon kings, or of successive
French and German regimes.

In summing up Kirchheimer returns to the comparison of political
justice in constitutional and totalitarian regimes. In the former the existence of
a “judicial space” is essential if the “detour” of the resort to trial is to fulfill its
function of legitimating the governmental prosecution of the political foe.
Only if the courts are left a space of freedom to exercise their own, though per-
haps narrowly defined, judgment can political justice be expected to achieve
its assigned end. There must be some risk of divergency between government
and court, and thus some risk of the trial being used by the accused as a forum
for effective advocacy of his cause. Where no such judicial space is left, the po-
litical trial can serve only the different functions of a potentially highly effective
means of a totalitarian government to educate the populace along the ways de-
sired. Whatever the regime, political justice “is bound to remain an eternal
detour, necessary and grotesque, beneficial and monstrous.”

This final judgment expresses the well-balanced nature of Kirchheimer’s
investigation of a topic that easily provokes partisan approach. Kirchheimer
leaves no doubt about his own convictions as those of a democratic, liberal
constitutionalist. But through his comprehensive knowledge of history he is
familiar with the complexity and inevitability of the problem. He pursues it
not as the pleader of a cause but as a scholar in search of knowledge and
understanding.

Kirchheimer is a political scientist and a sociologist. He looks at the phe-
nomenon of political justice from this outside point of view rather than from.
the inside position of the lawyer.3 It is exactly this approach that makes his
work fascinating and important for the lawyer. The impact of the inquiry is due
not the least to the comprehensive scope of the author’s material. Political
justice has been treated in a flood of writing, especially in recent years when.
it has become such a widespread and disquieting phenomenon. The number
of American discussions of American cases, practices and problems has been
legion. Nowhere else can the reader find such a wealth of material as in
Kirchheimer’s book. Consequently, the approach is from a higher level; phe-
nomena and problems of one country are reflected in those of another. Thus
new light is thrown upon the familiar phenomenon. The inquiry cuts down

2P, 430,

3 The fact that the author is not a lawyer has found expression in his unorthodox and at
times annoying mode of citing cases, American and foreign.

1962] BOOK REVIEWS 203

to fundamentals. The book constitutes a high achievement of comparative
law as well as of jurisprudence. Law teachers might well consider its use as a
base for discussion in seminars or courses on jurisprudence. For one striving
at clarifying his thoughts about the problem of how to defend our social and
political system against its enemies, without in the effort undermining its very
foundations, Kirchheimer’s book is, I dare say, indispensable. To the judge,
attorney, or prosecutor involved in a political case, it will serve as a useful
practical guide.
Max RuEINsTEIN*

* Max Pam Professor of Comparative Law, University of Chicago.

KINOHHBIMER, Obbe, Political Justice: The Use of Legal Proeedure for
Political Bndg. Princeton: Princeton University Frees. 1961, xiv &
se pPe $6.50,

"The ata of politieal justice Ls te enlarge the area of political,
acthon by enliating the serviees of courts in behalf of polities) goals,"
Political recourse te the courts cours in a varlety of clrowmstances, Tb
iavolves, of course, a distortion of the judiolal process; ab the game time,
the chérécterixtios of that process supply comlitions, some advantageousy
sone disaiivantageoug, to the puraudt of the polities) goal,e

Tt would be hard to conceive a Literary project more anbitious-«
er more forbidding-«than an snelyties. atudy of political justice, There is
needed firet. of all the mastery of a great masg of historical detail, for the
study must rest on empirical dabay and thege data must be evaluated, The
authy must be famiiier with all the legel aystems invelved in his data, But
these are only the beginning, ‘The events must be ordented in a historical
scheme; they must eleo be made to yield a categorical anelysis which exposes
the nesessities, the implications, and the consequences of political: gustieds
Tmagination and @ high degree of creativity are raquireds

AlL these conditions are met in the beok under reviews Sone
hundreds of cases conbribube at one point oy another to the discussions
several receive extended consideration, They slaultanequbly underpin ani
iliteainate the histories] and analytical treatments,

For most of human history the legal offense of diarespect for
authority-the evimen Jaesse najastetiaechae been punished as a matter of
course, Bub during the nisetoenth century, in western Burope and the United
States, where the ideal of conatitublonaliom had teken root, this “syste of

«Be

atate protection waa "hesitant and consclence-striokene” Since the First
World War, however, ib hes been restored to full vigor, The “erime of social.
dissolution," to adopt the expressive Mexiean term, khe been introduced almost
everywhere. fe Yronohy German, and American codes are very elaberate; only
Great Brbain and some of the Gomonwealth mations have adhered to the nineteenth
centeny tradition.

ta part seaiel factors sosount for these changag. The outlook of the
nineteenth century was that of the middle cless. ‘The middle mk class had
wade ite gains through opposition to government, and abil) identified Lbaelt
with dissent. Moreover, the middle elass inherited the optimiah, the rationalism,
amd the attachment te certainty of the Enlightoment. Vor the firsh time
there was @ public opinion hostile te political gustiee, Bub today, in masa
soolety, public opinion ig uninformed, wuneritieal, and irvablonal; 16 applauds
polities), prosecutions with enjoyment of thespectacle heighteneed by moral
dnhignation at the viebin.

Politioa), factora else played a part, The nimeteenth century saw the
apogee of the national state, ‘Te tendensy was toward indulgence of
internal proposals of changes traffio with a foreign enemy was "the deadliest
of all sing," Bub international commnigations have recast value systems in the _
twentieth century: economic interest groups, Fasolem, and Connunion have their |
various ways deprived the state of its monopoly of loyalty. These very *
developments have prodused more violent assertions of state patriotiem on the
part of the popular magses, ‘The upshot haa been the enactment of penal, leg~
delation which identifies the idevlegioe. erins of social discontment with aid to
a foreign enemy. ‘The imprecision of the concept of "subwergion" makes possible
the conflation of the two offendees, and ite vagueness makes the word more
sinister and menacing.

Bub these Lilumineting historical insights are a side-lasue, The

30

principal concerny of the book are to eatablish types of poldtieal justice
amd to examine the constituent elements of the poliiieal trial, The moa
obvious case of polities! justice ig the bill of attainder, the outlawry of
a dissident group. When a ruling minority undertakes to destroy popular
organizations, there ie ugually mo wlterlor purposes the goal. ie simply
repression ef opposition, Bxequblon of the poliideal policy collides ab
poilnha with the legal order, whieh the government is unwilling to serap
altogether; even the opponents of the racial laws of South Afriea have found
nome shelter behind the structural bean whieh are necessary to support any
degal systen. But most contemporary acte of represaion--the Amerioan antie
Communiat’ Legislation, and the suppresaion of the Seglaiiet Reich party and
the Communides party in West Sermany are considera in some detail<«are not
intended to protect the regime from any veal threat. The Amerioan legislation
resulted from o compebibion in demagoguery. The Soslalist Reloh party was
duppressed dev no other reason then ite insolent behavior, The suppreaaion
of the Sommmnist party by the German Constitutional, Court was principally
intended to buttress the foreign policy of the governments

Other forma of politdeal justice do not involve the proscription
of a group by nane, Stabubes of a more convenbdlonal sort, prohibibing one
op another ‘action, speech, or opinion are pagseds or the defendant is charged
with an offense drawn from bhe ordinary cwiiinal Jaw, Gdvil actions, such as
Vibe multe, may alao serve politieal endo. A speoial elas of actions de the
triel of a predeceasor by a successor regime, aa in the Nuremberg triala,
which ave considered at Length, In most cases political justice alms at
public opinion rather than ath the ostensible viebim:s the purpose is to vindLoate
& regime or a gandidate or a poldey by esteblighing an image of the opponent
ag an eneny of the common goods

abe

Thus the political trial undertakes to recast history into a
desired patter, By focusing on a single event, to whichare attached both
decisveness and culpability, it vadieally distorts the subgeobs bub of course
d.atortion is the purpose. The political trial ig a morality play. The
characters are the judge, the jury, the lewyers, informers, and the parties.
Usually the state is one of the pabbiess and 1% also supplies the stage
directions, In interpreting thelr roles the acters enjoy a certain latitude.

How great this is, and how it is used, depend upon many clyeunstanees; these
the author explores and illustrates,

A chapter is devoted to ag asylum, and another to clemency. These
arise in such widely varying situdations, and diseretion plays so large a
part, that systematization camot proceed very far.

It is clear that Dr. Kirchhoimer does not attribute entire objectivity
and certitude to the judicial process at its best. His approach is a. blood-
chilling legal realism. Consequently he takes for granted both the inevitability
and teh injustice of political triala. They have, however, this merit: they
are a part of the struggle for political power, and without then the struggle
would continue in a less orderly way.

Judicial, process has ‘as its objective the solution ef problems in
homenotdonhi: terms of truth and reason, When the magnet of power ontera the field,
must ‘the needle invariably swing to the new pole? Political, Jugtlog recounts a
few cases in which this did not eceur, but these must be regarded as exceptions
to the rule. ‘The dispassionate acouracy and the profundity of the book make

the conclusion the more depressings

FRANCIS D. WORMUTH

‘university of Utah

—s

Reprinted for private circulation from
THE UNIVERSITY OF CHICAGO LAW REVIEW

Vol. 30, No. 1, Autumn 1962
Copyright 1962 by the University of Chicago
PRINTED IN U.S.A,

Political Justice: The Use of Legal Procedure for Political Ends. By Orro
KircHHetmpr. Princeton: Princeton University Press, 1961. Pp. xiv, 452.
$8.50.

What is Political Justice? In a sense all administration of justice, criminal
and civil, is political, as it serves to maintain and at times to change, the social
and political order of society. Kirchheimer deals with political justice in its
more specific sense—the use of the law and the courts directly to influence the
struggle for political power. Even in this narrower sense the term refers to a
wide variety of phenomena, ranging from the judicial prosecution of the al-
Jeged revolutionary or traitor to the use of the courts by the political opponent
who forces a member of the governing group into a defamation suit. This
variety of forms in which political justice can appear is vividly illustrated by
the author in the opening chapter of his book, in which he presents a concise
historical survey and a detailed description of some typical political cases of
recent times. The use of an accusation of common crime to discredit or destroy
a political opponent is illustrated by the attempt of the Kentucky Democrats
in the 1890’s to wrest the governorship from the Republicans by preferring a
specious murder charge against the Republican leaders. The story of this long
forgotten, but by no means atypical, episode of American politics is instruc-
tive as well as thrilling. The equally specious, but successful, attempt of
Clemenceau and Poincaré, through a treason charge to prevent Caillaux from
attaining political power during World War I, and from using it to bring
about a compromise peace, stands for what may be called political justice in its
purest form. How a regime can be undermined by forcing a member of the
governing group to defend himself against libelous charges before a judiciary
sympathetic to the libellant’s cause is demonstrated by the case of Friedrich
Ebert, first President of the German Republic after the collapse of the
monarchy,

While trial can thus serve as a weapon of attack, it is more frequently a
weapon to defend an existing regime or government against its opponents.
Political justice is a typical weapon of what Kirchheimer calls “state protec-

198 THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

tion,” meaning the protection of the regime or government in power. It is not
the only weapon. A government may dispose, and often enough has done so,
of its real, suspected or manufactured enemies without interposition of the
judiciary. Administrative arrest and protective custody in a concentration
camp are but illustrations from our own times. They have been used not only
by fascist, national-socialist or communist regimes, but during World War IL
by Great Britain and the United States.

Observing political justice as a means of state protection leads Kirchheimer
into a discussion of state protection in general, especially the dilemma that
presents itself to the modern liberal-constitutional state where it is, or believes
itself to be, in serious danger from an “opposition of principle,” especially by
opponents of the very bases of democracy, constitutionalism and individual
liberty. Such enemies, in our days fascist and communist, want to make use
of those very liberties of democracy which they are bent to destroy. How far
can a democratic state go in its efforts to protect itself against such enemies
without destroying its own foundations? How can state protection be squared
with freedom of speech? What Kirchheimer has to say on this disturbing
problem stands out among the mass of recent writing. Here, as in all other
parts of his book, Kirchheimer draws on vast material taken from many
parts of the world. The radical measures of the Federal Republic of Germany,
finding itself directly confronted with efforts of communist penetration from
East Germany, are contrasted with the cavalier attitude of Great Britain, be-
lieving itself to be immune. The vacillating, and at times frantic, American
outbursts are shown to be due less to real danger than to politicians’ attempts
to ride a probably overestimated wave of popular fear and insecurity.
Kirchheimer believes that at least some of the American advocates of radical
measures may have felt that the harshness of their legislative proposals would
be softened, or even declared unconstitutional, by the courts. To some extent
this expectation has indeed been borne out, especially through the attitude
taken by the United States Supreme Court in Yates v. United States.1 That
case has not been the last word in the political struggle about anti-subversive
legislation. In later cases the Supreme Court itself has taken a more rigid
approach, and local courts have frequently tended to lean in that direction.

Reviewing the broad scale of attempted state protection in the past and
present, Kirchheimer reaches the conclusion that most of the measures are un-
necessary where the opponents are insignificant, and that they are, in the
long run, ineffective against an enemy representing the majority of the people
struggling against a governing minority regime or a colonial power. In such
generality this judgment appears too broad. It applies only to liberal constitu-
tional regimes that have opened themselves to democratic ideology and lost
faith in the justifications of their own rule. In our days such softening has
gone so far as to result in the voluntary abdication of colonial rule, But where

1354 US, 298 (1957).

1962] BOOK REVIEWS 199

there is a strong will to maintain power, minority regimes have been able to
survive attacks from within as long as they have not been accompanied by
defeat by the external enemy. The Czarist regime of Russia even managed to
survive the defeat by Japan in 1905; it did not fall until the total defeat by
Germany in 1917. Austria-Hungary survived all attacks by Czech, Yugoslav
and Italian nationalists until the defeat in World War II. If, along with
Kirchheimer, one regards pre-World War I Germany also as a country where
a majority of the people was lorded over by a minority, it might be added as
another illustration. However, the German example tends to indicate that the
dichotomy, minority-majority, may be too simple. Not even the Social-
Democratic Party which, as a matter of fact, never achieved a majority vote,
constituted in its totality an opposition of principle. A government may well
be drawn from a minority of the people and the majority may be content
with, or at least acquiesce in, that situation. The futility of the half-hearted
German attempt of the 1880’s to suppress the Social-Democratic Party can
indeed be used as a prime example of the problematic relationship between
liberal constitutionalism and efforts at state protection. The German case
does not constitute an example of the futility of vigorously attempted state pro-
tection against a popular majority. Neither was the majority opposed to the
existing system, nor did that system ever undertake a full-fledged effort at de-
termined suppression of even its declared enemies, Such an effort, if it had
ever been undertaken, might well have run into trouble not only because it
would have been contrary to the political climate of liberalism, but also be-
cause it could hardly have expected the full co-operation of the judiciary,
which, as shown by Kirchheimer’s own illustrations, was little inclined to
harshness against such leaders of opposition as Bebel and Liebknecht.

Neither in Germany nor in the United States or other non-totalitarian
countries have the courts corresponded to that communist over-simplifica-
tion in which they appear as mechanical tools of the government—both
government and courts simply constituting weapons of the ruling class in its
struggle to keep down the exploited class. Neither, of course, have the courts
been the never-flagging champions of individual freedom against governmen-
tal suppression, as they have occasionally appeared in Anglo-American ora-
tory. Reality is more complex. Its sociological analysis by Kirchheimer is pene~
trating. Why do governments resort to courts at all? Why do they run the risk
of being rebuffed by the courts and the danger of the political trial being used
by the accused and his group as a public forum of the potentially highest
efficiency ?

These questions are answered by Kirchheimer in a searching analysis of the
role of courts not only in political trials but in society in general. Obviously
influenced by Max Weber, Kirchheimer finds the key in the deep human need
for justification of the use of power. In order to be accepted, and thus to be
stable, power must be felt to be “legitimate,” i.¢., to correspond to postulates

200 THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

accepted as self-evident. In our age, in which the exercise of power, in order
to be accepted as legitimate, must be demanded by, or at least correspond to,
reason, the reasonableness of the exercise of governmental power must be
visibly demonstrated. This task of legitimizing in individual cases the exercise
of governmental power, especially when it is directed against an alleged enemy,
falls to the courts; the judges are the legitimizers of the exercise of govern-
mental power. This insight proves itself a veritable key to the clarification of
the problematic role of the judiciary in the political fabric.

Courts cannot serve as legitimizers of governmental power unless they can
follow their own judgment independent of the views of the government. Here
then lies the root of the democratic postulate of an independent judiciary.
But, on the other hand, no state could survive a decided hostility of its
judiciary against its government. A dramatic illustration of such a case is af-
forded by the German Weimar Republic. Hence the problem of finding the
right balance between judicial independence and judicial obedience to the law.
No hard and fast solution can be stated. The answer must depend on varying
circumstances of time and place. How great the variations have been in the
measure of success, and how manifold are the available means of formal and
informal nature, is extensively shown by Kirchheimer. Modes of judicial ap-
pointment, tenure, appeals, administrative controls, personal background,
relations to the public, both in general respect and in special relation to the
political case, all come under scrutiny. The inquiry is extended to the role and
position of the other actors in the judicial drama: the prosecutor, the at-
torney and the accused. For the accused the political trial can present a much
desired opportunity to publicize, dramatize and propagandize his cause and
thus to defeat the very enemy by whom he is prosecuted. But promotion of the
cause may be fatal to him. Shall he save his own skin by turning informer or
traitor to the cause? The dramatic dilemma is illustrated by numerous con-
temporary cases as well as by the two most momentous political trials of our
history, those of Jesus and Socrates.

What are the peculiar tasks of defense counsel in the various types of po-
litical trial ? Is it his first task to serve his client, or is he to promote the cause?
The two tasks can be incompatible.

What, furthermore, is the role of the prosecution ? How is the prosecutor’s
position to be organized if it is simultaneously to serve the government and.
not to compromise the people’s confidence in the administration of justice?
What are the motivations for the decision of whether or not to prosecute, and,
in the affirmative situation, of how to “dress up” the case?

All these problems are discussed on the basis of a large amount of ma-
terial taken from constitutional countries such as the United States, Germany,
Switzerland, France, Great Britain and South Africa, But how do the prob-
lems present themselves in a totalitarian country? The German Democratic
Republic (,e., East Germany) serves as a richly documented illustration of the

1962] BOOK REVIEWS 201

several techniques—formal and informal, crude and subtle—for the achieve-
ment of a situation in which the courts, like all other organs of state and party,
are to function as reliable executive organs of an all-powerful regime bent
upon remolding an entire people in accordance with an ideology regarded as
ultimate truth. This fascinating description is followed by a survey of turns
in Soviet theory on revolutionary legality, which, however, does not extend
to those latest tendencies which may conceivably foreshadow a considerable
intrusion of lay elements into the administration of Soviet justice and, per-
haps, a growth of judicial independence,

A chapter of some fifty pages is devoted to “trial by fiat of the successor
regime,” amply illustrated by cases from widely diverse places and periods.
The trial of representatives of the defeated by the victorious regime appears to
be a common, and probably inevitable, phenomenon. Kirchheimer uses the
case to explain the essential difference between the trial and the action which
for propaganda purposes is called a trial but partakes more of the nature of a
spectacle with prearranged results. But even in such administration of justice,
gradations exist. In the courts-martial of the Vichy militia and the people’s
tribunals of the first liberation days, enemies, whose fate had been settled
in advance, were butchered. The liberation type of cour de justice, with all its
prejudices, allowed for some primitive rights of defense. The elaborate mili-
tary commission set up by the United States for the trial of such Japanese
“war criminals” as General Yamashita is said to constitute a marginal case.
The Nuremberg trial before the International Military Tribunal is regarded
as a true rather than a merely simulated trial. The Nuremberg case is exten-
sively discussed, but, in contrast to the general character of Kirchheimer’s in-
quiry, the refutation of the critics moves more along legalistic than political
lines. Whether Nuremberg has produced, as Kirchheimer hopes, the positive
result of a lasting condemnation of the use of inhuman practice in the political
struggle may well be doubted. As pointed out by the author himself, the
Nuremberg indictment was directed primarily against the National-Socialists’
attempt to subjugate Europe by force of arms, and only incidentally against
the practices used in the pursuit of this aim. Inhuman acts unconnected with
the war were expressly excluded by the Tribunal from its scope of jurisdiction.
More convincing, on the other hand, are Kirchheimer’s arguments against
the proposals to call in neutral judges in the condemnation of the National-
Socialist rulers of Germany by their Allied successors, or to leave their
condemnation to German courts.

In the chapter following, Kirchheimer investigates the role played in po-
litical justice by the corrective institutions of asylum and mercy. Asylum
signifies the limitations imposed on political power by the limits of its terri-
torial spheres. What are the considerations motivating a government to grant
or to refuse asylum? What were the policies of the several nations in the nine-
teenth century, when the asylum seeker was typically an individual? What are

202 THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

they today when the search for asylum has come to be the concern of vast
groups of persons persecuted not only on grounds of political creed or activity
but on grounds of nationality, race or social origin?

What, finally, are the complex and widely varying motives for granting or
denying mercy to individual victims of political justice, or amnesty to entire
groups? The comparison of Lincoln’s practices with those of contemporary
American administrations is as fascinating as the analysis of attitudes of
Shakespearian characters, of Tudor and Bourbon kings, or of successive
French and German regimes.

In summing up Kirchheimer returns to the comparison of political
justice in constitutional and totalitarian regimes. In the former the existence of
a “judicial space’ is essential if the “detour” of the resort to trial is to fulfill its
function of legitimating the governmental prosecution of the political foe.
Only if the courts are left a space of freedom to exercise their own, though per-
haps narrowly defined, judgment can political justice be expected to achieve
its assigned end. There must be some risk of divergency between government
and court, and thus some risk of the trial being used by the accused as a forum.
for effective advocacy of his cause. Where no such judicial space is left, the po-
litical trial can serve only the different functions of a potentially highly effective
means of a totalitarian government to educate the populace along the ways de-
sired. Whatever the regime, political justice “is bound to remain an eternal
detour, necessary and grotesque, beneficial and monstrous.”

This final judgment expresses the well-balanced nature of Kirchheimer’s
investigation of a topic that easily provokes partisan approach. Kirchheimer
leaves no doubt about his own convictions as those of a democratic, liberal
constitutionalist. But through his comprehensive knowledge of history he is
familiar with the complexity and inevitability of the problem. He pursues it
not as the pleader of a cause but as a scholar in search of knowledge and
understanding.

Kirchheimer is a political scientist and a sociologist. He looks at the phe-
nomenon of political justice from this outside point of view rather than from
the inside position of the lawyer.3 It is exactly this approach that makes his
work fascinating and important for the lawyer. The impact of the inquiry is due
not the least to the comprehensive scope of the author’s material. Political
justice has been treated in a flood of writing, especially in recent years when
it has become such a widespread and disquieting phenomenon. The number
of American discussions of American cases, practices and problems has been
legion. Nowhere else can the reader find such a wealth of material as in
Kirchheimer’s book, Consequently, the approach is from a higher level; phe-
nomena and problems of one country are reflected in those of another. Thus
new light is thrown upon the familiar phenomenon. The inquiry cuts down

2P, 430,

3 The fact that the author is not a lawyer has found expression in his unorthodox and at
times annoying mode of citing cases, American and foreign,

1962] BOOK REVIEWS 203

to fundamentals. The book constitutes a high achievement of comparative
Jaw as well as of jurisprudence. Law teachers might well consider its use as a
base for discussion in seminars or courses on jurisprudence. For one striving
at clarifying his thoughts about the problem of how to defend our social and
political system against its enemies, without in the effort undermining its very
foundations, Kirchheimer’s book is, I dare say, indispensable. To the judge,
attorney, or prosecutor involved in a political case, it will serve as a useful
practical guide.
Max RusINsTEIN*®

* Max Pam Professor of Comparative Law, University of Chicago.

7 rc

Political justice : ‘Tho use of legal proce-,
dure for political onds, par O. Krrou-,

XI ++ 452 p. — Princeton,

Press, Princeton 1961.

M. 0, Bireheimer procdde & une on-
quéte do sociologic politique. Quelle est,
on définitive la portée de Pemploi géné-!
ral des procédures juridietionnelles des’
fins politiques ? L’ane de ses conclusions’
mérite @’6tre notte : « Les instignteurs
aun procds politique foront face A bien|
des incortitudes s'ils veulent utiliser lai
forme juridique pour des buts dépassant}
Jo haredlement ou Vélimination un,
ennemi politique, ot stils désirent s’aven-t
turer sur lo terrain de la eréation ou de
Ia dostruction des idoles, Lies caprices dui
moyen quiils utilisent, la proeédure juri-
diquo, se combinent A leur besoin de
s'appuycr sur des témoins qui peuvent
vivre dang un monde politique qui leur
est propre, sans parler des adversaires:
qui pouyent imposer avec suects leur
propre interprétation au juge ou aux
jurés » (p. 118), L’ouvrage comprend
trois parties : (1) Affaires, causes)
méthodos; (IT) Lo juge, Vaccusé, ot
Y'Mtat; (III) Droits d’asile et de grace;

RB. Py
j

i
j
i

gem

Political justice : ‘The use of legal proce-
dure for political ends, par O. Kmou-
nome, — XI + 452 p. — Princeton
Uniwersity Press, Princeton 1961.

| Mx, O. Kircheimor here makes a sur
yey of political sociology, What, in the
last analydis, is the scope of the general
use of legal procedure for political ends ?
One of his conclusions is worth noting +
“Phe instigators of a political trial will
face many uncertainties if they want to
‘use the legal form for purposes beyond
harassment or elimination of a political
foe, and if they want to advance into
the territory of image-creating or destroy-
ing. ‘The. vagaries of the medium they
use, Jegal procedure, are compounded by
thelr need to rely on witnesses who might
be living in a political world of their
own, not to speak of adversaries who
may successfully urge their own inter-
protation on judge or jury” (p. 118).
‘The work falls into three parts 3
(X) Cases, Causes, Methods; (I) The
Judge, tho Defendant and the State;
(III) ‘Asylum and Clemence,

RP.
%

da Mid

th ty

Sah Longer’

Z

POLITICAL JUSTICE, by Otto Kirch-
heimer, Princeton: Princeton University
Press, 1961, 452 pp., $8.50,

This is an analysis of the compon-
ents and the strategy of political jus-
tice—the motives, techniques and ac-
tions of its practitioners and its vic-
tims. The author, a professor of po-
litical science at Columbia University,
discusses cases in which the rulers of
totalitarian, Communist and even
democratic states have used the agen-
cies of criminal justice for their own
purposes while trying to maintain a
balance between abstract justice and
political expediency. He examines the
structure of state protection, the forms
of legal repression used by the state
against political organizations and the
nature of a political trial. Basing his
analysis primarily on foreign sources,

- he covers the Nuremberg trials, the

Communist purge trials and a num-
ber of Smith Act trials., There is a
special chapter on “socialist legality,”
describing the nature of political jus-
tice in the USSR and Communist East
Germany during the Stalinist era and
after. Index,

‘asagstTesuil Rivarennime j
Otto Kirchheimer: POLITICAL JUSTICE—The Use of Legal Pro-
‘cedure for Political Ends. Princeton University Press, Princeton,
NJJ., 1961, pp. 428, $8.50, ~""" .

‘This book by a Columbia University professor of Political Science
is, in the judgment of this reviewer, a fine example of scholarly
writing; a kind of writing, which, all too often is marked by Jong
obscure sentences and the excessive use of footnotes. There are many

resno State College, Fresno,

Address: Professor William Dienstein,
California 93726.

calls,

footnotes in this book, but they serve only to reveal an enormous
amount of reading of yelevant material in several European Jane
guages. ‘The result is a veritable mine of information on the subject
of "Political Justice.” .

“livery political regime has its foes, or in due time creates them,"
is the opening sentence of the first chapter, True, and because of
this, from the very beginning of organized government, one of its
most perplexing problems has been how to deal with the dissenter
and the rebel,

No two political trials are ever exactly alike, but what the author
“S44 the two most momentous trials in history,” those of
Socrates and Jesus, illustrate points that arise in many such trials,
Socrates made, what we would call today, a defence of ‘free inquiry,”
and the right for one to follow his conscience, In the ease of Jesus,
the charge against him was that he had talked about his allegiance
to what seemed. to his hearers to be higher authority than the Roman
Emperor, ‘This same charge came to mark that trials of the early
Christians; and they, therefore, were convicted primarily on political
rather than religious grounds,

‘The problem of the critic and the dissenter has never been a diffi-
cult one for despotic governments, In Czarist Russia, as late as the
beginning of the ‘Twentieth Century, Nicholas II could sit down
at his desk and with’ a personal note banish even a Grand Duke.
And, of course, Hider, after attaining complete power, had no

+ difficulty in disposing of his enemies, Many think that such exercise

of absolute authority is a thing of the past, or is confined to Com-
muunist states, Not so says the author, for“... itis going on right now
under our very eyes in many non-Communist countries, such as Spain,
Portugal, Greece, Algeria, and, Isracl excluded, the countries of the
Middle East.”

But it is the constitutional governments that have the greatest.
difficulty in even approximately dealing out ‘justice’ to the dissenter,
“Constitutional governments have many times been able to curtail
drastically the activities of their adversaries. But, if they want by
death or imprisonment to eliminate them entirely from the com-
munity, they must utilize the agency of a court, with all the
hazards such action incurs,” a ,

‘The casual reader may ask; What hazards? 'The chief one always
present is that thoughtful people of a later period, perhaps only
ten or fifteen years, will raise the embarrassing question as to
whether justice was done the accused, In a chapter on “The Judge,”
the author, after citing many cases from the post war courts of
England, France, West Germany, the Scandinavian countries and
our own country says that in time of stress in which the public calls
for victims, it is the judge who has to make the most difficult
decisions, “Probably in no sectox of our population has there been
deeper soul searching than in the judiciary,”

In such a book the subject of ‘the jury’ could not be omitted, for
men still differ as to the usefulness and the fairness of this ancient
institution, One whole chapter is devoted to the subject. In the
course of an exhaustive analysis of the jury system, the author
mentions certain aspects of the juzy system familiar tovus in the
U.S.A, stich as the “Blue Ribbon” juries of certain N.Y, Counties;
the “government employee” jury of Washington, D.C; the “court
house loungers of many U.S. Counties; and the “all white” juries
of some Southern states,

Near the end of the book the author deals with what he calls
the ever present phenomenon of poltical asylum, Here is something
that begins as carly as recorded history and comes down to and
affects the latest defector from or to the Soviet Union, One prin-
ciple seems well established in such cases: namely, that asylum is
not a matter of right; but is a privilege to be granted or withheld.

We can bring this review to a close by saying it is evident in all
countries that the organized state is less just, less kind, less forgiving
than are the individuals composing that state, 'Y'o ask the state, which

| feels itself endangered, to be just is to ask the impossible, Long ago

the great German historian, ‘Theodor Mommsen said, “impartiality in
political trials is about on the level with Immaculate Conception;

! POLICE
SPRINFIELO, ILLe
: eam 4,000

oct i964.

one . . fe
. vA POLICE—Septemb’
|

one may wish for it but one cannot produce it. But the great Cardinal j
Richelieu, recognized as one of the great statesmen of all tine, put |
the matter more bluntly, He said, “In normal affairs, the administra- |

tion of justice requires authentic proof; but it is not the same in
++ There urgent conjecture must sometimes take |

affairs of state. .
¢ of proof; the loss of the particular is not comparable with

ation of the state.” As is evident, this comes close to the }
the means, and that is where we will |
j

doctrine that the end just
haye to Jeave the matter,
evitus Professor of Social Science, Fresno State }

T PHILLIPS,

College, Fresno, California 93701, =
oe Nance

‘politise

Die Justi he
eee : a ve . 5 8 ae
Bolitical Justice—The Use of Legal; Procedure for im-“Rheinischen*Merkur” auf die
Political Ends” by Otto Kirchheimer | > -., | bittete Tatsache hingewiesen, dass
"1961; $8.50 \ .|bei dieser Diskussion einige Juri-
. . ‘i ees Peet ee et sten° den’ Versuch machten, ‘ die
Otto Kirchheimer, in Heilbronn [ne .-Klarstellungen sind, - zeigt | strafprozessuale Bewaltigung von
geboren, Dr. jur, der Universitat jeine erst klrzlich: stattgefundéene Massenvérbrechen als juristische
Bonn, Professor an der ‘New |grosse , Diskussion iiber die Be:|Missgriffe abzuwerten.
School for Social Research in New | wiiltigung politischer Schuld in]. Das Buch Kipchheimers sollte
York, und letzthin Fulbright Pro- Strafprozesgen” vor “der | Katholi- | daher auch an ‘deutschen Univer-
. fessor in Feiburg i. Br. hat mit schen Akademie in Miinchen. Mit sittiten und Gerichten weite-Ver-

seinem Werk ,tiber die politische | Recht hat. Poul Wilhelm Wenger! breitung finden!;

- Justiz einen hervorragenden Bel~}. 70, . a :
trag zit Wissenschaft des Rechts Yt athe Price’ of Liberty” by Alan, Barth;

und der Politik geleistet, Auf 452 fg \lsthe Viking. Press, New York 1961, $450

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264 The Australian Journal of Politics and History

POLITICAL JUSTICE: The Use of Legal Procedure for Political Ends. By Otto Kirchheimer,
Princeton, Princeton University Press: Melbourne, Oxford University Press, 1061, Pp. xiv +
462. 88)-.

Implicit in Professor Kirchheimer's discussion of the use of legal proceedings by the pow
holders in the struggle for power which is called “politics” is the viow that law is both a function
of and a force in society, Judicial realism, which underlies the analysis Kirchhoimer presents,
accepts the view that both the law and society are in flux, with the latter moving at a faster pace
than the former; Jaw is not an end in itsclf but is a means to social ends. It is important to look
at the rules by which courts operate, but these are not the most important factor in the decision-
making process. Courts, often hold to be the interpreters of the law, are called upon to decide
questions relating to the political goals of the regime and, given certain exceptions peculiar to
constitutionalism, the courts act to “eliminate a political foc of the regime according to some pre-
arranged rules.” ‘The courts may give a necessary legality to formal restrictions placed on the
enemies of the regime, or they may inhibit certain activities of these enemies, or they may drama~
tise to the public the conflict raging betweon them and the regime, It is Kirchheimer's contention
that with the advent of mass society there has been a growth in the use of courts as political
weapons by political regimes; in a carefully documented, scholarly study, distinguished by a
methodology that is not found often onough in work done in the social sciences, Iirchhoimer
presents his case, It is unfortunate that the examples used to illustrate the discussion are drawn
almost exclusively from the history of Europe and the United States, but this is not. a very import
ant criticism, of the book.

Changes have come about in the type of protection afforded by the regime (the word is used
in the widest sense) to the political dissenter, Among the many changes analysed is one of par-
ticular significance to constitutional democracies: today, the regintie hands down punishments not
only to those who use violence to overthrow it but also to those who use propagandistic methods
to bring about the same result. Because of the effect of political propaganda in a mass democracy,
the arca of prohibited activity has become enlarged; a democratic government, faced with the
theoretical paradox of having to allow open dissension and, at the same time, to presorve itself,
must decide whether it will prevent or restrict such dissension. Germany and the United States
solved the problem with respect to the Communist Party one way; Australia, another. In dis-
cussing the approaches of these three countries, Kirchheimer differentiates between a theoretical
approach and a political approach; “While the man of theory might season that a basically sound
democratic socicty need not fear the appeal of antidemocratic philosophies, the practical politician
is likely to be more impressed with the assumption that those in charge will never tolerate adverse
activities that may canse-tangible damage.” ‘The judge will have to weigh the variables of the
situation (means-ends relations, advocacy of doctrine, past experiences, fulure possibilit
on) and then decide on the limits to be set to the dissension, Kirebheimer is not 50 naive as to
think that such a decision js one purely of Jaw or of fact; such questions are for him political
questions, but courts are, after all, involved in politi

Moreover, running throughout his analysis of this and ot}icr problems is the subtle but vital
distinction between the motives of the regime in acting as it does and the justification, by the
analyst, of those motives, Kirchheimer is interested in presenting the first while s
away from the second as po:
in setting the boundarie
Dut once the inquiry is

aying as far
ible, He tries to divorce the is and the ought for purposes of study
of his inquiry, the analyst has necessarily resorted to value judgments,
sot'in motion the analyst must try to not let his personal wishes intrude into
the discussion, _Kirebheimer is not always successful in making the separation, but at least he
gives the reader clear indication when he is justifying a regime's motives, In speaking of the ways
in which regimes come to terms with opposition of principle (eg, the reaction of the French and
Italian! governments towards the Communist Party), he discusses the contr
freed allowed such opposition and the actual restrictions placed in their way; here he takes no
sides. But, when he discusses the Nuremberg he nature of the charges and the rejoinders
of the erities of the trials--he not only shows what the Tribunal hoped (o accomplish bat also why
they were right; “while it retained many overtones of the convenience type of trial, did the Nurem-
berg trial, with all the hypocrisy and the grotesqueness deriving from its very subject, nol belong
very profoundly in the category of a morally and historically necossary operation 2"

between the formal

[Vee WM, de a, Nov 2]

Book Reviews é “ 265

What are the consequences of political justice ? Its aim is “to enlarge the area of political
action by enlisting the services of courts in behalf of political goals”, Particular ciroumstances
will dictate how a regime should deal with its foes, but the alternative to the “use of legal procedure
for political ends” is arbitrariness, a far Jess inviting prospect. Leaving aside the results, which
will be varied, political justice does, as Kirchheimer asserts, give a sense of order to the struggle for
political power, Up until this point, partioularzeare. has boon ‘taken; to-sum. up-what political
justice is. It is a subject of transient character: “changes in political requirements and per-
spectives are nonetheless in the nature of things.” Yet, Kircbhelmer also warns the reader that
“there are findamental minimum requirements of human decency which are valid for all regimes
and all proposed solutions and cannot be waived either in advance or retrospectively”, ‘There is a
tension between theso two ideas—a tension which Kirchheimer has neither analysed nor avoided,
What if those minimum requirements are not met? Is it then to be said that political justice
has not existed? If the terms aro so defined, as they are, to mean the use of legal procedure for
political ends, then reference need not have been made to these ultimate values. As Professor
‘Alf Ross has pointed ont: “Phe ideology of justice has no place in a reasonable discussion of the
value of laws.”

Canberra S, J. SILVERMAN

HOLMAN VERSUS HUGHES: Extension of Australian Commonwealth Powers. By Conrad
Joyner, University of Florida Monographs; Social Sciences, no. 10, 1961. Pp. 70. $2.

Joyner sets out to trace and analyse the tussle within the Labor camp between W. M, Hughes
and W. A, Holman over the 1911, 1018 and 1910 Commonwealth proposals for enlarged Federal
constitutional powers, Hughes of the Federal parliamentary wing of the party (in 1919 as a
Nationalist) was the moving spirit behind all three referenda, His old NSW Labor ally Holman,
first as Deputy Premier and then as Premier, was probably the key figure in opposition to at least
the first and second of these efforts at constitutional amendment.

This is one of the most promising Australian topics which any American Fulbright political
scientist has chosen. ‘The monograph here presented is, however, almost certainly too short to
do it justico, oven within Joynor’s choson limits, But the fact is that Joyner’s scholarship al
appears to be sadly inadequate to the job, He has apparently failed to assimilate the indis-
pensable background of fact and usage, while he himself is revealed as a ally sloppy scholar.
‘together, the monograph will disappoint and irritate scholars, and should not be placed in the
hands of young students who as yet lack the necessary equipment for picking their way safely
amongst misinformation and misleading material.

‘Tho onus is on a reviewer to substantiate such a sweeping condemnation, A complete bill
of partionlars would be too long and tedious, Some illustrations from the earlier pages must
gnffice, (1) In the matter of failure to assintilate eustomary usage: on p. Land elsewhere tho
term “coalition” is erroneously applied; on pp, 17 and 18 the term “budget speech” is most: mis-
Jeadingly used. (2) As regards inexcusable exrors: on p. 12 the statistics of the membership of
state parliamonts are haywire (incidentally Joyner appears unaware that at that time members of
the NSW and Queonsland Upper Houses were nominated and not elected); on p. 12 we are asked
to believe that there were only wages ‘boards and not industrial courts or commissions in (a
majority of) the states through most of the decade with which Joyner is primarily concerned; on
p. 13 the first Pederal Labor objective is attributed to the Fourth (Brisbane) Conference of 1908
jnstead of tho ‘Third (Melbourne) Conforence of 1905; on p. 14 (and 28) Holman is referred to as
NSW patliamentary leader in the period 1908-1] (which he was not untit 1913) and on p.. 17
MeGowen appears as NSW Premier in 1909 (which he was not wAUL 1910). Sloppiness reaches its
peak on p, 25, where of eight names mentioned in the text no fewer than five are misspelt and the
Labor MLA for Misrambidgee, and the fine old town of Wagga Wagga, appear as Victorian t

ctions still to Joyner’s monograph, Every author is
ewer would aud should be the last to object to a little

however, more serious obj
point of view and this re)

‘Vhere ar
entitled to bis.

Kirchheimer: Political Justice 679

of attitude toward the future may also be detected in many representatives of
Protestant theology, notably Karl Barth and Albert Schweitzer; Polak summarizes
the results of his penetrating analysis in an important chapter entitled “The Fu-
ture of the Christian Belief-system.”

It is impossible to do justice to the universal scope of these studies within the
limits of a review. They are nothing less than an intellectual history of the
twentieth century from the perspective of the image of the future. They reveal an
extraordinary degree of learning and a sensitive erudition even upon such sub-
jects as atonal music or abstract painting.

In his concluding chapter, Polak writes, “Western civilization is not lost be-
yond the possibility of salvation . . . if we can find the right answer to the almost
overwhelming challenge which the future offers to our time.” But here lies the
difficulty. ‘The trends that Polak analyzes so knowledgeably—existentialism, or-
thedox Christianity, and essence-pessimism—are in themselves symptoms rather
than causes of the evils that beset Western civilization. The image of the future can-
not be re-created by a simple fiat. Polak shows that he is aware of this inherent
contradiction when he admits, “To choose our vision, we first have to have a
vision.” It is here that the problem comes to rest.

Sweet Briar College Gerwarp Masur

POLITICAL JUSTICE: THE USE OF LEGAL PROCEDURE FOR POLITI-
CAL ENDS. By Ozto Kirchheimer, (Princeton, N. J.: Princeton University

Press, 1961. Pp. xiv, 452. $8.50.)

Prorgssor Kirchheimer of Columbia University and the New School offers
a weighty contradiction to Aristotle’s fond delusion that “the law is reason unaf-
fected by desire.” In brave leaps and broad bounds across time and place, the
author proceeds topically to examine the many guises that political trials have
taken, and assume today. He took on a task of large magnitude and great com-
plexity. The story of political justice involves governments, political parties both
legitimate and illicit, judges, lawyers, and defendants. It ranges from medieval
proceedings to the Hiss and Eichmann causes and to the 1961 term of the United
States Supreme Court. Considering the scope of this work, it is very much to
Kirchheimer’s credit that he kept control of almost all the many threads from
which he wove this narrative.

He lets the reins slip only rarely, and perhaps because the author is more at
home in European sources than in matters concerned with the United States. As an
example, the footnote on page 137 contains minor errors. A mistake of greater
significance occurs on page 407, where Kirchheimer suggests that Lincoln’s 1863
pardon program had little immediate effect. The evidence points to a sharply dif-
ferent, if not opposite, conclusion.

Kirchheimer has not merely catalogued causes célébres. Rather he picked and

680 Reviews of Books

chose, primarily from Europe’s history, for instances of political justice and injus-
tice that illuminated his thesis. Some readers may protest that the author con-
centrated on Western Europe, but omitted comment on Spain or Latin America.
‘There was quite enough to occupy Kirchheimer in what he undertook. His omis-
sions suggest the need for a companion volume rather than an imbalance in the
present one,

I find more to criticize in the topical organization that the author employed.
It led to piecemeal reporting and analysis and to repetitive summaries, This organ-
ization, together with the “academic” prose style that dominates and strait-jackets
the flow of narrative, makes progress through the text glacially slow. Ironically,
Kirchheimer in a footnote describes a book as a story “told in stilted narrative.” So
is this one, except for infrequent and welcome flashes of warm, vivid imagery.

This is, nevertheless, a learned, successful, and significant work. For the first
time, a reliable, thorough guide is available to those power mechanisms function-
ing through the courts that have played such an important role in the development
of modern nations, These mechanisms, Kirchheimer depressingly concludes,
promise further to expand the use of political trials even in the free Jands of the
world, More than ever, courts will be involved in politics, if only because cold
war pressures are almost everywhere bringing forth enlarged internal security
programs.

Whatever the pattern for the near future, Kirchheimer deserves the gratitude
of all those who seek guidelines from the past. His book is destined for extensive
use by workers in constitutional history and by all students of history and govern-
ment. I hope that makers of policy as well as scholars read it.

University of California, Los Angeles Haroty M. Hyman

EMPIRE. By Richard Koebner. (New York: Cambridge University Press, 196r.

Pp. 393. $8.50.)

Scxotans have been impatiently waiting for this book since Professor Koebner’s
learned and weighty articles on its themes began to appear in English historical
journals some years ago. It exceeds their high expectations, which were based on
more than the articles, The extraordinary depth of his learning in wide fields of
history from classical to modern times impressed those who met him in London,
where he settled in 1953, after retiring from the Hebrew University of Jerusalem.
His interest in the book’s theme, stirred when, as a rising German historian, he
paid a visit to England in the mid-twenties, was intensified by his experience of
empire under international mandate in Palestine. This first volume, long in
preparation, carries the story down to the Napoleonic period. The second, now
being written from Koebner’s drafts and notes, brings it down to the present day.
Seventy pages of critical and bibliographical notes add great value to the book,

The theme of the book is the history of the word and idea of empire (imperial,

(
i

‘e de faire retour

i Se iCKE
15, Alles Teg OE

uves corrigées 3 : ‘vise, SCEAUX

KIRCHHEIMER (Orto) -—~ Political jastice, The use of legal
procedure for political ends, — Princeton (N.J.), Princeton Uni-
vessity press, 1961, 24 cm, xiv-452 p. Index. $ 8.50,

Voici un ouvrage de grande valeur dont il faut espérer une prochaine
édition francaise. Pour, s'attaquer a un tel sujet, l'auteur devait étre & la fois
juriste et politiste, avoir une large culture historique ‘et un sens aigu des réa~
lités de notre temps. Otto Kirchheimer remplit parfaitement ces conditions. De
plus, sa triple expérience de I'Allemagne, ;de la France et des Etats-Unis,
oti il occupe une chaire de science politique & la Columbia University aprés
avoir été pendant de longues années chargé des affaires europégnnes au
Département d'Etat, lui a permis de se placer tout naturellement dans une
perspective comparative et de tenir compt A chaque instant de la tradition
juridique et idéologique du pays considéré, a richesse de la documentation est
@onnante. Les références a la France, par exemple, ne comprennent pas seule-
ment deg livres du xix® siécle ou des traités de droit, mais aussi les analyses de
Casamayor, les articles de J.M. Théolleyre, tles prises de position de M* Halimi
dans les Temps modernes, incorporant encore le bilan «Les atteintes & la
streté des Francais» paru dans Esprit en‘ mars 1961, La documentation alle~
mande ou américaine est aussi variée et alussi A jour.

Pour exposer les résultats de ses recherches et de ses’ réflexions, Kirch-
heimer a rencontré une difficulté classique: comment faire comprendre la
complexité d'un cas sans se perdre dans. les détails? Comment systématisé?
sans renoncer a l'analyse minutieuse ? fl I'a résolue par un Compromis qui @
T'avantage de rendre la lecture 4 la fois variée et constamment intéressante,
et T'inconvénient de faire perdre parfois le fil du développement, retena qu’otl
est pendant un long moment par exposé détaillé d'une affaire particuliére.
L'auteur entreméle en effét exposé syhthétiqué et Ia présentation par la
méthode des cas. C'est ainsi qué, Sur les six Sections du chapitre I, «Le
procés politique >, cing sont systématiques. Mais apres «Procés politique et
procés criminel > et « Le’ procés- pour meurtre comme arme politique > on
trouve < Etudes de cas pour la signification de Ja trahison» avec une présen*
tation originale dé deux procés célébres, Yaffaire Caillaux ‘ou le cas de
«Topposition comme trahison> et ie procés en‘ diffamation intenté par le
président Ebert contre un journaliste de droite, Parfois, cest la majeure partie
d'un chapitre quiff est consacrée sinon @ une seule affaire, du mains a un seul
pays: le chapitre <Le « centralise démocratique ” et l'intégration | politique
‘Allemagne de I'Eétf‘et la mioitié du chapitre, « Jugement, par ordre du régime
Successeur » parle du proces de Nuremberg. Mais gu’il s'agisse d'exposé systé~
matique ou d'analyse de cas, jamais Kircbheimer ne verse ni dans I’abstraction
gratuite ni dans le récit aneedotique, : “

Le livre est divisé eh trois parties inégales, ja troisiéme traitant de deux
gujets qu'on ne rattache pas d'habitude a la justice politique: le droit d’asile
et Ja clémence, cette derniéve incluant les divers types d'amnistie. Qu'est-ce
gui caractérise donc cette justice politigue dont le contenu et les méthodes
sont étudiées dans la premiere partie? C'est une justice oi « l'action de la
Cour est mise en oeuvre pour exercer une influence sur la distribution du
pouvoir politique >. Cette action peut étre amenéé par ‘un gouvernement contre
kes ennemis politiques, par un régime contre ceux qui le mettent en cause,
par les adversaires des gouvernants’ pour les discréditer, etc. L'utilisation
de la procédure est parfois- plus déterminante gue Je contenu de l'accusation
pour savoir s'il y, a procés politique (affaire Calas, affaire Kravchenko, etc.)
De plus, l'état de lopinion, la natiare de V'idéologie dominante, les mécanismes

wv

institutionnels eux-mémes interviennent san3 cesse dans |’élaboration et linter-
prétation de la loi, Ainsi le simple désir. d'un changement constitutionnel a
longtemps été considéré comme un délit, Dans la plupart des pays « occiden-
taux», il n'en est plus ainsi, En revanche, toute une philosophie juridique
de T'atteinte a la sdreté de I’Etat, de la subversion non seulement exécutée
mais projetée s'est développée dans les Etats qui se veulent les plus libéraux.
Kirchheimer analyse la loi fédérale suisse.de 1950 et l'affaire André Bonnard
qui en est résultée (un professeur. a l'Université de Lausanne avait communi-
qué des renseignements sur la Croix-Rouge suisse au Mouvement de. la
Paix), Il s’étend plus longuement sur J'étrange situation de la République
fédérale face a {Allemagne de l'Est, étufliant notamment les affaires John et
Agartz. Il consacre un chapitre entier & «la répression Iégale d'organisations
politiques > en partant de nombreux cas du xix® siécle pour aboutir a un
examen serré des critéres de répressioni ; utilisés contre les groupements con-
sidérés comme antidémocratiques. Dang le cas de action anticommuniste aux
Etats-Unis et en Allemagne, le verdict de la Cour, dans la mesure oi il est
fondé sur la doctrine du groupe incriminé plut6t que sur son action, devient,
selon la formule du juge Jackson, «une prophétie sous forme de décision
Kégale ». Les conclusions que Kirchheimer donne a ce chapitre sont pondérées
& souhait.

La seconde partie est consacrée aux acteurs: le juge, l'accusé, le défenseur,
VEtat. L'auteur montie I'influente qu'exérce sur la justice politique la socio-
logie de la magistrature. Dans sa conclusion générale, il insistera de nouveau
sur le réle particulier des magistrats s'il y a changement de régime (il cite
Pasquier disant en 1850; «Je suis l'homme de France gui a Ie plus connti
Jes divers qouvernaments gui se, succédept : je leur ai fait & tous leur proces »)
et sur la notion d’ < espace judiciaire », ‘c'est-a-dire de pouvoir Vappréciation
laissé au juge par le pouvoir ou par l'idéologie dominante. Le comportement
de f'accusé est surtout intéressant a étudier a propos de- sa volonté d'iden-
tification & un groupe, tandis que le probléme de I'avocat est celui de I'identi-
fication A la cause politique du client, Nous ne pouvons pas entrer dans le
détail de considérations dont la pertinence et l'actualité sont saisissantes si on
les applique a la France des années 60,

On peut bien entendu regretter que, tel ou tel aspect auquel on attache
Soi-méme de l'importance n'ait pas été mjeux mis en évidence. Ainsi la notion
de légitimité, ainsi le concept de trahison, Tel ou tel passage peut aussi
paraitre insuffisant, Les quelques pages célasacrées & la justice sous le IIT’ Reich
sont bien rapides, On doit aussi déplorer l'absence de toute bibliographie systé-
matique, Mais il est difficile de ne pas admirer et approuver la lucidité et la
netteté des conclusions qui montrent a Ya fois la faiblesse et l'utilité de la
justice politique. La faiblesse est généralement admise, Qui ne dirait avec
Kirchheimer: < S'il est vrai que le jugertgnt peut entrer dans I'histoire, il est
rare qu'il devienne le verdict rendu par l'histoire elle-méme »? L'utilité résulte
déja de la supériorité que la procédure ‘présente par rapport a I'arbitraire pur.
Elle provient aussi des répercussions du “procés sur l'opinion et, par contre-
coup, sur la répartition des forces politiques. La caractéristique fondamentale
de ce livre si riche et si stimulant est ut-€tre d’étre vraiment un ouvrage
de science politiqué, c'est-a-dire de tenir compte de toutes les dimensions psy-
chologiques, sociologiques et institttionnelles d'un sujet en apparence purement
Jividique.

i Alfred Grosser

Yale Law Journal, June 1962

1364 THE YALE LAW JOURNAL [Vol. 7111381

Potrrican Justice: Tae Use or Lecat Procepurn vor Pourrican Enns. By

Otto Kirchheimer.* Princeton, N,J.: Princeton University Press, 1961. Pp.

xiv, 452, $8,50,

Proressor Kirchheimer’s book is a richly detailed study of a subject which
has received less than deserved attention in English and American publications,
By the author's definition, “The aim of political justice is to enlarge the area
of political action by enlisting the services of courts in, behalf of political
goals.” This purpose involves the partial or complete destruction of what
Professor Kirchheimer calls “judicial space”—the tncertainty of judicial re-
sult which reflects the impartial deliberation of a court insulated from legisla-
tive or executive control. In its most blatant form, political justice transforms
the judge into a virtual “errand boy” who must follow the latest signals from
the political authority above him.

Professor Kirchheimer is fully aware of what Max Lerner, writing a
generation ago, called the “relativist character” of political justice. In a
procedural sense, it is often difficult, indeed, to draw the fine line between a
true court and a drum court. In a substantive sense, what is or is not
“political” varies in time and place. This relativism is abundantly demonstrated
in an early chapter entitled “The Political Trial,” which surveys such widely
disparate situations as the crime of murder committed for political purposes
after the contested 1899 Kentucky gubernatorial election, the rigged treason
trial of French statesman Caillaux after World War I, the 1924 defamation
action of Reich President Ebert, various Swiss and West German cases
arising in the 1950’s under broadened ranges of political offenses, and Stalin
type trials which pass beyond the pale of constitutionalism. In addition to the
relatively familiar techniques of repression and trial to which a regime may
resort against its foes, the author also examines three extraordinary devices
of political justice: asylum, clemency, and the Nuremberg-type trial by fiat of
a successor regime.

The endless variety of motivation, strategy, and. result involved in the use
of political justice obviously fascinates the author, and certainly he is effective
in transmitting his fascination to the reader, Under what circumstances is it
strategically necessary, possible, or convenient for a regime to resort to courts
for political purposes? How effective is political justice in “legitimizing” or
“validating” a regime, in integrating society around its goals, in providing some
sense of vicarious popular participation in the regime, in creating out of past
events useful images for future purposes, or, most crudely, in eliminating foes?
To what extent is “political justice without risks” a contradiction in terms in
the sense that rigging the results of adjudication ahead of time betrays the
desired impression of “legitimacy”? How are the traditional relationships
among judge, jury, prosecution, defendant and defense counsel perverted once
courts are forced into the arena of political strife? Finally, to what degree is

*Professor of Political Science, Columbia University,
P49,

1962] REVIEWS 1365

political justice normatively justifiable, or preferable to other more direct forms.
of political action?

In this reviewer’s judgment, the book deals most successfully with these
questions in the two chapters on “Legal Repression of Political Organizations”
and “Democratic Centralism.” The first analyzes the motivations, criteria, and
efficacy of American, West German and English attempts to repress the Com-
munist party. The author clearly favors the English policy of repression only
after specific acts violating the legal order have occurred, in preference to the
American attempt to judge on the basis. of inferred, remote consequences, or
West Germany’s total proscription on thé basis of party doctrine. However, he
recognizes the unique political and legal context which the English solution
reflects, as well as the respective impacts. of foreign policy and domestic
political factors on West German and American patterns of repression.
Touching briefly on the grave difficulties of repression once the target has
become a mass movement, as in France or Italy, Professor Kirchheimer
reaches the sobering conclusion, “The course of repression in a democratic
society is paradoxical indeed. When foreseeably effective, repression seems un-
necessary; when advisable in the face of a serious threat to democratic in-
stitutions, it tends to be of only limited usefulness, and it carries the germ of
new, perhaps even more menacing dangers to democracy.”?

The chapter on “Democratic Centralism” moves beyond the pale of constitu-
tional procedure to expose brilliantly the anatomy of political justice in con-
temporary East Germany. Here “maximal harmonization of judicial activity
with official policies” is achieved through an elaborate array of formal and in-
formal control devices, including uncertain tenure, extraordinary appeals, and
interference in the process of adjudication by party functionaries. “No de-
cision of any consequence can ever be established as a precedent unless it
conforms to the official policy of the day.”® In turn, the norms which con-
stitute official policy are in constant “gyration” and “fluctuation,” depriving
East German legality of even minimal coherency.

If these two chapters display the impressive scholarship, insight, and judg-
ment which characterize the book as a whole, they also have a sharpness of
focus which the book’s over-all analysis lacks. Although Professor Kirchheimer
is very much aware of the relativist character of political justice, it is perhaps
not unfair to say that he seems to relish that relativism rather than attempt-
ing to structure it. The hook is rich in analytical insights, but, to borrow from
the title of one of Isaiah Berlin’s books, they are the insights of the “fox,”
not of the “hedgehog.” They do not build toward any overreaching thesis or
Gestalt. At the end of the book, one is immensely better informed than at the
beginning, but also curiously uncertain about the conclusions to which the
argument has led and whether the outlines of the category of political justice
have been sharpened or blurred, The word “panorama,” which the author

P.172.
P, 266, “ “I

SR

1306 THE YALE LAW JOURNAL Vol. 71: 1351

disclaims at the outset, may well be the fairest description of the work. It is
of course no criticism to say that the panorama does not survey all the
phenomena of political justice. The very selectivity of materials, however, may
carry with it the obligation of a somewhat sharper focus than Professor
Kirchheimer achieves. To change the metaphor, the proverbial Procrustean bed
was surely not the only alternative. For example, the author might have
worked more explicitly within the configuration of history, as he did in his
earlier co-authored book, Punishment and Social Structitre. Despite his greater
concern in the present work with the contemporary period, he does draw
frequently on historical materials and is clearly preoccupied with the nation-
state’s retreat, since World War I, from its earlier “magnanimity” toward
political dissent. More pointed emphasis on this historical theme throughout
the book would perhaps have tightened up the analysis.

Since the concept of “judicial space” is also an important concern of the
book, another approach might have been to place the phenomena of political
justice on a continuum ranging from maximum to minimum judicial space.
Although there is more than a hint of such a continuum in the work as it
stands, this approach also is never developed in any explicit fashion. Had it
been, a number of important problems might have been faced squarely rather
than obliquely. In a book which is scarcely “value free,” it is more than a
little disconcerting that the analysis is not really grounded in any clear theory
of law. True, Professor Kirchheimer does lay out something of a model of
“judicial action,” emphasizing the procedural norm of immunity from govern-
mental pressure, the “interstitial” character of a court’s individualizing of
general rules to particular cases, and the reciprocity which ought to exist he-
tween adjudication and community values. Yet, this model comes at an odd
point almost half-way through the book and its relation to the over-all analysis
is disappointingly unfulfilled. For example, the author never quite comes to
terms with the classic question, “What is a legal system?” Grant his dismay
with the erosion of impartiality, the capricious fluctuation of norms, and re-
course to retroactive, unpromulgated “legality,” where along the continuum of
decreasing judicial space does a legal system cease to exist, if it does? In light
of much of the material with which the book deals, this is obviously more than
a moot question.

Aside from the emphasis on impartial, coherent, regularized procedure,
one is also puzzled by the degree or sense in which Professor Kirchheimer is
concerned with the substantive content of norms. At one point he observes that
courts succumb to political partiality most frequently in fragmentized political
contexts, as did Weimar Germany, or during a totalitarian regime’s attempt
to impose from overhead a new ideology on society. Then, somewhat later in
his’ discussion. of East Germany, he concludes, “When the regime’s major
goals have been fulfilled and its spiritual and social dominion safely anchored,
the eternal guard against individual slackening may he relaxed—and.a referee
allowed to mark points for both sides.”* This may indeed prove to be an ac-

4 P, 299.

1962] REVIEWS 1367

curate prophecy, but one wonders exactly what it mcans in terms of political
justice. Once the totalitarian regime has triumphed, and judicial space is
restored, does the phenomenon of political justice end? Probably not. First,
there will probably still be occasional extraordinary instances of interference
with the referee. Second, in a more profound sense, tolerance of the referee re-
flects not only the regime’s secure establishment in society at large, but also
the fact that the politicizing of the judiciary itself has been carried through
successfully. Norms may now be coherent and regular, but their content and
the courts implementing them are still “political.” It is this second point that
Professor Kirchheimer, in his seemingly positivistic emphasis on regularity
and coherence, does not make sufficiently explicit. It would certainly be unfair
to imply that he is oblivious to the substance of norms, or unaware that,
procedure aside, the substance of a norm can itself be oittrageous. On a number
of occasions he even seems to use the language of natural law in condemning
“atrocious offenses against the human condition” and postulating “fundamental
minimum requirements of human decency.”® Indeed, it is ultimately in these
terms that he judges Nazi Germany and justifies that unusual instance of
political justice, the Nuremberg trials. One may agree with his normative con-
clusion, however, and still be disconcerted at the failure to establish a bridge
between his preoccupation with regularized coherence on the one hand and
these apparently substantive natural law standards on the other. Professor
Kirchheimer may well agree with Professor Lon Fuller that “coherence and
goodness have more affinity than coherence and evil.” But if he does, this
assumption receives no clear recognition or elaboration. The result is ambiguity
not only in the author’s own view of law, but also in the objective relationship
that political justice may have to the problem of positivism versus natural law.

Finally, the notion that political justice appears most frequently in frag-
mentized political contexts raises a question about the institution of judicial
review as practiced in America. Although Professor Kirchheimer discusses
various specific instances of judicial review, he does not identify the institution
in general as an illustration of political justice, Assuming the wide range of
purposes and devices which the author surveys, however, perhaps it is quite
possible to consider American reference of high policy issues to judicial
tribunals as an interesting example of the very subject of the book. This sug-
yestion is offered with some hesitancy and full awareness of the difficulties in-
volved. At the same time, surely judicial review does involve courts in the
arena of strife over political goals, It is also significant that while Professor
Kirchheimer sees a regime’s desire to “legitimize” its actions as a perennial
motive.for the resort to political justice, Professor Charles Black in his recent
book on the Supreme Court © uses this same phrase repeatedly in describing
the function of judicial review over legislative and executive acts, Professor
Black: of course views this legitimizing function as instrumental in the engi-

5. Pp, 341 and 429. See also pp, 322 and 328.
6 Buacx, Tr Porte anp ran Covier (1960).

1308 THE YALE LAW JOURNAL [ Vol. 71:1351

neering of consensus in the American polity. Granted that there may be a
reciprocal relation between judicial review and such consensus, one can argue
that Professor Black really has the cart before the horse and that essentially it
has been the pre-existence of a deep, pervasive consensus on basic values which
has made policy issues susceptible to legalistic decision in America, In any event,
we are left with a seeming paradox: on the one hand, political justice seems
generally to reflect a fragmentized political system, but, on the other hand,
we find it in a highly integrated, homogenous polity as well.

Professor Kirchheimer’s response would undoubtedly be that the preserva~
tion of “judicial space” in the American system removes judicial review from
the range of political justice. This is not entirely satisfying. However, after
mentioning the 1949 New York Smith Act trial, the author himself says of
the judge caught in such a situation, “Unable to afford what constitutes the
most awesome as well as the most creative part of the judicial experience, the
entertaining of a small but persistent grain of doubt in the purposes of his
own society, he becomes merely the legal technician shuffling formulas to fit the
purpose of the day,” If this seems an extreme example, one may nevertheless ar-
gue more generally that American society does trust its judiciary with the ad-
judication of high policy issues precisely because we are assured from the
start that courts will confine their speculation to a relatively narrow range of
value alternatives. As with the secure totalitarian regime which can begin
to tolerate a neutral referee, we permit judicial space because we know fairly
well in advance what courts are likely to do within that space. This of course
suggests an eternal paradox of freedom in general: societies and regimes
usually grant freedom when they are reasonably confident that individuals will
exercise it in conformity with certain basic norms—in other words, when those
receiving freedom are already wnfree in the sense of having been conditioned
by common habit, custom, and ideology. Under other circumstances, the grant
of freedom is a standing invitation to anarchy. One can surely say this without
denigrating the difference between. a consensus on values which emerges within
or from society itself and a consensus imposed from, overhead by force or
indoctrination, Yet, whether we are thinking of individuals or courts, there
remains a curious, inescapable relation between freedom and umfreedom.

Against this background, the concepts of political justice and judicial space
acquire a certain air of unreality. Perhaps the underlying issue is not so much
between “legal” and “political” justice as it is between different kinds of
politics, Perhaps indeed one can argue that all justice is political, but that
we somehow choose to identify it as such only in certain circumstances, One
possible hypothesis might be that these situations usually involve some hasic
challenge to existing social and political order. If this is at all plausible, perhaps
we can begin to see the point of convergence between the two approaches to
political justice suggested here—the configuration of history and the continuum
of judicial space. Clearly “magnanimity” toward political dissent in the lattet

7 P, 233,

1962] REVIEWS 1369

part of the 19th century reflected the relatively secure establishment of the
bourgeois nation-state. Equally clearly, the social and political order which
that state embodied has been under continuing, fundamental challenge since
World War I—under a challenge which has inexorably “politicized” an ever-
widening range of human endeavor, including not only science and literature,
but also the judicial processes through which men seek justice. Professor
Kirchheimer dedicates his book to “the past, present and future victims of
political justice.” Victims there are, But in a deeper sense, they are victims not
simply of subversion control laws and drum courts, but of an as yet undeter-
mined sea-change transformation in the structure of nations and societies,

Vincent E, Srarzrncert

Ancient Roman Srarures, A translation with Introduction, Commentary,
Glossary and Index. By Allan Chester Johnson,! Paul Robinson Coleman-
Norton,? Frank Card Bourne? General Editor, Clyde Pharr.* Austin: Uni-
versity of Texas Press, 1961, Pp. xxxi, 290, $15.00.

‘Tits volume contains translations of 332 chronologically arranged texts pre-
pared by a team of classical scholars and forms the second step in the ambitious
project of publishing a translation of all the source material of Roman Law,
‘The first volume is Professor Pharr’s translation of the Theodosian Code.® The
editors report progress with Justinian’s Corpus Juris Civilis, It should be said
at the outset that the physical form of this volume is of a very high order and
most creditable to a University press.

The title is somewhat misleading. Many of the texts are leges in the strict
legal sense of comitial legislation and a great many more are within the ex-
tended (and perfectly justified) definition of Jer in the Glossary.® But likewise
there are many documents of a judicial and administrative nature which are
very far from legislative in character.? In this connection it is important to
notice the criteria of selection which the editors have adopted. These are set
out in their Introduction and expressly exclude, inter alia, illustrations of
applied Jaw or negotia, and texts quoted in imperial codifications. Though
neither exclusion is in fact complete, this last self-denying restriction has en-
tailed the exclusion of much that one would otherwise expect to see—the ler

Assistant Professor, Department of Government, Dartmouth College,

1, Late, West Professor of Classics, Princeton University.
Kennedy Associate Professor of Latin, Princeton University.
Associate Professor of Classics, Princeton University.
Research Professor of Classical Languages, University of ‘Texas,
Turoposian Cove (Pharr ed. 1952).
P. 267,
E.g., p. 124, Doe. 147 is a cognitio of Augustus on a homicide appeal where the
issue concerned the criminal liability of the owner of a slave who dropped a chamber pot
on the head of the deceased when the latter was attempting to break into the defendant's
dwelling. ‘

NOSED

——
Pourrtcat Justice; The Use of Legal Procedure for Political Ends.
By Orro Kircnusrmer. [Princeton University Press; Lon-
don: Oxford University Press. 1961. xiv and 452 pp. (with
index). 68s. net.] aaloe

Turs is an important book. Although much has been written on political
justice and many aspects of it have received close study I am not aware that
any full length study of it has previously been made, at any rate in English.
The book, as appears from its sub-title, is concerned with the interplay of
politics and law, or rather of politicians with the lawyers of whom they make
use for the purpose of overcoming their political opponents, The author is
exceptionally well equipped for his task, to which he brings a wide general
culture, long experience of the working of an important civil law system (that
of Germany during the inter-war period, a time of considerable tension), and
a subsequent career of distinction as a professor of -political science at
Columbia University.

Politics and justice are uneasy, indeed unhappy, bed-fellows. To the
layman political justice is a contradiction in terms, and few lawyers would
disagree with this opinion. Moreover, most people would say that there never
has been a time when political injustice was more rampant and blatant than
it has been in the present century. Professor Kirchheimer’s study is mostly
concerned with the history of our own times, but his book frequently harks
back to earlier periods, even as far as classical Greece and Rome, and what
he has to say about those ages suggests that we in our time have been no
worse off, indeed perhaps rather better; for over the years methods of temper-
ing the wind to the shorn sheep have been perfected, and have come into more
widespread use, however sporadic ond fitful this may have been. Moreover,
difficult as it may be to pierce the fog of propaganda and counter-propaganda,
the fact that the eye of the world is easily turned to any area in which
injustices are alleged to be occurring is undoubtedly not without its effect.
Thus, when the International Commission of Jurists issues one of its reports
the Press coverage is very wide, and the reactions of the parties reported
upon show a noteworthy sensitivity to criticism.

In theory, political justice is concerned with the protection of the state
against its internal enemles who may of course include external foes who have
planted themselves within the territory of a state for ease of operation. In
practice, of course, a social class which has secured power, or even a set of

Jury 1963 REVIEWS 457

party politicians, may equate themselves with the state for purposes of
protecting their own interests. It is naturally the second type of political
Justice, in practice almost invariably unscrupulous, and often cruel in addition,
which attracts the hostility of the historian or the contemporary critic, But
actually the worst excesses have often occurred with the support of the mass
of the community at times when a state has in fact been in peril; for the
maxim salus populi suproma lew is apt to give carte blanche for oppression,
and Professor Kirchheimer gives many instances of this,

The analysis is divided into three major sections. In the first the author
is concerned with the actualities of political justice which in effect centre round
the destruction or weakening of opposition groups, either by bringing the
leaders to trial or repressing them, perhaps by flat-out methods, perhaps by
sapping and undermining: these latter may be administrative, but more likely
will bring in some semblance of legality, for as de Toqueville observed in a
passage of profound insight which Professor Kirchheimer quotes at the very
forefront of his work, the opinion of mankind grants authority to the inter~
vention of courts even when the substance of justice has long evaporated from
their operations,

The structure of state protection has varied a good deal down the ages, but
in the era of constitutionalism it became pretty well accepted in modern states
that regard should be had to legal process, and even in the totalitarian era
lip-service has continued to be paid to this principle,

Professor Kirchheimer has some shrewd, if rather unkind, remarks to make
about the attempts of conventional lawyers to evade the issue of the political
trial by the contention that it is not to be differentiated from an ordinary
criminal trial, He contends that the identical character of the procedure should
not lead to confusion as to the objectives belng the same, It might perhaps
be said that the more liberal the state the more the two types of trial
approximate, and certainly in England it is a narrow run of cases which could
qualify for the distinction, since our political trials are now almost invariably
framed under special statutes, sedition cases having become exceptional.

Professor Kirchheimer, however, has no difficulty in producing examples of
political trials from modern liberal states. Thus he gives a fascinating account
of how Clemenceau was able, to immobilise his opponent Caillaux, the chief
protagonist of a negotiated peace during the First World War, by an
accusation of treason, never of course tried out.

More generally useful in liberal states because it does not require war, or

near war, conditions to get it going, is the libel suit. To goad a political
opponent into an action for libel is an old trick, and one for which left wing
politicians should seldom, if ever, fall, Should they do so, they will not only
imperil their own carcers, but may well prejudice the political standing of the
party to which they belong. The Wbert case, fascinatingly unravelled here, is
@ classical instance of this: it undoubtedly helped to bring the Weimar
Republic and all that it stood for into disrepute, Professor Kirchhelmer
stresses how political propaganda can be magnified via court-room proceedings
in a mass democracy where a cheap Press is at the disposal of the politicians
conducting the offensive,

How the area of prohibited activity may be enlarged so as to bring
opponents within the net of the law is shown in the next section; though the
operators must be pretty wide-awake or the weapon may turn in their hands,
This of course happened more than once with the Nazis,

Trials are not effective for these purposes unless held in public, or at any
rate partly so. And in the modern period this means on a world stage where
something may go wrong with devastating results, So on the whole the
opposition parties will be repressed by other means. How far these other

means should be legal, superficially at any rate, may be difficult to judge.

458 {HE MODERN LAW REVIEW Vow. 26

‘The various factors involved in such decisions are most interestingly analysed
by Professor Kirchheimer in the fourth chapter.

In Part II, which is the longest in the book, the author deals with what
most lawyers will regard as the most fascinating and worrying area of his
subject; that is the personal part played in all this business by judges, lawyers,
and others who are brought in to administer the so-called justice. Many
aspects of this side of the matter, which will probably not have occurred to
English lawyers, are brought out here, such as the peculiar vulnerability of
most Continental judges, whose careers are entirely in the hands of the
political administration, to pressure from that source. Professor Kirchheimer
Pas much of interest to say on the subject of the selection and promotion of
judges in the light of this political problem.

In totalitarian states the show of impartiality on the part of the judiciary
is hardly maintained, and it is here where “democratic centralism” is the
slogan that the most obvious injustices are apt to occur. Nevertheless, the
Situation is only superficially simple, and much light is in fact thrown upon
“the nature of law and the judicial function” even in the unsavoury
surroundings of Nazi and Stalinist repression.

Jn this section of his book Professor Kirchheimer devotes a great deal of
space to a rather elaborate discussion of the legal activities of successor
régimes, ‘The increasing importance of the political trials held by victorious
Retions after wars, or by successful parties after civil wars, is in itself a
recognition of the place which justice holds in the minds and hearts of men.
Suecessor régimes have been sensitive to this, but they are even more sensitive
to the need for the maintenance of their prestige. This means that the trials
must result in convictions, at any rate in the more important cases. There
has of course been a flood of argument on this subject since Nuremberg, and
‘Western writers have tended to be apologetic about the whole business.

Professor Kirchheimer in a moving passage puts the subject back where it

ought always to have been, in the sphere of justice, We are searching, he says,
“for a fundamental notion to which all groups and nations must at least
submit, if not always subscribe. Respect for human dignity and rejection of
the degradation of human beings. . - ” All that he has to say in this chapter
is worthy of close attention.

Fascinating ond thought provoking as are the earlier parts of this book
it must be confessed that they make gloomy reading. In the third part we
get some relief, for Professor Kirchheimer here discusses those elements which
fove from early times acted as a break in many of the worst periods of
political injustice. I hope that I shall not be regarded as cynical when 1
mention that this is very much the shortest section of the book, The most
important of these, legally speaking at any rate, is asylum. And it is
characteristic of the author's wide-ranging scholarship that he introduces this
subject with on incident from Herodotus. Asylum was of course well recog-
nised in classical times, but legally it hag always been a “ perplexing subject.”
Recognition as a “right” in the Universal Declaration of Human Rights
possibly enhances its prestige as an institution, but it may be doubted whether
this has been of any real help to any one refugee, and as Professor Kirch-
heimer himself points out, changing concepts in relation to extradition have
in the atmosphere of ideological struggle and the cold war done « great deal
to weaken the value of asylum, In Great Britain, which formerly prided itself
upon being a refuge for the politically oppressed, political defences to extra-
dition applications seldom seem to succeed, and one feels that the old liberal
attitude of our courts has been a casualty of the cold war, if indeed it had
not become moribund in an earlier generation.

Clemency is of course another possible outcome of a political trial, and does
in fact occur from time to time, though it must be confessed that it seems
more likely to occur on the other side of the iron curtain than in the West.

Jury 1963 REVIEWS 459

However, it is not at all easy to assess the genuineness of the mercy clement
in the release by the Russians of such offenders as Gary Powers: clearly the
political propaganda value of clemency in these cases is high, and Communist
states seem to be much less merciful to their own nationals. On the other
hand, it is unfortunately clear that from Sacco and Vanzetti to the Rosenbergs
and Morton Sobell the record of the U.S. administration has been of the
merciless type which one associates with fear, and a haunting doubt of the
moral validity of one’s case. Homo hominis lupus.
(is

page proof from SOCIAL RISHAROH - vol. 29, no. 1 ~ Spring 1962

BOOK REVIEWS

KIRCHHEIMER, OTTO, Political Justice: The Use of Legal Pro-
cedure for Political Ends. Princeton: Princeton University Press, 1961,
xiv & 452 pp. $8.50.

“The aim of political justice is to enlarge the area of political action
by enlisting the services of courts in behalf of political goals.” Political
recourse to the courts occurs in a variety of circumstances. It involves,
of course, a distortion of the judicial process; at the same time, the
characteristics of that process supply conditions, some advantageous,
some disadvantageous, to the pursuit of the political goal.

It would be hard to conceive a literary project more ambitious—or
more forbidding—than an analytical study of political justice. There
is needed first of all the mastery of a great mass of historical detail, for
the study must rest on empirical data; and these data must’be evaluated.
The author must ‘be familiar with all the legal systems involved in his
data. But these needs are only the beginning. The events must be
oriented in a historical scheme; they must also be made to yield a
categorical analysis which exposes the necessities, the implications, and
the consequences of political justice. Imagination and a high degtee
of creativity are required: All these conditions are met in the book
under review. Some hundreds of cases contribute at one point or
another to the discussion; several receive extended consideration.
They simultaneously underpin and illuminate the historical and
analytical treatments.

For most of human history the legal offense of disrespect for author-
ity—the crimen laesae majestatis—has been punished as a matter of
course. During the nineteenth century, in western Europe and the
United States, where the ideal of constitutionalism had taken root, this
“system of state protection” was “hesitant and conscience-stricken.”
Since the First World War, however, it has been restored to full vigor.
The “crime of social dissolution,” to adopt the expressive Mexican
term, has been introduced almost everywhere. The French, German,
and American codes are very elaborate; only Great Britain and some
of the Commonwealth nations have adhered to the nineteenth century
tradition,

In part social factors account for these changes. The outlook of the
nineteenth century was that of the middle class, The middle class had
made its gains through opposition to government, and still identified
itself with dissent. Moreover, the middle class inherited the optimism,

118 SOCIAL RESEARCH

the rationalism, and the attachment to certainty of the Enlightenment,
For the first time there was a public opinion hostile to political justice,
But today, in mass society, public opinion is uninformed, uncritical,
and irrational; it applauds political prosecutions with enjoyment of
the spectacle heightened by moral indignation at the victim.

Political factors also played a part. The nineteenth century saw the
apogee of the national state. ‘The tendency was toward indulgence of
internal proposals of change; traffic with a foreign enemy was “the
deadliest of all sins,” But international communications have recast
value systems in the twentieth century: economic interest groups,
fascism, and communism have in their various ways deprived the state
of its monopoly of loyalty. These very developments have produced
more violent assertions of state patriotism on the part of the popular
masses. The upshot has been the enactment of penal legislation which
identifies the ideological crime of social discontent with aid to a
foreign enemy. ‘The imprecision of the concept of “subversion” makes
possible the conflation of the two offenses, and {ts vagueness makes the
word more sinister and menacing.

But these f\Juminating historical insights are a side-issue. “The
principal concerns of the book are to establish types of political justice
and to examine the constituent elements of the political trial. The
most obvious case of political justice is the bill of attainder, the out-
lawry of a dissident group. When a ruling minority undertakes td

\ destroy popular organizations, there is usually no ulterior purpose; the

goal is simply repression of opposition, Execution of the political

policy collides at points with the legal order, which the government

is unwilling to scrap altogether; even the opponents of the racial laws
of South Africa have found some shelter behind the structural beams
which are necessary to support any legal system, But most contenipo
rary acts of repression—the American anti-communist legislation, and
the suppression of the Socialist Reich Party and the Communist Party

“in West Germany are considered in some detail—are not intended to

protect the regime from any real threat. The American legislation
resulted from a competition in demagoguery. The Socialist Reich
Party was suppressed for no other reason than its insolent behavior:
‘The suppression of the Communist Party by the German Constitu-
tional Court was principally intended to buttress the foreign policy of
the government. ,

Other forms of political justice do not involve the proscription of
a group by name. Statutes. of a more conventional sort are passed
prohibiting one: or another action, speech, or opinion; or the defend+

Reprinted for private circulation from
THE UNIVERSITY OF CHICAGO LAW REVIEW

Vol. 30, No. 1, Autumn 1962
Copyright 1962 by the University of Chicago
PRINTED IN U.S.A,

Political Justice: The Use of Legal Procedure for Political Ends. By Orto
KircHHEIMER. Princeton: Princeton University Press, 1961. Pp. xiv, 452.
$8.50.

What is Political Justice? In a sense all administration of justice, criminal
and civil, is political, as it serves to maintain and at times to change, the social
and political order of society. Kirchheimer deals with political justice in its
more specific sense—the use of the law and the courts directly to influence the
struggle for political power. Even in this narrower sense the term refers to a
wide variety of phenomena, ranging from the judicial prosecution of the al-
leged revolutionary or traitor to the use of the courts by the political opponent
who forces a member of the governing group into a defamation suit. This
variety of forms in which political justice can appear is vividly illustrated by
the author in the opening chapter of his book, in which he presents a concise
historical survey and a detailed description of some typical political cases of
recent times. The use of an accusation of common crime to discredit or destroy
a political opponent is illustrated by the attempt of the Kentucky Democrats |
in the 1890’s to wrest the governorship from the Republicans by preferring a
specious murder charge against the Republican leaders. The story of this long
forgotten, but by no means atypical, episode of American politics is instruc-
tive as well as thrilling. The equally specious, but successful, attempt of
Clemenceau and Poincaré, through a treason charge to prevent Caillaux from
attaining political power during World War I, and from using it to bring
about a compromise peace, stands for what may be called political justice in its
purest form. How a regime can be undermined by forcing a member of the
governing group to defend himself against libelous charges before a judiciary
sympathetic to the libellant’s cause is demonstrated by the case of Friedrich
Ebert, first President of the German Republic after the collapse of the
monarchy.

While trial can thus serve as a weapon of attack, it is more frequently a
weapon to defend an existing regime or government against its opponents.
Political justice is a typical weapon of what Kirchheimer calls “state protec-

198 THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

tion,” meaning the protection of the regime or government in power. It is not
the only weapon. A government may dispose, and often enough has done so,
of its real, suspected or manufactured enemies without interposition of the
judiciary. Administrative arrest and protective custody in a concentration
camp are but illustrations from our own times. They have been used not only
by fascist, national-socialist or communist regimes, but during World War IL
by Great Britain and the United States,

Observing political justice as a means of state protection leads Kirchheimer
into a discussion of state protection in general, especially the dilemma that
presents itself to the modern liberal-constitutional state where it is, or believes
itself to be, in serious danger from an “opposition of principle,” especially by
opponents of the very bases of democracy, constitutionalism and individual
liberty. Such enemies, in our days fascist and communist, want to make use
of those very liberties of democracy which they are bent to destroy. How far
can a democratic state go in its efforts to protect itself against such enemies
without destroying its own foundations? How can state protection be squared
with freedom of speech? What Kirchheimer has to say on this disturbing
problem stands out among the mass of recent writing. Here, as in all other
parts of his book, Kirchheimer draws on vast material taken from many
parts of the world. The radical measures of the Federal Republic of Germany,
finding itself directly confronted with efforts of communist penetration from
East Germany, are contrasted with the cavalier attitude of Great Britain, be-
lieving itself to be immune. The vacillating, and at times frantic, American
outbursts are shown to be due less:to real danger than to politicians’ attempts
to ride a probably overestimated wave of popular fear and insecurity.
Kirchheimer believes that at least some of the American advocates of radical
measures may have felt that the harshness of their legislative proposals would
be softened, or even declared unconstitutional, by the courts. To some extent
this expectation has indeed been borne out, especially through the attitude
taken by the United States Supreme Court in Yates v. United States.1 That
case has not been the last word in the political struggle about anti-subversive
legislation. In later cases the Supreme Court itself has taken a more rigid
approach, and local courts have frequently tended to lean in that direction,

Reviewing the broad scale of attempted state protection in the past and
present, Kirchheimer reaches the conclusion that most of the measures are un-
necessary where the opponents are insignificant, and that they are, in the
long run, ineffective against an enemy representing the majority of the people
struggling against a governing minority regime or a colonial power. In such
generality this judgment appears too broad. It applies only to liberal constitu-
tional regimes that have opened themselves to democratic ideology and lost
faith in the justifications of their own rule. In our days such softening has
gone so far as to result in the voluntary abdication of colonial rule. But where

1354 U.S, 298 (1957).

1962] BOOK REVIEWS 199

there is a strong will to maintain power, minority regimes have been able to
survive attacks from within as long as they have not been accompanied by
defeat by the external enemy. The Czarist regime of Russia even managed to
survive the defeat by Japan in 1905; it did not fall until the total defeat by
Germany in 1917. Austria-Hungary survived all attacks by Czech, Yugoslav
and Italian nationalists until the defeat in World War II. Tf, along with
Kirchheimer, one regards pre-World War I Germany also as a country where
a majority of the people was lorded over by a minority, it might be added as
another illustration. However, the German example tends to indicate that the
dichotomy, minority-majority, may be too simple. Not even the Social-
Democratic Party which, as a matter of fact, never achieved a majority vote,
constituted in its totality an opposition of principle. A government may well
be drawn from a minority of the people and the majority may be content
with, or at least acquiesce in, that situation. The futility of the half-hearted
German attempt of the 1880’s to suppress the Social-Democratic Party can
indeed be used as a prime example of the problematic relationship between
liberal constitutionalism and efforts at state protection, The German case
does not constitute an example of the futility of vigorously attempted state pro-
tection against a popular majority. Neither was the majority opposed to the
existing system, nor did that system ever undertake a full-fledged effort at de-
termined suppression of even its declared enemies. Such an effort, if it had
ever been undertaken, might well have run into trouble not only because it
would have been contrary to the political climate of liberalism, but also be-
cause it could hardly have expected the full co-operation of the judiciary,
which, as shown by Kirchheimer’s own illustrations, was little inclined to
harshness against such leaders of opposition as Bebel and Liebknecht.

Neither in Germany nor in the United States or other non-totalitarian
countries have the courts corresponded to that communist over-simplifica-
tion in which they appear as mechanical tools of the government—both
government and courts simply constituting weapons of the ruling class in its
struggle to keep down the exploited class. Neither, of course, have the courts
been the never-flagging champions of individual freedom against governmen-
tal suppression, as they have occasionally appeared in Anglo-American: ora-
tory. Reality is more complex. Its sociological analysis by Kirchheimer is pene-
trating. Why do governments resort to courts at all? Why do they run the risk
of being rebuffed by the courts and the danger of the political trial being used
by the accused and his group as a public forum of the potentially highest
efficiency ?

These questions are answered by Kirchheimer in a searching analysis of the
role of courts not only in political trials but in society in general. Obviously
influenced by Max Weber, Kirchheimer finds the key in the deep human need
for justification of the use of power. In order to be accepted, and thus to be
stable, power must be felt to be “legitimate,” e,, to correspond to postulates

200 THE UNIVERSITY OF CHICAGO LAW REVIEW [Vol. 30:191

accepted as self-evident. In our age, in which the exercise of power, in order
to be accepted as legitimate, must be demanded by, or at least correspond to,
reason, the reasonableness of the exercise of governmental power must be
visibly demonstrated. This task of legitimizing in individual cases the exercise
of governmental power, especially when it is directed against an alleged enemy,
falls to the courts; the judges are the legitimizers of the exercise of govern-
mental power. This insight proves itself a veritable key to the clarification of
the problematic role of the judiciary in the political fabric,

Courts cannot serve as legitimizers of governmental power unless they can
follow their own judgment independent of the views of the government. Here
then lies the root of the democratic postulate of an independent judiciary.
But, on the other hand, no state could survive a decided hostility of its
judiciary against its government. A dramatic illustration of such a case is af-
forded by the German Weimar Republic. Hence the problem of finding the
right balance between judicial independence and judicial obedience to the law.
No hard and fast solution can be stated. The answer must depend on varying
circumstances of time and place. How great the variations have been in the
measure of success, and how manifold are the available means of formal and
informal nature, is extensively shown by Kirchheimer. Modes of judicial ap-
pointment, tenure, appeals, administrative controls, personal background,
relations to the public, both in general respect and in special relation to the
political case, all come under scrutiny. The inquiry is extended to the role and
position of the other actors in the judicial drama: the prosecutor, the at-
torney and the accused. For thé accused the political trial can present a much
desired opportunity to publicize, dramatize and propagandize his cause and
thus to defeat the very enemy by whom he is prosecuted, But promotion of the
cause may be fatal to him. Shall he save his own skin by turning informer or
traitor to the cause? The dramatic dilemma is illustrated by numerous con-
temporary cases as well as by the two most momentous political trials of our
history, those of Jesus and Socrates.

What are the peculiar tasks of defense counsel in the various types of po-
litical trial ? Is it his first task to serve his client, or is he to promote the cause?
The two tasks can be incompatible.

What, furthermore, is the role of the prosecution? How is the Pprosecutor’s
position to be organized if it is simultaneously to serve the government and
not to compromise the people’s confidence in the administration of justice?
What are the motivations for the decision of whether or not to Prosecute, and,
in the affirmative situation, of how to “dress up” the case?

All these problems are discussed on the basis of a large amount of ma-
terial taken from constitutional countries such as the United States, Germany,
Switzerland, France, Great Britain and South Africa, But how do the prob-
lems present themselves in a totalitarian country? The German Democratic
Republic (4.e., East Germany) serves as a richly documented illustration of the

1962) BOOK REVIEWS 201

several techniques—formal and informal, crude and subtle—for the achieve-
ment of a situation in which the courts, like all other organs of state and party,
are to function as reliable executive organs of an all-powerful regime bent
upon remolding an entire people in accordance with an ideology regarded as
ultimate truth, This fascinating description is followed by a survey of turns
in Soviet theory on revolutionary legality, which, however, does not extend
to those latest tendencies which may conceivably foreshadow a considerable
intrusion of lay elements into the administration of Soviet justice and, per-
haps, a growth of judicial independence,

A chapter of some fifty pages is devoted to “trial by fiat of the successor
regime,” amply illustrated by cases from widely diverse places and periods.
The trial of representatives of the defeated by the victorious regime appears to
be a common, and probably inevitable, phenomenon. Kirchheimer uses the
case to explain the essential difference between the trial and the action which
for propaganda purposes is called a trial but partakes more of the nature of a
spectacle with prearranged results. But even in such administration of justice,
gradations exist. In the courts-martial of the Vichy militia and the people’s
tribunals of the first liberation days, enemies, whose fate had been settled
in advance, were butchered. The liberation type of cour de justice, with all its
prejudices, allowed for some primitive rights of defense. The elaborate mili-
tary commission set up by the United States for the trial of such Japanese
“war criminals” as General Yamashita is said to constitute a marginal case,
The Nuremberg trial before the International Military Tribunal is regarded
as a true rather than a merely simulated trial. The Nuremberg case is exten-
sively discussed, but, in contrast to the general character of Kirchheimer’s in-
quiry, the refutation of the critics moves more along legalistic than political
lines. Whether Nuremberg has produced, as Kirchheimer hopes, the positive
result of a lasting condemnation of the use of inhuman practice in the political
struggle may well be doubted. As pointed out by the author himself, the
Nuremberg indictment was directed primarily against the National-Socialists’
attempt to subjugate Europe by force of arms, and only incidentally against
the practices used in the pursuit of this aim. Inhuman acts unconnected with.
the war were expressly excluded by the Tribunal from its scope of jurisdiction.
More convincing, on the other hand, are Kirchheimer’s arguments against
the proposals to call in neutral judges in the condemnation of the National-
Socialist rulers of Germany by their Allied successors, or to leave their
condemnation to German courts.

In the chapter following, Kirchheimer investigates the role played in po-
litical justice by the corrective institutions of asylum and mercy. Asylum.
signifies the' limitations imposed on political power by the limits of its terri-
torial spheres, What are the considerations motivating a government to grant
or to refuse asylum? What were the policies of the several nations in the nine-
teenth century, when the asylum seeker was typically an individual? What are

202, THE UNIVERSITY OF CHICAGO LAW REVIEW  [Vol. 30:191

they today when the search for asylum has come to be the concern of vast
groups of persons persecuted not only on grounds of political creed or activity
but on grounds of nationality, race or social origin?

What, finally, are the complex and widely varying motives for granting or
denying mercy to individual victims of political justice, or amnesty to entire
groups? The comparison of Lincoln’s practices with those of contemporary
American administrations is as fascinating as the analysis of attitudes of
Shakespearian characters, of Tudor and Bourbon kings, or of successive
French and German regimes.

In summing up Kirchheimer returns to the comparison of political
justice in constitutional and totalitarian regimes. In the former the existence of
a “judicial space” is essential if the “detour” of the resort to trial is to fulfill its
function of legitimating the governmental prosecution of the political foe.
Only if the courts are left a space of freedom to exercise their own, though per-
haps narrowly defined, judgment can political justice be expected to achieve
its assigned end, There must be some risk of divergency between government
and court, and thus some risk of the trial being used by the accused as a forum
for effective advocacy of his cause. Where no such judicial space is left, the po-
litical trial can serve only the different functions of a potentially highly effective
means of a totalitarian government to educate the populace along the ways de-
sired. Whatever the regime, political justice “is bound to remain an eternal
detour, necessary and grotesque, beneficial and monstrous.”2

This final judgment expresses the well-balanced nature of Kirchheimer’s
investigation of a topic that easily provokes partisan approach. Kirchheimer
leaves no doubt about his own convictions as those of a democratic, liberal
constitutionalist. But through his comprehensive knowledge of history he is
familiar with the complexity and inevitability of the problem. He pursues it
not as the pleader of a cause but as a scholar in search of knowledge and
understanding,

Kirchheimer is a political scientist and a sociologist. He looks at the phe-
nomenon of political justice from this outside point of view rather than from
the inside position of the lawyer.3 It is exactly this approach that makes his
work fascinating and important for the lawyer. The impact of the inquiry is due
not the least to the comprehensive scope of the author’s material. Political
justice has been treated in a flood of writing, especially in recent years when
it has become such a widespread and disquieting phenomenon. The number
of American discussions of American cases, practices and problems has been
legion. Nowhere else can the reader find such a wealth of material as in
Kirchheimer’s book. Consequently, the approach is from a higher level; phe-
nomena and problems of one country are reflected in those of another. Thus
new light is thrown upon the familiar phenomenon. The inquiry cuts down

2P, 430,

3 The fact that the author is not a lawyer has found expression in his unorthodox and at
times annoying mode of citing cases, American and foreign.

1962] BOOK REVIEWS 203

to fundamentals. The book constitutes a high achievement of comparative
law as well as of jurisprudence. Law teachers might well consider its use as a
base for discussion in seminars or courses on jurisprudence. For one striving
at clarifying his thoughts about the problem of how to defend our social and
political system against its enemies, without in the effort undermining its very
foundations, Kirchheimer’s book is, I dare say, indispensable. To the judge,
attorney, or prosecutor involved in a political case, it will serve as a useful

practical guide.
Max RuBINSTEIN*

* Max Pam Professor of Comparative Law, University of Chicago.

KIRCHHEIMER’S POLITICAL JUSTICE

Reviewed by Norman Dorsen

REPRINTED FROM

NATURAL LAW FORUM Vol. 8 (1963)

NOTRE DAME LAW SCHOOL
NOTRE DAME, INDIANA

PourricaL Justice: Tur Use or Lecat Procepures ror Poxirican Enns. By.
Otto Kirchheimer, Princeton, N.J.: Princeton University Press, 1961.
Pp. xiv, 452. $8.50.

The idea of a book on political justice excites the mind to questions and
perplexities. Perhaps chief among them is whether the discipline of law can
tame the unruliness.and opportunism of the political game. Or must politics
inevitably gain the upper hand and subject the law to unseemly indignities by
impressing age-old doctrines and procedures into new and unfamiliar service?

“Political justice” is not used in this book in the sense of an ideal order of
government in which all citizens communicate with the body politic to assure
its highest perfection. Rather it is used to define that segment of law in which
the devices of justice are used to bolster or create new power positions against
real or imagined enemies of the state. The author explains that the book is
neither a history of political justice nor a collection of its most noteworthy cases,
thus explaining the absence from its pages of such a cause célébre as the Dreyfus
case. The book is designed to expose the underlying mechanisms of political
trials by relating their political content to the juridical form in which cases
take place.

Professor Kirchheimer, a native of Germany and now a professor of govern-
ment at Columbia University, has lavished comprehensive and painstaking re-
search on his subject in the tradition of good European scholarship. He has
capitalized on most of the opportunities presented by the vast field he surveys.
Although the book is flawed by meandering and by a heaviness of language, it
strikes this reviewer as a highly valuable contribution.

The ambitiousness of the project is easily appreciated by its range of problems:
When will a regime find it necessary, possible, or convenient to resort to the
judicial process for political ends? How do the actors in political trials —
judge, jury, prosecution and defense counsel—-respond to their new roles as
they are willy-nilly. thrust in the spotlight of conflict for political advantage and
power? What part is played by the supporting cast of informers, collaborators,

NORMAN DORSEN 167

defectors, and security police? To what degree can political justice enable a
regime to “legitimize” its status, marshal public opinion to its ideology and
objectives, and dispose of its enemies? How do clemency and asylum mitigate
the consequences of political justice? Finally, in what circumstances, if any,
can resort to the courts to validate political goals be justified in normative terms?
A basic question is whether political trials can be distinguished from the
usual run of judicial business. Do not all questions of tort and contract, not to
mention constitutional law and labor law, ultimately involve adjustments between
competing social and economic forces, and are not such adjustments what
politics is all about? Kirchheimer handles this question skillfully. Recognizing
that most trials may harbor long-range socioeconomic effects, he nevertheless
argues persuasively that there is a critical difference between the usual courtroom
conflict and those cases in which the judiciary is called upon to exert immediate
influence on the distribution of political power. In such cases, the trial serves
to advance or harm the interests of a definable political group. To elucidate
the distinction, he points to the differences between a. perjury trial growing
out of alimony proceedings and one turning on statements made before the
House Committee on Un-American Activities; between a homicide trial of a
doctor’s wife in Cleveland and a trial for the murder, after a hotly contested
campaign, of a candidate for Governor of Kentucky; and between a trial. for
conspiracy to rob a bank and a trial for conspiracy to advocate the overthrow:;
of government by force and violence. % q
The most solemn and far-reaching political cases — indeed, cases: which
throughout history have tested and tormented established governments — arise
when a regime turns to the courts for assistance in repressing hostile political
organizations. The author introduces this theme by lengthy comparative treat-
ment of the varying conclusions reached by the Western countries as how best
to proceed against domestic Communist movements after World War II. “While
Germany and the United States in different ways employed the courts to combat
the Communist Party, France and Italy resisted this temptation but discriminated
against the Party in the administration of election laws and within the
parliamentary system. Great Britain and the Scandinavian countries resorted
to neither of these forms of repression, but consistently adhered to a “policy of
equal treatment” for all political groups. :

Kirchheimer valiantly attempts to derive the causes for these disparities of
policy. As one might expect, they are complex. A nation’s cultural traditions
and transitory leadership both play a part. But hard political facts more often
lie at the root, including the strength of the Party within each Western country
and the likely reaction of the mass of people to different policies. Open repres-
sion must risk, apart from the uncertainties of trial, the revulsion of former
friends from a pattern of persecution, the martyrdom of victims, and the con- |
sequences of driving opposition underground. Displaying erudition “and a’
shrewd political sense, Kirchheimer provides telling insights into the manipula-
tion of means to cope with domestic movements believed a threat to stability.
It is not’ to ‘detract from these insights that this reviewer suggests that neither
history ‘nor what we have been able to learn of the riature of man ‘supports

168 NATURAL LAW FORUM

the author’s conclusion that “legal repression of democratic mass movements is
bound to be futile in the long run.” (p. 171) Throughout recorded history,
exactly such repression has taken place, and the hegemony of “democratic mass
movements” still remains mostly a dream. In addition, it must be said that
not everyone is interested in the long run, and this perhaps explains the un-

diminished ardor with which such repression is widely attempted.

Since finally the trial’s the thing, it is to it that we turn with special interest.
In such high drama no. participant is immune from the severe psychological
strain of resolving the inconsistent pulls of duty, fairness, and_ self-interest.
Whether the trial is in France, Germany, the United States, or elsewhere, there
is a judge torn between the duty of impartiality and the pressures to vindicate
fundamental political goals of a regime from whose ‘establishment he is
recruited; a prosecutor weighing political as well as legal risks every step of the
way, from the initial, tough decision whether to prosecute at all ‘to the recom
mendation of appropriate punishment after conviction; and a jury, historically a
buffer between the state and the accused, but here acting under manifold com-
pulsions to sustain the state. The agents of the state are not alone in finding
themselves in awkward roles, At every turn the defendant will ponder his
legal and political objectives; that they are often in reciprocal relation will
mean that one or the other must be. sacrificed, Defense counsel, too, must face
some hard facts, If he is part of the apparatus of the prosecuted political
party, the political goal -of preserving the public image of his cause may create
legal risks to both client and lawyer; on the other hand, if he does not share
the politics of his client, he frequently will endure the irony of public obloquy
for services rendered to a national enemy, while in fact he may be responding
to subterranean needs to vindicate the regime.

After all concemed play out their roles, it is the judiciary who must make
an ultimate determination concerning the legality of a political group or of
governmental action designed to curb it and its membership. This decision
ordinarily involves an estimate of the purposes and strength of the group matched
against the power and determination of the existing government. ‘The decision
thus becomes, in the words of the late Justice Jackson; “a prophecy . . . in
the guise of a legal decision.”? ; .

The degree to which the judge has authentic intellectual independence in
reaching a decision will vary, of course, with political conditions. All executives
move to destroy what Kirchheimer calls “judicial space” — the uncertainty of
result in political trials. Such uncertainty was completely wiped out in the
show-trials: of Hitler’s Germany and Stalin’s Soviet Union, where the judge
acted purely as the political agent of the regime. But even in democratic coun-

% legal risks to the client are well known. But the lawyer's troubles after trial may
be virealle as painful. See Sacher v. United States, 343 U.S. 1 (1952) (criminal con-
tempt conviction of counsel for Smith Act defendants upheld), Sacher v. Association of
the Bar, 347 U.S. 388 (1954) (permanent disbarment sot aside as too severe); In re
Isserman, 9 N.J. 269, 87 A.2d 903 (1952) (another counsel for Smith Act defendants
disbarred in New Jersey), In re Isserman, 345 US. 286 (1953) (disbarment sustained
by Supreme Court by evenly divided Court), sct aside on rehearing, 348 U.S. 1 (1954).
Sce also In re Sawyer, 360 U.S, 622 (1959).

2. Dennis v. United States, 341 U.S. 494, 570 (1951).

NORMAN DORSEN 169

tries the judge acts within a narrow compass when the enemy of the state sits
in the dock and the engines producing national conformity are open full
throttle.

That “judicial space” is compressed in the United States will be apparent
to anyone who inspects the opinions of the Supreme Court sustaining, for ex-
ample, the convictions of Eugene Debs and Benjamin Gitlow after World War
I8 and of Eugene Dennis and Junius Scales a generation’ later.4 That some
“judicial space” remains, however, perhaps more than commonly’ recognized,
is apparent from decisions limiting the inquisitorial license of legislative com-
mittees5 and other decisions cutting back the executive’s power to utilize political
grounds to deport aliens,® restrict travel,? and strip individuals of citizenship.®

Ward politicians and political science purists alike may balk at the concept of
“judicial space.” Politicians because they know that everyone must “go along,”
even if he is a judge (“How else did he get the job?”). Purists because they
may regard a catchy tag line for a familiar theory of the’ nature of freedom
superfluous and confusing, Vincent Starzinger suggests this point in an excellent
analysis of the book under review: a fF

. .. American society does’ trust its judiciary with the adjutication of high
policy issues precisely because we are assured from the start that courts will
confine their speculation to a relatively narrow range of value alternatives. As
with the secure totalitarian regime which can begin to tolerate a neutral
referee, we permit judicial space because we know. fairly well in advance
what courts are likely to do within that space. This of course suggests an
eternal paradox of freedom in general: societies and regimes usually grant
freedom when they are reasonably confident that individuals will exercise
it in conformity with certain: basic norms — in other words, when those
receiving freedom are already: unfree in the sense of having been conditioned
by common habit, custom, and ideology.?

Is political justice ever acceptable? Kirchheimer adduces two possible justi-
fications: (1) political justice may be harmless, as when the purpose is to
bolster the public image of a regime or to put an official stamp on the already
achieved defeat of a political opposition, or (2) the alternative to political justice
may be worse, as when a regime would act more arbitrarily and perhaps
violently if it-had no recourse to the courts,

But these justifications will not wash. For political justice can never ‘be
harmless when the result is to send a man to jail or when the merits of

3, Debs v. United States, 249 U.S. 211 (1919), Gitlow v, New York, 268 U.S. 652
1925).

Le Dennis v. United States, 341 U.S. 494 (1951), Scales v. United States, 967 U.S.
203 (1961).

5. Watkins v. United States, 354 U.S. 178 (1957), Sweezy v. New Hampshire, 354
U.S. 234 (1957).

6. Rowoldt v, Perfetto, 355 U.S. 115 (1957), But see Harisiades v, Shaughnessy, 342
U.S. 580 (1952), Galvan v. Press, 347 U.S. 522 (1954), and, Niukkanen v. McAlexander,
362 U.S. 390 (1960).

7. Kent v. Dulles, 357 U.S. 116 (1958), Dayton v. Dulles, 357 U.S. 144 (1958).

8. Nowak v. United States, 356 U.S, 660 (1958), Maisenberg v. United States, 356
US. 670 (1958). :

9." Starzinger [Book Review], 71 Yarn Law Journat 1364, 1368 (1962).

170 NATURAL LAW FORUM

a particular government are sold to the citizenry like a cake of soap or a compact
car. The second justification is not capable of proof because there is no valid.
way of estimating a regime’s response to political opposition if it lacked the
opportunity to implicate the judiciary. Indeed, the trappings of legality may
facilitate repression by enabling more people to overcome scruples.

It may be objected that to dispose of these two lines of argument does not
dispose of the problem, Need a regime sit idly if it is sincerely convinced that
a political conspiracy will use force to destroy it, and are not the courts the
most available and decent forum for state defensive action? This has been
proposed as the testing case for those who deplore the use of the judiciary for
political ends.

A response must initially draw the line between political conspiracies that
have resorted to violence and those. that are yet inchoate. As to the former,
there would seem an inherent right of self-defense, as well as the right to judicial
enforcement of laws designed to punish acts of insurrection. The real question
is how to handle conspiracies that are in the talking stage. As to these, one
must for himself accept or reject Kirchheimer’s conclusion that political justice
is fundamentally inconsistent with “the essence of the . . . democratic political
system, [that is] majority rule with unconditional protection of minorities, in-
cluding the right to turn into a majority.” (p. 169) Kirchheimer’s premise, of
course, is that if a minority is disposed to act through force rather than ballots
it will be time enough to thwart such action when it occurs; in the meantime,
the political process should be open to all points of view, and let the chips fall
where they may. The alternative course of proceeding against a conspiracy
before it acts violently not only imposes intolerable burdens on the judicial
system, but also opens the door to elimination of political enemies through the
convenient self-delusion that force is inevitable and imminent.

But will there be time for successful defense when the enemy finally strikes?
The answer to this highly practical question may not be the same for all govern-
ments and for all times. The period since World War II provides material for
arguments on both ‘sides. The coup d’etat in, Czechoslovakia may be thought
to illustrate the perils of leaving jail cells empty for too long. On the other hand,
an observer of the American scene can conclude that there has been insufficient
risk of violent overthrow of government to justify the political trials under the
Smith Act and the McCarran Act.

Kirchheimer believes that when a regime resorts to the courts for political
ends it is responding to the twin spurs of fear and self-doubt. The dedication
of the present volume to “the past, present and future victims of political justice”
suggests the author’s conviction that these motivations will continue to induce
governments to contain domestic enemies with the aid of the courts, Those
devoted to freedom will join Kirchheimer in regretting this, while recognizing
at the same time that the problem is many-sided and subtle, and that the
absolute undesirability of invoking political justice has not yet been justified
logically or historically, and perhaps cannot be.

Norman Dorsen

556 COLUMBIA LAW REVIEW [Vol 62

POLITICAL JUSTICE: THE USE OF LEGAL PROCEDURE FOR POLITI-
CAL ENDS. By Otto Kirchheimer, Princeton: Princeton University Press,
1961. Pp. xiv, 452, $8.50,

This. book is not, as its author makes clear primarily for the benifit of
his audience in this country (where the term “political justice” is not in
common use), a search for “an ideal order in which all members will com-
municate and interact with the body politic to assure its highest perfection,”!
It is instead a thorough, indeed, exhaustive analysis of almost every aspect
of what is popularly known as the political trial, that political phenomenon
characterized by the “power holders’ use of the “devices of justice to
bolster or create new power positions,” or to persecute or silence their
enemies,

Every regime (the author uses the term in a sense very close to the
meaning of its original Greek equivalent) has its domestic enemies and, there-
fore, faces the probletn of dealing with them; and one way of dealing with
them, which is the concern’ of this book, is to proceed against them in the
courts. Legal proceedings may take the formi of a libel action, a prosecution
under a sedition act or under a “nonpolitical” criminal statute (such as the
Reichstag fire trial), a contempt citation, or even a refusal by a committee on
character and fitness to grant admission to the bar, They may involve one
person only (Socrates or Jesus), a political party in its entirety, or, as in the
case of the Moscow purges of 1938, an allegedly anti-party group; they may

against Caillaux), a minority’s attempt to deny power to a rising majority;
an attempt by the victors in war to punish the vanquished instigators of that
war, as in the case of the Nuremberg trials, ot a political trial in the era of
mass communication, the purpose of which is to bolster domestic morale, as
in Ben Gurion’s desire to use the Eichmann trial “as the focal point for
Israel’s self-assertion before continuing threats to its existence... .”2 In the
most interesting, or at least most troublesome, case, a majority may resort to
political justice to repress the opinion held by a “deviant” minority. It is the
variety of these conditions—of motives, participants, and settings—that
furnishes Professor Kirchheimer with the materials for his analysis. The
result is truly impressive scholarship and a major contribution to our
knowledge of almost every conceivable aspect of the phenomenon,

But an analysis of “political justice” must take Place, inevitably one
would think, in the setting of a larger question: how to bring about and
maintain those conditions that facilitate the achievement of at least an ap-
proximation of political justice understood precisely as an “ideal order in

1. P. vii,
2, P. 18,

1962] BOOKS 557

which all members will communicate and interact with the body politic to
assure its highest perfection.”* The vast number of such trials, extending in
time from Socrates to Eichmann (who had not yet been sentenced when this
book was published), and occurring in countries marked by tolerably decent
regimes as well as those ruled by the cruelest of tyrants, suggests that
political: justice is one aspect of a problem that is coexistent with political
life. .Is there no place in the pursuit of a just society for the political trial
that Jeads to banishment, denial of asylum, deprivation of privileges, oreven
a prison sentence? Is the character of the regime in the name of which the
trial is held and of the opinion that is repressed of no relevance to an analysis
of the phenomenon? Or is repression in every case not “a matter of rational
choice,” but an “elaborately rationalized expression of a deep-seated: human.
need for aggression, violence, exercise of power, and aggressive domination ?”*
Professor Kirchheimer seems to answer these questions by his dedication of
the book “to the past, present, and future victims of political justice.”

But these victims include Eichmann and Goering, Hess and the others
at Nuremberg, as well as Socrates and Jesus. Does the author intend to
include them all in his dedication? Probably not, as he concludes his discus-
sion of the Nuremberg trials by saying: “But while it retained many overtones
of the convenience type of trial, did the Nuremberg trial, with all the hypoc-
risy and grotesqueness deriving from its very subject, not belong very pro-
foundly in the category of a morally and historically necessary operation ?”5
Some political trials prove to be justified, despite their dubious legality.
Would. this be true ofa trial of such men before they seize power, a trial
based on a duly promulgated law before a tribunal-whose jurisdiction is un-
questioned? Could it not be said that the American Smith Act prosecutions
atid the German Federal Republic’s repression of its Communist and Socialist
Reich parties were also morally and historically necessary? Surely not, if,
as Professor Kirchheimer suggests, when it is “foreseeably effective, repres-
sion seems unnecessary [and] when advisable in the face of a serious threat
to democratic institutions, it tends to be of only limited usefulness, and it
carries the germs of new, perhaps even more menacing dangers to de-
mocracy.”® But his judgment seems to rest less on repression’s questionable
effectiveness (on this point the Federal Republic appears to be guided by
the failure of the Weimar Republic to act against its enemies) than on his
view of constitutional democracy, the essence of which is expressed in the
principle of “equal rights for every man,” and of the democratic . political
system with “majority rule with unconditional protection of minority rights,
including the right to turn into a majority,”". If this is constitutional de-

4, BL 172, :
5.

558 COLUMBIA LAW REVIEW [Vol. 62

mocracy, then a policy of repression of any political opinion, however in-
effective as a policy and however moderately pursued when compared with
the political trials conducted by the Nazis and Communists, is necessarily
undemocratic, Indeed, it is difficult to understand how any political opinion
could be undemocratic, Yet Lincoln regarded the opinion that slavery was
neither right nor wrong as contrary to the principles of the American
democracy; and Jefferson campaigned for the presidency in 1800 on the
platform that Federalism was subversive of the Republic, and in his Notes
on Virginia advocated the exclusion of monarchists, who were not able to
offer the kind of consent that would qualify them to participate in free govern-
ment, and even some of the refugees from monarchies who, he thought,
would have anarchistic sentiments, In fact, American democracy as under-
stood by Jefferson and Lincoln would rightly regard some opinions as
antagonistic to the principle of that democracy; whether it would attempt to
outlaw them is a separate question, Certainly, especially after Professor
Kirchheimer’s analysis, no friend of democracy can be excused for adyo-
cating repression for “light and transient causes” ; but he would nevertheless,
and despite Professor Kirchheimer, regard it as “a matter [subject to] ra-
tional choice.”® The problem of achieving and maintaining a just regime is
more complex than occasionally appears in this book, As Lincoln said at
Ottawa : “In this and like communities, public sentiment is everything, With
public sentiment, nothing can fail; without it nothing can succeed. Conse-
quently he who moulds public sentiment, goes deeper than he who enacts
statutes or pronounces decisions. He makes statutes and decisions possible or
impossible to be executed.”® A consideration of Lincoln’s understanding of
the problem posed by the public sentiment that Stephen A. Douglas at-
tempted to mould would, however, lead us beyond a consideration of the
analysis contained in this book to a consideration of the larger question
mentioned above,

Whether “political justice” will pass into desuetude if national states
are replaced by a world government? or by a system of “transnational control
of the crimes against the human condition,”!* seems doubtful at best, since
there is no reason to believe that a world regime will not, like all its predeces-
sors, have its “foes” too—especially when, as this reviewer has argued,!2 a
world government will almost certainly be a world-wide tyranny,

Associate Professor of Government, Warrer Berns
Cornell University

& P. 172,
2. Speech at Ottawa, TIL, Aug. 21, 1858, in ANout, Ceearen Equan: Tax, Comprere,
Lincoun-Dousias Dusamns oF 1858, at 128 (1958).
10. Pp. viii-ix nt,
LU. P. 341,
12 Berns, The Case Against World Government, in Reavnas in Wontp Porrrics

(1959)

SLAVIC REVIEW

AMERICAN QUARTERLY OF SOVIET AND EAST EUROPEAN STUDIES

MAR 1963

156 Slavic Review

is is a special issue, touched upon only in a peripheral way in this careful
and valuable study.

sity of Alberta, Calgary Freperick G, HEYMANN

Rura, Reinterpretation of History as a Method of Further-
unism in Rumania: A Study in Comparative Historiog-
shington, D.C.: Georgetown University Press, 1961. xi

Mr. Rura’s study\js a timely presentation of a theme which could more
fittingly be ened "The falsification of history as a method of Communist
indoctrination.” Th author tackles the subject in an academic way by com-
paring Rumania’s pre'Gommunist historical tradition with that manufac-
tured by the Communist\pistorians. Implying that the old school laid itself
open to attack by undersc Bin national themes and minimizing revolution-
ary currents, the author rec gnizes neyertheless that the basic preoccupation
was the search for truth, THe description of the methods used by current
historians to destroy the tradittgnal interpretation and substitute their own.
version makes it obvious that the‘term “reinterpretation” should properly be
discarded. ‘

Rejecting virtually all the traditignal tenets as unscientific, current his-
torians have changed the periodizatidy to conform to the Marxist pattern,
substituted Slavic for Roman origins, eyaded religious and national prob-
lems by considering only social and economic ones, replaced exploits of
princes with themes of social unrest, stressed the liberating role of Russia in
contrast to the exploitation of the Western pdwers, censored all embarrassing
problems, particularly in contemporary political history up to 1944, and
filled the vacuum with a mythical Russo-Runignian revolutionary theme.
Mr. Rura stresses the methods by which all this was achieved by heading his
chapters: Reinterpretation by omission, substitutiog, emphasis and corrup-
tion—a division which entails a certain amount of tepetition. The author
certainly deserves to be commended for his painstaking’ No of Com-

munist documentation—materials which are not always €asy to obtain.

The weakest side of Mr. Rura’s analysis is that dealin; , with Rumania’s
prewar historiography, which, assuming that there is a bast for comparison
with that of the postwar period, is presented in an oversimplified way. ‘The
choice of authors cited is not sufficiently discriminating, and Mr. Rura too
often bases his opinions on foreign writers who cannot be ranked as pre-
Communist Rumania’s foremost historians. Some of these lacunae fem from.
the unavailability of many traditional works in the West, which ‘in itself
provides eloquent testimony to the effectiveness of Communist suppresion

Oxford University Rapu R. Frornsdy

Orro Kircunemer, Political Justice: The Use of Legal Procedure for
Political Ends. Princeton, N.J.: Princeton University Press, 1961.
xiv + 452 pp. $8.50.

Reviews 157

The Introduction to Professor Otto Kirchheimer’s volume seems to commit
the author to a comprehensive analysis of a highly significant but extremely
elusive phenomenon. But the actual structure of the book follows a con-
siderably more eclectic design. As the table of contents indicates, the
emphasis is upon certain selected phases or aspects of political justice, and
its contribution lies in an exceedingly informative survey of examples of
the thing being defined rather than a systematic exposition or inventory of
its essential attributes. Part I is devoted to a review of the cases and methods
illustrative of political justice; Part II to the complexion of the components
of the trial situation in a political case, that is, the roles of judge and de-
fendant vis-a-vis the state; and Part III to certain means by which political
justice is modified, that is, asylum and clemency.

From an institutional point of view the chief merit of the book for Anglo-
American readers lies in the author's survey of the work of the continental
“constitutional courts” in relation to political controversies, His command
of these sources is—at least to the best of this reviewer's knowledge—
admirably complete, and it would be highly desirable if students of domestic
public law would take more careful note of such comparative data.

From a more topical point of view, the author's principal contribution
lies in his treatment of the predicament of democratic constitutional regimes
(the so-called open societies) when confronted by claims to the exercise of
freedom of speech, press, and assembly by organizations dedicated to the
ultimate overthrow of governments which cherish such freedoms. Professor
Kirchheimer's recurrent references to this problem—combining, as they do,
a familiarity with both Anglo-American and continental precedents—are
extremely valuable. This perspective, for example, enables him to discuss
the clear and present danger test (which our own publicists have a tendency
to praise or damn rather uncritically) with sober appreciation of both its
merits and limitations.

The foregoing tributes must be offset by certain reservations. As already
suggested, the promise of the book on the theoretical plane is hardly ful-
filled. ‘Political Justice” cannot be adequately defined without putting
down a firm jurisprudential foundation, and this Professor Kirchheimer
does not do. His view of the relationship between law and the state, for
instance, is only tangentially reflected in his discussion of other subjects.
Consequently, the reader is deprived of a frame of reference for the concept
of “legality” which is constantly and necessarily so employed in contra-
distinction to “that which is merely ordained by the Powers that Be.”

This means that the book presents facets of his professed subject rather
than the definitive categories the reader may have been led to expect. It
also frequently means that the categories he does use are inadequately
explained. In Chapter 4, for example, a minority regime’s admittedly
constitutional repression of democratic movements is treated as no less
exemplary of illegality than a majority regime’s unconstitutional repression
of minorities. The inference here is either that the preconceptions of
political democracy (the universal franchise, etc.) are directly incorporated
in the rule of law, or that equality, in the sense required for full political
democracy, is part of a natural law order which in turn furnishes the test
of legality. Yet the reader cannot be sure that such an inference is intended

158 Slavic Review

because a philosophical position sustaining them is nowhere formulated.

Finally, the author's style is not conducive to easy reading and it is some-
times ponderously verbose without the excuse of profound content. On page
6 of the introduction, for instance, the author demonstrates an uncanny
ability to fatigue the reader in the course of a relatively short sentence. I
quote: “The more elaborate the paraphernalia of authentication the greater
the chance of vicarious popular participation in its conundrums.”

It would be unfair to suggest that all his conclusions are similarly encum-
bered. Some of them are succinctly put and convey useful insights. I shall
therefore conclude this brief review with another quotation, from the final
paragraph of Chapter $: “Thus the lasting results of the propaganda trial
are likely to be paradoxical. The morality play, after serving the political
needs of the day, will survive mainly as a testimony to its initiators’ own
frame of mind, which may well prove more distorted than that of their
victim.”

University of Washington Kennet GC. Coie

Kyaus Mrunert, Soviet Man and His World. Translated by Maurice
senbaum. New York: Frederick A. Praeger, 1962. 310 pp. $5.95.

Soviet than in Klaus Mehnert’s view is significantly different from his Russian
grandfathtx, but not entirely a “new Soviet man.” A German by birth, Mr.
Mehnert watzeared in tsarist Russia, educated in Germany and America,
and has subsequgntly specialized in Soviet affairs. He resided and traveled in
Russia on thirteeh separate occasions, together totaling six years. Thus, he is
uniquely qualified for his task.

In Soviet Man and Nis World Mr. Mehnert has analyzed the impact upon
the present-day Russian‘ef three primary influences: ‘his heritage of tradi-
tional Russian characteristics, the forces of industrialization, and the pres-
sures of Communist social iuiicering. His conclusions are perceptive and
should be of interest and value. to the specialist and layman alike. “The
Russian of today,” he stresses, “is more moderate, more disciplined, than his
forebears; his boundless energy is absorbed by exacting labor and checked by
strict laws” (p, $2). On the one hand, Soviet man respects (even though he
somewhat resents) the privileged scientist and Communist functionary in
much the same manner that his grandfather tended servilely to admire the
elite in tsarist Russia. His fear of being spied upon and his distrust of all
about him during the worst Stalin years have, significantly, failed to snuff out
his inherited human warmth, boisterousness, and: overt sympathy for his
fellow beings and his gregariousness, Like his predecessor, he is reluctant to
accept personal responsibility.

On the other hand, Soviet man’s inherited capacity to endure hardship and
bow to the inevitable has abetted Communist dictatorial rule. Despite the
latter, however, the author believes that Soviet man has becorhe more ego-
tistical and not more collectivist minded. Indeed, after comparing. Russians
with Americans, the author concludes that Soviet man is more man‘than he
is Soviet: he is, and likely will remain, more concerned with assuriig his
personal security, maximizing his privacy, and extending intellectual f

La

598 Tur Journat or Porrrics [Vou. 24

Personal or political freedom: not personal, since man has freedom
only as a relation to other men; not political, since the political
relation is just another social relation, Freedom is not the contrary
of unfreedom, as a man is not unfree when he is forced to do
something, yet not free in the doing of it, to refrain from doing
it, Power and freedom can combine so that a man of inferior power
is free on sufferance, though not free of sufferance, whereas his
superior is free to dominate him,

Mr. Oppenheim discusses other meanings of freedom, descriptive
and valuational; of the former, he repels the opinion that freedom
is freedom of choice, because we are always free to do or to try
the impossible. Freedom has a character so irremediably specific
that we can in general speak only of a single relation of freedom,
never of a free society made of such relations; freedom has dimen-
sions but is not a whole. In his last chapter, Mr. Oppenheim explains
the value of the scientific conception of freedom for the normative
problems of freedom, which is nothing less than to make intelligent
discussion of them possible for the first time.

Mr. Oppenheim values fruitful over colorful language; he has
Produced clear language. His book contdins some alphabetical ab-
breviations, and a few neologisms (“counterintuitive” is a happy
conceit), but it is free of Jargon, and abounds in examples, In this
effect, it is a contribution not only to behaviorism but to the con-
troversy about behaviorism.

Harvey C. Mansriexp, Jr,

University of California, Berkeley,

Political Justice. By Orto KircHuermer, (Princeton, New Jer-
sery: Princeton University Press, 1961. Pp. vii, 452. $8.50)

The use of legal procedure for political ends is most frequently
associated with strongly authoritarian ot totalitarian systems of
government. This book is an important contribution to the study of
courts in the political Process, because it examines the role of the
Judiciary to gain certain political ends under constitutional systems,
Professor Kirchheimer’s systematic analysis of trials for various
political purposes under constitutional and totalitarian systems
stresses the problems which each system encounters in achieving
the aims of the trial, the various forms of trials, the “dramatis

1962] Boox Reviews 599

personae” participating in the political play brought into the court-
room, and pursues also the nature of clemency and asylum.

Assuming that “every political regime has its foes or in due
time creates them,” the author points out that the ensuing power
struggles between the regime and its foes and among competitors
for political power will take a variety of forms, The courts, which
through show trials, legalization of purges and staged public
confessions of political opponents of a system, have served as terror
and propaganda instruments of totalitarian systems, do have an im-
portant, albeit somewhat different, extra-legal function also in con-
stitutional systems,

As constitutional governments in modern times grew in scope
and their political power came to rest on the broader bases of un-
limited suffrage and extensive public opinion, conflicts arose within
democracies which engulfed the judiciary along with the traditionally
“political” parts of government. The author summarizes the most
urgent occasions for court action in connection with nepressive pro-
grams in contemporary non-totalitarian society in four categories:
(a) formal restriction of freedom which becomes necessary for
successful police and security operations; (b) control measures which
have passed the dividing line between informal restraints and actual
coercion and result in the victim’s demand for formal adjudication;
(c) the government in question has decided on either total repression
of its foes or on wearing them down by continuous judicial pro-
ceedings against them which limit their political availability; (d)
carefully chosen segments of deviant political activity are submitted
to court scrutiny, not so much for repressive effects as for dramatiz-
ing the struggle with the enemy and gaining public support.

The problems which beset a constitutional system if it wants to
take either one or all of the above steps involving the judiciary are
complex, and Professor Kirchheimer points up these complexities by
a thorough analysis of the Smith Act trials in the United States
and the procedures involved in outlawing the Communist Party
in the Federal Republic of Germany. He shows the greater dilemma
confronting the United States judiciary, because constitutions of
the “older liberal type” make the substantive determination of the
sphere of permissible revolutionary action and propaganda quite
problematic. Under the American Constitution the Supreme Court
was forced to make specific acts on the part of the accused the
basis of judgment. According to the rule of law it is not enough

600 Tue JournaL or Porrtics [Vou 24

to know that the group in question prepares a state of psychological
readiness for future political action, and demand total repression,
The position, however, calls for a constant alertness, frequent shift-
ing of positions and relocation of battle lines between the govern-
mental organization (and its instrument—the judiciary) and the
hostile group,

The Bonn Basic Law, on the other hand, an example of a more
recent constitution, drawn up as reaction against totalitarianism,
clearly makes repression of antidemocratic political movements part
of the rule of law. This enables the judiciary to consider a suspected
group’s perennial readiness to take action which will ultimately
result in the destruction of the constitutional system as a sound
basis for legal and complete repression,

It is this conflict between legal repression of political organi-
zation and constitutional systems based upon competing political
parties and the writer’s penetrating analysis of a troubling subject
matter which make the book an important source for any scholar
interested in political justice. The section on political trials under
totalitarian systems pointing out difficulties even for those regimes
to explain judicial involvement in political matters, and the mas-
sive documentation with sources usually not gathered within one
volume, add to the significance of this book. The only question of
“political justice” which to this reviewer could have been pursued
in greater detail is that of impeachment. However, the scope of the
book is so broad that not all aspects should possibly be treated
in equal depth.

Exe FRANK
Florida State University

The Moulding of Communists (The Training of the Communist
Cadre), By Frank S, Mrver. (New York: Harcourt, Brace
and Company, 1961. Pp, 214. incl. index. $5.00.)

This is one of a series of studies of Communist influence in
American life, supported by the Fund for the Republic under the
general editorship of Clinton Rossiter. It is easily the best of the
series, because it is the most authoritative. As a result, the reader
is able to grasp the profoundly different character of Communist
consciousness. As Meyer puts it: “For the Communist is different

ayn.
Yio
BOOK REVIEWS i a 19

Merapuysix. By Emerich Coreth, S.J. Innsbruck: Tyrolia-Verlag, 1961.

Pp, 690. Sfr. 33,

This is a brilliant attempt to re-establish metaphysics as thé “science of
being.” Beginning with the scientific evidence already contpined in the
very capacity to ask what being is, the author handles with dssurance the
insights into this question contributed by modern philosophers from Kant
to Husserl and Heidegger. Thus, though his thinking is basically scholastic
in orientation, he seeks to incorporate into it the best efforts of “transcend-
ental” thought. The result: a remarkable methodological rigor |in reflecting
on the evidence from beginning to end leads once more to tht conclusion
that metaphysics finds its ultimate foundation in the Being of God.

Fordham University. Quentin Lauer, S.J.

Poxrrican Justice, The Use of Legal Procedure for Political Ends. By
Otto Kirchheimer, Princeton, N. J.: Princeton University Press, 1961.
Pp. xiv, 452. $8.50.

When judicial authority is used to tip the scales in situations of political
equilibrium, the concept of justice is found in the most ephemeral of its
divisions, Traditional categories of commutative, distributive, social, and
legal justice embody strict moral implications in man’s societal life, but the
purpose of the phenomenon which the author describes as political justice
is pragmatic: the widening of the scope of man’s political activity by enlisting
the services of the courts in behalf of mainly political goals. The controver-
sial Nuremberg trials and Israel’s dramatization of a tragic era in Jewish
history, uniquely staged by an Eichmann trial, mark the timeliness of this
scholarly book.

The first of the book’s three parts treats principally of the causes and
methods of a state’s legal protection against dissenters, The author presents the
notorious “L’Affaire Caillaux,” the treason charge levied against a French
statesman by his political opponents because of his advocacy of a negotiated
peace with the enemy in 1917. 'The trial of Archbishop Stepinac in Yugo-
slavia and the use of the courts to further the state policy of anti-Semitism
in Nazi Germany or race superiority in South Africa are some of the other
well-documented examples. We are reminded also of the criminal syndical-
ism laws of the 1930’s in the United States which were used to counter
incipient miners’ unions. And of course, we have the Alger Hiss trial, where-
in certain fragmentary acts of the defendant were brought to light in order
to create an unfavorable image based upon his political and ideological be-
liefs.

In the second part of the book dealing with the dramatis personae of the
phenomenon of political justice, the author points out the complexity of the
judge’s task of individualizing the norm in concrete case situations. For
norms, we are told, are not meant for eternity, and those with which the judge
must work are gauged to long-term community needs, individual circum-

Quek ote

j.3

320 THOUGHT

stances, and “specific sociopolitical configurations of the age.” One wonders
if this is a jurisprudential concept somewhat similar to that of SJhering, based
on a morality of interests; perhaps such a concept would be more at home
within the corpus of doctrine attaching to the sociological school of juris-
prudence identified in this country with Roscoe Pound,

The defendant in the political trial usually has considerations at stake far
beyond that of a favorable court decision, Such considerations successfully
promulgated are exemplified in the trial of Jesus before the Sanhedrin and
in the classical trial of Socrates, while unsuccessful promulgation is evi-
denced in the recent failure of American Communists to win popular appeal
through the Smith Act trials, We should not forget, however, that the bumpy
road from the courtroom dock to national leadership is a well-traveled one:
De Valera, Gandhi, Nehru, and countless Soviet revolutionaries are but a few
who bear witness to this fact.

The difference between the responsibility involved for political-military
failure and for inhuman conduct must be recognized in what the author
terms the “trial by fiat of the successor regime.” Such was the Nuremberg
experience, and more. With all of its insufficiencies it was “the feeble begin-
ning of trans-national control of the crime against the human condition.”
We note with the author that the charges preferred at Nuremberg for the
most part were not charges of crimes against humanity, but were charges of
war crimes, similar in many respects to other common crimes.

The final part of the book has to do with the legal devices of asylum and
clemency by which the impact of political justice can be modified or even
frustrated. Their names may differ over the years, but we have always with
us the expatriate, the émigré, or the refugee.

In describing some of his specifications of justice it would seem that the
author has assigned an enlarged meaning to the adjective “political.” Never-
theless, these specifications provide valuable insights into the nebulous and
neglected political aspect of jurisprudential study.

Weston College. Frank B. Hiccins, S.J.

- Philadelphia drew the lines of the executive office in @

BOOK REVIEWS 119

ant is charged with an offense drawn from the ordinary criminal law.
Civil -actions, such as libel suits, may also serve political ends. A
special class of actions is the trial of a predecessor by a successor regime,
as in the Nuremberg trials, which are considered at length. In most
cases political justice aims at public opinion rather than at the
ostensible victim: the purpose is to vindicate a regime or a candidate
or a policy by establishing an image of the opponent as an enemy of
the common good,

Thus the political trial undertakes to recast history into a desired
pattern. By focusing on a single event, to which are attached both
Mecisiveness and culpability, it radically distorts the subject; but of
course distortion is the purpose. The political trial is a morality play,
‘The characters are the judge, the jury, the lawyers, informers, and the
parties, Usually the state is one of the parties; and it also supplies
the stage directions. In interpreting their roles the actors enjoy a

certain latitude. How great this is, and how it is used, depend on’

many circumstances; these the author explores and illustrates.

i, A chapter is devoted to asylum, and another to clemency. These’

arise in such widely varying’ situations, and discretion plays so large
a part, that systematization cannot proceed very far. .
* It is clear that Dr. Kirchheimer does not attribute entire objectivity
and certitude to the judicial process at its best. His approach is a
blood-chilling legal realism. Consequently he takes for granted both

‘the inevitability and the injustice of political trials. They have, how-

‘ever, this merit: they are a part of the struggle for political power,
and without them the struggle would continue in a less orderly way.,

Judicial process has.as its objective the solution of problems in
terms of truth and reason. When the magnet of power enters the
field, must the needle invariably swing to the new pole? Political
Justice recounts a few cases in which this did not occur, but thesé
must be regarded as exceptions to the rule. The dispassionate accu-
racy and the profundity of the book make the conclusion the more
depressing,

Francis D, WormuTH

University of Utah

7 KER, RICHARD P. The Presidency and Individual Lib-
erties. Ithaca? zt iversity Press. 1961. xii & 239 pp. $4.50.

Apprehensive of unrestrained and concé l_power, the men at
ited States

as part of the framework of the separation-of-powers principle,

DEC

BOOKS RECEIVED

BAR ASSOCIATIONS
Crrations AND BIBLiocRAPHy on THE IN-
‘TecRATED BAR IN THE Unrrep States. Ameri-
can Judicature Society. Chicago: Ameri-
can Judicature Society. 1961. Pp. 66. $1.
(Special law school rate of 50¢ per single
copy; 25¢ for five or more.)

BIBLIOGRAPHY

See also Bar Associations,

ANNUAL Lucat Biotiocrarny: A selected
list of books and articles received by the
Harvard Law School Library from July 1,
1960 through June 80, 1961 including all
items which have appeared in Volume
One of Current Legal Bibliography. Edited
by Vaclav Mostecky, Cambridge, Mass.
Harvard Law School Library. 1961.
Pp. xi, 215.

BIOGRAPHY

Lancoun As A Lawyer. By John P. Frank.
‘Urbana: University of Ilinois Press, 1961.
Pp. x, 190. $4.75.

CIVIL RIGHTS
FREEDOM AND Protection: THe Bit, or
Rucuts. By Andrew D. Weinberger. San
Francisco, Calif.; Ghandler Publishing Co.
1962. Pp. xii, 180. $3.

CONSTITUTIONAL LAW

‘Tue Supreme Court Revirw, 1961.
Edited by Philip B. Kurland. Chicago:
University of Chicago Press, 1961. Pp vii,
332. $6.50.

CONVEYANCING

‘A Hanpsook For More Exvicient Con-
vevancinc. By Lewis M. Simes, Professor
of Law, Hastings College of Law, Univer-
sity of California; Professor Emeritus of
Law, University of Michigan. Ann Arbor:
University of Michigan Law School. 1961.
Pp. xii, 98. $2.

CRIMINAL LAW AND PROCEDURE
See also Criminology.
ComMon Sense Anour CRIME AND PUNISH
ment, By C. H. Rolph. New York: Mac-
millan, 1961. Pp. 175. $2.95.

CRIMINOLOGY

Practica Hommomr Investicaion. By
Edward A, Dieckmann, Sr. Detective Lt.,
Commanding Homicide Squad, San Diego

Police Dept. (Retired). Springfield, IL:
Charles G Thomas. 1961. Pp. xiii, 85. $4.

ELECTIONS

MicmicaN Vores; Exxcrion Statistics,
1928-1956. 1960 Supplement. Papers in
Public Administration No. 24. By John
P, White, Assistant Professor of Political
Science, University of Michigan, Ann
Arbor: Institute of Public Administration,
University of Michigan. 1961. Pp. vii, 10.
Paper, $1.

FOREIGN GOVERNMENT
Guirrs or STATE AND CABINET MINISTERS
or THE AMERICAN RepusLics, Pan Ameri-
can Union, Washington, D.C: Pan Ameri-
can Union, 1961. Pp. 25, Ten cents.

FOREIGN LAW

A STATEMENT OF THE LAWS OF CoLOM-
MMA IN Marrers Avrecrine Business. 8d ed,
By Bernardo Rueda, Washington, D.
Pan American Union, 1961. Pp. xii, 808.
Paper, $5.

‘A SvATEMENY oF THE “Laws or Ecuapor
IN Marrers Avvucrinc Business. 2d ed.
Supplement. No. 2. By Eduardo Serrano
Moscoso. Washington, D.C: Pan Ameri-
can Union. 1961. Pp. 59. §1.

‘Tur Faces or Justice, A Traveller's
Report. By Sybille Bedford, New York:
Simon & Schuster. 1961. Pp. 316. $4.50.

\ GOVERNMENT AND POLITICS

Pourricat Justice. The Use of Legal
Procedure for Political Ends. By Otto
Kirchheimer, Professor of Political Science,
Columbia University; Member of Graduate
Faculty, New School for Social’ Research,
Princeton, N.J.: Princeton University Press.
1961. Pp. xiv, 452, $8.50.

JURISPRUDENCE

A®RICAN CONFERENCE ON THE RULE OF
Law, Lagos, Nigeria, January 8-7, 1961.
International Commission of —Jurists,
Geneva, Switzerland: International Com-
mission of Jurists, 6 Rue du Mont-de-Sion,
1961. Pp. 181,

LAW IN THE Maxino. 6th ed. By Sir
Carleton Kemp Allen, of Lincoln’s Inn,
Barrister-at-Law, Emeritus Fellow of Uni-
versity College, Oxford, Sometime Profes-
sor of Jurisprudence in the University of

[268]

1961

) Social Research

AN INTERNATIONAL QUARTERLY OF POLITICAL AND SOCIAL SCIENCE

66 WEST 12 STREET + NEW YORK 11, N. Y.
Bdited by THE GRADUATE FACULTY OF POLITICAL AND SOCIAL SCIENCE OF THE NEW SCHOOL FOR SOCIAL RESEARCH

May 23, 1962

Princeton University Press
Princeton
New Jersey

Dear Sirss

Enelesed are clippings from the Spring issue of
Seetal Research in which a review of your publication
appeared.

We are sending tear sheets alse to the author
directly, As I think you know, we were all very pleased
with Kirchheimer's work.

Sineerely,
Vedue Jos Coaas c
Jean Van gaa, Ay 7

Wditorial Secretary

“Princ

anne

%
\
\
: \
ae
e
With the compliments of the.
OXFORD UNIVERSITY PRESS “
Oxford House, Apollo Bunder, Bombay 1
_ “ 3
2 gs
tg i
&

duck (8 cualey)

Tom

A. G. Noorani

LAW AND POLITICS,

ye conflict between arbitrary power
and individual freedom is rooted in
the very nature of human society. In vary-
ing degrees societies have sought to fetter
the power of authority, to regulate and
restrain its exercise by law. Even Commu-
nist States speak of ‘socialist legality’, In
the traditional democracies the effort
seems to have succeeded. Yet, in times of
crises, even these have behaved in a manner
which makes one sceptical about success.
Is the State’s willingness to be bound by
the law dependent on the absence of any
major incentive to flout it in the name of
its own survival? .

Since the Courts are the prime ¢ stodians
of the enforcement of the law, it is but
natural that the conflict is reflected in their
structure and functions, in the indepen-
dence they enjoy and the -uses to which
they are put. It is legitimate, for instance,
that the verdict of the Court be sought to
eliminate treason. But what if the Courts be
used also to stifle dissent? Likewise, the
individual would be justified in invoking
judicial assistance for the protection of his
rights, Jt is wholly a different situation
when a person pledged to the subyersion
of the order uses the judicial machinery to
secure his freedom to subvert. Clearly, the
quality of the State will be measured by
the fairness with which it holds the balance.

Political Justice: By Otto Kirchheimer
(Princeton University Pres Agents:
Oxford University Press $ 3.95) is a_pioneer-
ing work on the subject. Sub-titled ‘The
Use of Legal Procedure for Political Ends’,
the book is a veritable encyclopaedia, so
large is the variety of regimes it considers.
Some of his conclusions seem cynical and

QueSsT

March (979

extreme. But his scholarship compels
admiration. ° a _

“Fhe term Political Justice is usually,
taken to reflect the search for an ideal
order in which all members will commun i-
cate and interact with the body politic to
assure its highest perfection, Is it, “then,
gross linguistic abuse and utter cynicism to
apply this term, as European writers’ have
traditionally done, to the most dubious
segment of the administration of justice,
that segment which uses the devices of
justice to bolster or create new power posi-
tions? ‘The opposite is nearer ‘the truth,
The Greek ideal grows sharper in profile
precisely because justice’ in political
matters is more tenuous than in any other
field of jurisprudence, because it can so
easily become a mere farce. By utilizing
the devices of justice, politic contracts
some ill-defined and spurious obligations.
Circumstantial and contradictory, the
linkage of politics and justice is charac-
terized by both promise and blasphemy.’

‘The legitimacy of dissent and, therefore,
of its legal protection, is a modern pheno-
menon. In olden. times affairs of the State
enjoyed a certain exemption from judicial
scrutiny. Richelieu said, ‘Tn normal ‘affairs
the administration of Justice _ requ
authentic proof; but it is not the same in
affairs of State.’

‘The author “gives three categories of
political trials: ‘The trial involving a com-
mon crime committed for political pur-
poses and conducted with a view to the
political benefits which might ultimately
acerue from successful prosecution;

“The classic political ‘trial—a regirne’s
attempt to incriminate its foe's public hbe-

wo and Politics

haviour with a view to evicting him from
the political scene; and .

‘The derivative political trial, where the
weapons of defamation, perjury, and con-
tempt are manipulated in an effort to bring
disrepute upon a political foe.”

But the classic political trial, really, is
the one used to uphold or to shift the
balance of political ‘power. ‘With or with-
out disguise, political issues are brought
before the courts; they must be faced and
weighed on the scales of law, much though
the judges may be inclined to evade them.
Political trials are inescapable,’

This is particularly so when the very
existence of a political movement is jin
issue, The author poses the problem thus:
‘In a democratic system the activity of a
revolutionary party has its paradoxical
aspect. While expressing the very essence
of an open society, it is directed at uproot-

ing this society. And yet an open society,

even if it is not torn apart by crucial social
or racial: problems, must give rise to such
hostile activity so long as there is no univer

“sal agreement on the. desirability of struc-

tural changes; political myths retain their
attractiveness, and the distribution of social
and political power remains unequal—
something which neither free elections nor
added pressure groups can make disappear.
But then how can, democracy, bent like
any other political system on self-preserva-
tion, permit the unimpeded’ operation of
groups hostile not only to the present
government but to the very essence of a

system in which change is predicated on

majority agreement?’

The Basic Law of the Federal Republic
of Germany expressly empowers the Con-
stitutional Court at Karlsruhe to ban a
political party after a proper trial. So far
it has found only two parties to be illegal
=the Socialist Reich Party and the Com-
munist Party.

It is a very delicate question, involving
as it does in Justice Jackson’s phrase ‘a
prophecy in the ‘form of a legal decision.’
The Court's verdict is not only based on
the known facts about a party's past but

49

also on an estimate of its future potentiali-
ties for subversion.

‘The Karlsruhe Court solved the problem
neatly, ‘In persistently regarding Com-
munist Party doctrine as an indivisible
whole, binding upon the conduct of: the
party organization and every individual.
party member, the German Constitutional
Court did exactly what Leninism demands
of his followers, thus putting the Com-
munist Party on the spot. Being evasive and
tortuous in their refutation of the uncon-
stitutionality charge, the party’s lawyers
went to all lengths to obviate discussion of
what party doctrine inelyctably implies for
party activity, As the Court did not oblige,
a more complex course was taken. The
party's spokesmen insisted that only the
immediate objectives pursued in the
obtaining historical situation were within
the purview of the Court and that these
must be viewed as independent from and
unrelated to revolutionary implications of
the party’s social theory; these implications,
they said, referred solely to an expected
future situation.’ ,

Undoubtedly, the plea would be made
by Comniunists everywhere and deserves
the answer the Court gay .

In the famous Dennis trial, in the U.S.,
the problem was differently put but re-
ceived the same answer. ‘Attention was
focused on two points: the definition of
‘teaching’; and the elusive difference bet-
ween permissible exposition of doctrine
and illicit advocacy of action that effects
specific parts of the doctrine. The defen-
dants were free to admit.that it was within
the realm of their doctrine to discuss
historial situations in which the violent
overthrow of the capitalist system was in-
evitable; but they had to deny having
advocated a doctrine requiring the violent
overthrow of thé government of the United
States. It was up to the prosecution to show
that, beyond the realm of abstract exposi-
tion, advocating overthrow had been not
virtually implied but actually committed.’

Dr. Kirchheimer’s answer to the sophistry
of Communist lawyers is devastating. “The
role of violence in this history-ordained

50

yeyolutionary process appears in two ways.
Lor -one, it is inescapable destiny; the
dominant class of capitalist society, whose
position in the process of production has
been slowly undermined over a long period
of time, must be dispossessed and suppress-
ed; and as no class in history has ever given
up its role withont a struggle; the violent
class is inevitable, Secondly, violence is a

‘job necessary for the sake of progress, a

duty devolving on the prime movers of the
historical process in the present era,” that

is, the working class, guided by the revolu-

tionary, ° Marxist-Leninist Communist
Party. What is doomed to fall must be
given a shove and a thrust to make it fall.
Swift, well-planned, violent action will
speed up mankind’s advance towards
harmonious existence. .
‘Obviously, this historical mission of the
Communist Party is not easily reconcilable
with the observance of the constitutional
order in a democratic state. Here Gom-
munist interpreters introduce another dis-
tinction, equally serviceable in United
States courts and at the trial in Kalsruhe.

Marxist-Leninist theory commands “a”

thorough, penetrating, examination of the
‘objective’ situation prevailing at any given
moment in history. At the present juncture,
the interpreters contend, the ‘objective’
situation bars a revolutionary course of
action; consequently, only ignorance and
malice could impute to the Communists
the intention to interfere with the demo-
cratic process in Germany, or to adyocate
violent overthrow of the government in the
United States. Does ‘knowledge of the laws

“of history’ give Communist doctrine a

special status in Court? Are Communist
lawyers the only expert witnesses whose
interpretation of Communist teaching
must be accepted on faith? Even conceding
that under the principle of freedom of
scientific inquiry, Communist doctrine is
no more subject than any other political
philosophy to verification or invalidation
by court decision, why should a court
renounce the’ right to do its own study of
the doctrine’s implications? .
The Karlsruhe court definitely refused

quest

A. G. Nooran,

to yield to the interpretation monopoly
claimed by the Communist Party and its
doctrine and law experts; Communist
doctrine—to the extent that it had become
a determinant of action patterns~was held
essential for the court’s interpretation and
understanding of the party's conduct, and
it did a comprehensive analytical job. The
procedure seems sensible and legitimate in
the light of Article 21 of the Basic Law,
If itis the right and duty of a party member
to check the correctness of this or that move
against the tenets of party doctrine, why
indeed should an ‘outside observer refrain
from learning the meaning. of Communist
action from the logic by which each point in
doctrine and action’ must fit into the sum
total of official teaching?’

The legal problem of banning Com-
anuitist Parties is not an insuperable one,
given the vast literagure on Communist
doctrine and practice. But what of other
organisations? What other criteria besides
allegiance to a foreign power ov advocacy ,
of the use of violence, may a State properly
set for the banning of a political party or
the restriction of individual freedom? ,

Here one moves into that twilight zone
between treason and heresy and the out-
come of the debate is determined by the
outlook of the judiciary itself and, indeed,
by that of society as a whole. ‘The judge,
or for that matter the jury, officiates with-
in a given social and political structure.

“Like the prosecutor or policeman, he is an

instrument of a concrete political system
established at a particular time angl place.
If community-wide agreement on methods
and objectives exist, if the public order
has been’so Jong established that it is taken
for granted by all strata, the judge may be
listened to as the spokesman of a God-given
and just order, But the degree of group
satisfaction may vary considerably, and
systems and power holders may change in
rapid ‘succession, Under such circum:
stances, the judge's ability to officiate as
the incarnation of the authority of .the
group, dispensing justice to the individual
even while adjudicating attacks on the

Law and Politics

regime, will suffer correspondingly. It will
become more difficult for him to perform
the feat for which the community selected
him: to give a just decision to the indi-
vidual case thrust upon him. ‘Just’ in this
case would mean ,a decision not merely
serving the needs and pressures of the
moment, but capable of finding a wider
‘and less transient adherence; a. skilfully
rationalized decision able to withstand, a
dispassionate scrutiny of its motivations.’

* e «

There: must be few cases, indeed, in
which the motivations of a judiciary were
as plainly and pathetically exposed as in
the cases of the evacuation and internment
of Americans of Japanese origin in the
Second World War. Prejudice, War and
the Constitution: By Jacobs ten Broek,
Edward N, Barnhart, and lloyd W. Matson
(University of Galifornia Press, Berkeley
$ 2.25) is a thoroughly documented account
of the causes and consequences of that
shameful episode in American history,

‘One hundred and (twelve thousand
persons, two-thirds of whom were Ameri-
can citizens, were uprooted from their
business, their farms, their homes; they
, were banished and interned for two and
one-half years under guard and behind
barbed wire, ‘under conditions’ in Judge
Denman’s words, ‘in major respects as de-
grading as those of a penitentiary and in im-
portant respects worse than in any federal
- penitentiary’. Justice Murphy, in a dissent-
ing opinion in the Korematsu base, charac-
terized the action as ‘one of the most
sweeping and complete deprivations of
constitutional rights in the history of this
nation in the absence of martial law. The
truth of this judgment depends, of course,

. upon whether the wartime power of the
military over civilians within the country
is a constitutional power and whether the
military in this instance acted within
that power; in short, it turns upon the con-
stitutional correctness of the opinion of the
United States Supreme Court to which
Justice Murphy was dissenting. But cer-

51

tainly, on the face of it, the American
citizens of Japanese ancestry—and in many
respects Japanese aliens as well—were
sweepingly deprived of their constitutional
rights of personal security: the rights to
move about freely, to live and work where
one chooses, to establish and maintain a
home; and the right not to be deprived
of these rights except upon, an individual
basis and after charges, notice, hearing,
fair trial, and all the procedural require-
ments of due process of law. More serious
still was the apparently flagrant denial—
flagrant. because the classification was based
solely on race—of the guarantee of ‘equal
and non-discriminatory treatment implicit
in the Fifth Amendment. Not that racism
in other contexts has been unknown in
America—far from it. But Americans have
always been profoundly concerned by this
disparity between creed and practice. The
courts have condoned it only with the
greatest reluctance. Moreover, this latest
departure from the democratic ethic was
more blatant than any before it. For the
first time in. the nation’s history, race alone
became a criterion for protracted mass in-
carceration of American citizens.”

The book’s analysis of the U.S, Supreme
Court's judgments in the two major cases
that went before it is as thorough as its
indictment is damaging. “In this way did
the U.S. Supreme Court strike a blow at
the liberties of us all.’

But it fails to ask why the Judges be-
haved the way they did, Mr. Walter F.
Murphy! gives a good example of judges
being swayed by considerations of
patriotism in cases involying issues of
national security. “In Ex parte Quirin, the
Justices were unanimous in their conclu-
sion that the government could try cap-
tured Nazi saboteurs in military tribunals
rather than in regularly constituted civil
courts, but they could not agree on an
opinion explaining why such trials were
constitutional. After the Chief Justice had

1 Elements of Judicial Strategy, The University
of Chicago Press, 1964, p, 48,

52

circulated three different drafts of an
opinion without securing full assent, one
of the other members of the Court sent
a long memorandum to all of his
colleagues.” oS

At the end of this epistle came this price-
Jess gem. ‘Some of the very best
lawyers I know are now in the Solomon
Island battle, some are seeing service in
Australia, some are sub-chasers in the
Adantic and some are on the various air
fronts. It requires no poet's imagination to
think of their reflections if the unanimous
result reached by us in these cases should
be expressed in opinions which would
black out agreement in result and reveal

internecine conflict about the manner of ,

stating that result. I know some of these
men very, very intimately. I think I know
what they would:deem to be the governing
canons of constitutional adjudication in a
case like this. And 1 almost hear their voices
were they to read more than a single opinion
in this case. They would say something like
this. And I almost hear their voices were
they to read more than a single opinion in
this case, They would say something like
this but in language hardly becoming a
judge’s tongue: ‘What in hell do you
fellows think you are doing? Haven't we
got enough of a job trying to lick the Japs
and Nazis without having you fellows on
the Court-dissipate thoughts and feelings
and energies of the folks at home by stir-
ting up a nice row as to who has what
power...? Haven't you got any more sense
than to get people by the ear on one
of their favourite American pastimes—
abstract constitutional discussions? ... Just
relax and don’t be too engrossed in your
own interest in verbalistic conflicts because
the inroads on energy and national unity
that such conflict inevitably produices is
a pastime we had better postpone until
peacetime.”

Mr. M. GC. Setalyad refers? to the Privy
Council’s reversal of the Federal Court’s
famous judgment in Benoari Lal Sharma's
Case in which’ the latter struck down an
Ordinance providing for trial of offences
under the emergency law by Speciat

Quest

A. G, Nooram

Courts. “Colonial writers on Constitutional
Law have on occasions characterized judg-
inents of the Privy Council as having been
influenced by considerations of policy. It
is not surprising therefore that similar coms
ments should have been made in regard
to the view taken by the Privy Council in
Benoari Lal Sharma’s case.”

One wonders how far a critic of the
judgments of our Courts can go in attri-
buting policy considerations in sensitive
cases.

Political justice has reared its head in
India. The Unlawful Activities (Prevention) ,
Act, 1967, goes a Jong way towards out-
lawing dissent on some vital aspects of
India’s foreign policy.? This law was en-
acted in the teeth of the late Prime
Minister, Mr. Lal Bahadur Shastri’s advice
(October 31, 1964) that in a democratic
country like India, problems such, as those
in Kashmir, Nagaland and Madras should
generally be tackled on the political level
rather than by utilizing the power of the
State. He said some people in Kashmir and
other parts of the country were advocating
that the Government should ‘take action
against those who talked of independence
for Kashmir. But in a democracy the
Government, did not rule merely by force.
‘The real sanction behind it was the sup-
port it’got from the public, ‘He said: .

A blatantly political trial was launched
and continued for years. “Sheikh Abdullah
on trial on charges which everyone recog-
nised were bogus had become the totem,
figure of the long, dark night of Bakshi
rule,” Mr. S. Mulgaokar remarked (The
Hindustan Times, April 8, 1964).

Undoubtedly, the trial did not represent
the norm; it was a sorry exception.

As for the courts themselves, on . the
whole they have acquitted themselves
extremely well and contributed immensely
to the strengthening of the rule of law in a
democratic State. Is it surprising that the

2 War and Civil Liberties, Oxford U. Press; (46,

P aos nt
"8 Fide the author's: articles in [Weekend Review,
August 5, 1967 and March 23, (968-

, .

“aw and Politics

Communists have mounted a concerted
attack on the judiciary?
In-the long run, both, authority's as well
as the individual's effort to use Courts for
political ends are futile. a

International organisations of high 1
pute and acknowledged impartiality
like the International Commission of
Jurists and Amnesty International have.
rendered great service to the Rule of Law
by exposing some outstanding abuses of
the judicial process committed by States in
order to suppress dissent.

Dr, Kirchheimer’s conclusion defies
improvement: “Political claims eventually
stand or fall on their own strength. A poli-
tical trial might bring out and focus atten-

53

tion on a of weakness or
political organization or a cause,. Yet the
authority of the trial neither adds nor
detracts from’ the fundamental justifica-
tion of such political claims, namely, the
justness of the cause.

“Yo that extent political justice is bound
to remain an eternal detour, necessary and
grotesque, beneficial and monstrous, but a
detour all the same. It is necessary and
beneficial because without the intercession
of the judicial apparatus the fight for poli-
tical power would continue as relentlessly,
but it would be less orderly, Thus what
Pascal calls the ‘grimaces’, all the external
marks of distinction by which the judges
establish their title and dignity, are bene-
ficial.” °

irength of a’

31 versity and ‘member of
©f graduate | faculty "of "the New,
{) School for Social ‘Research ‘hes
“here made ia’ wide-ranging’
Athough: hardly” inclusive). sur
vey in'some depth of political
justice in many. countries from.
antiquity to moderntimes.
Political justice, as his’ st
{title suggests, is the effort, sin-
cere or cynical, to make offenses’
‘against the state or the national’.
security J look like ordinary crime
“and to apply.to them the process —
of criminal law.
The author starts. off with a
xy viyid narration of, the Goebel
murder casein late Ninteenth
“ Century Kentucky, when a Gov-
® ernor-elect hy assassinated and
it. trial we

of us would:be for }
wever “mechanical iis?
di

ported by. the scholarly: appara- *
tus, each page knee-deep in foot-'.
notes.. The ‘prose is accurate but ;

other manual ; ‘remote ee com);
mon usage, ‘There is at least one

trial), fs Friedrich Ebert, Bl
oof Repub!
_ Camilo: Rota: “Ein Todesurteil
ware zu.unterschreiben.:

Der. Prinz: ,Jch hire ja wohl—
Es kénnte. schon. geschehen
sein. Ich. bin eilig.”

essing: Emilia Galotti, L. Akt,
8, Szene.

Seit dem 19. Jahrhundert
hat’ die politische Justiz ih-
re,.Opfer_unter Juden gesucht
und gefunden. Der jtidische In-
teliekt (und Intellektuelle)
stand iiberall in einer .Kon-
fliktsituation in Staaten,"die die

ees

litische’ Justiz"
in“ den’ Worten" des’ Staats.
rechtslehrers © dér | Columbi

Universitat’ Otto. Kirchheimer!

*bringt ‘keine eigene ‘ Lisung;
sie will lediglich’ den Zusammen-

stoss zwischéit”-Herrscher und*

Gegner, in einer dem Herrscher
genehmen Weise. lésen. Wenn
ein Staat den Streit mit ent-
schlosseneri Gegnern nicht einer
wirklich unabhangigen ; Instanz
zur '* Entscheidung: ‘ iiberlassen
kann, ist der Prozess dann nichts

\ als die dffentliche Wiederholung
einer Entscheidung, die Schon
anderswo gefaillt wurde.“ “(Otto
Kirchheimer: ~ Political » Justice
—. The ‘use. of legal procedure
for political ends”, ‘Princeton
. University Press, 1961). Wir den-
ken an die - nationalsozialisti-
schen “Gerichte” und verstehen

- Kirchheimers

iz mit der ‘Politik, intesrier.. de

der. Geschichte: nichts lernen.”
Namensregister
liest sich manchmal wie eine Ge-
schichte jiidischen Leidens: Las-

=, salley Dreyfus,’ die:-Opfer der

Moskauer Prozesse, Slansky-und
Reik — es sind immer -wieder
Inden,.die fiir den Unterschied
in der politischen Auffassung
mit dem.Leben oder. mit dem
Verlust. der Freiheit gezahlt ha-
ben. Nicht umsonst. hat der Ju-.
ristenberuf den Juden angezo-
gen; das Recht. ist , Riistzeug: in
der Abwehr des. Unmenschli-
chen,,dem der Mensch nur ein
— stets ersetzbarer oder .aus-
wechselbarer .. Bestandteil der,”
Staatsmaschine,ist;" der <Verlust,

Schweizer Regiermg deutsche
*atische” Touristen begriisste,
und” die “Kennzeichnung der
Passe deutscher Juden' durch den
Stempel J”. "als. erwiinschte
Lésung betrachtete. Der offene
Bruch: des Asylrechts
Riickstellung der: “illegalen”
Filichtlinge aus. der. Schweiz)
war das Todesurteil fiir deutsche
Juden; unmittelbar. fiir die Aus.
gelieferten, mittelbar fir Un-
zahlige. a eee
Formell ist im Fall Hichmann
das, Vélkerrecht beachtet wor-

(die,

den, Tx Im Volkerzecht hat das In.
dividuum keinen Schutzan-
spruch; da sich ‘Argentinien mit
der israelischen Erklarung zu-
frieden gegeben. hatte, -brauchte
die vélkerrechtliche Frage viel.
leicht nicht einmal-erdrtert zu
werden. Auch die jiidischen
Fliichtlinge in der Schweiz hat-
ten keinen: vélkerrechilichen
Schutzanspruch. Will ein totali-
tarer Staat in Zukunft einmal
einen jiidischen Gegner treffen,
so kann er mit einem gewissen
Schein von Recht versuchen,
sich aug den Fall Eichmann zu
berufen — nicht auf das Urteil,
das rechtmissig war, aber auf
die Vollstreckung,

an die Traditon der Gola in“ dit

set Hinsicht angekniipft?’* ~

*, Hier hat'die Vollstreckung-des
Todesurteils im Fall Eichmann
Zweifel erweckt: “Der " Staats-
mann muss oft rasch’ handeln;
der Richter darf nicht eilen: ‘Die
Bestatigung / eines «i'Todesurteils.
ist ein richterlicher Akt; sie ver-
langt ruhige “ErwAgiing, ebenso
wie das Urteil,Lessings Camilo
Rota hatte den Prinzen das ‘Ur-
teil -.”in™ diesem“ Augenblicke
nicht mégen unterschréiben las-
sen, und’-wenn es den’ Mérder
seines ‘einzigen Sohnes betroffen
hte”. Aber- Lessing’ passt nicht
in den ;modernen” Staat; so we-

die Sorge, aus «der; heraus~nig -wie die. <Weisheitsi:Julius

der amerikanische Jurist’ resig-
niert. ‘Aber: :dann>muss.-es “uns

© -Ende,; des... ersten “elliaiozes:

s yurions, «: -die.-Massenausrottung
“svoneJudenz in der «
y...Gelegenheit_des. Eichmann-Pri

zesses, als. den entscheidenden

}.,spruch in einer stindig drohen-
> len‘ “Well Zu beniitzen: was

°* elven

Sis mein ale r tiiekel ders Haupt

‘Nahen. Osten, war esim ‘Jatire,

"Staaten sind ‘traditi ns.
die’ Gesthichte’
“E:

es: fiihrte. zu dem:Wunsche-Ben |,

Punkt fiir Israels Existénzan?die Geting

Caesars,;der- selbstan Catilina-
ern ein Todesurteil;nicht:voll-

ies”

-Eichmann-Urtéils’ gebilligt-Wie j a
+atten in Israel-und anders-

‘WO <—? die} jenigen reagiert,” die

_Honslager

cs
ist“dann? wichtiger. als, d
iche

Si glist!
Benen. dle;

stiitze deritwestlichen: Allianz im “Welt,
> der’

nd. Konzentra~,

Seite.9.

Der Vergleich mit Lessings
| Prinzen."trifft ‘auf die israe
| schen' Minister gewiss nicht zu;
sie haben das Pro. und. Contra
erwogen.-Aber der blosse Schein
einer: Integration der Rechtsfra-
ge. in’ die “Politik (und wie
Kirchheimers’ im, Jahre 1961 er-
schienenés Buch .zeigt, besiand

-dié., Tatsache, dass ein ‘so
tief_schiirfendes Buch’ den Ei
mann-Prozess als Beispiel‘heran-
-zieht, muss jedenfalls zu, denken
geben, wie immer man, letzten
Endes zu’ Kirchheimers Ansich-
ten steht.

Hite: lingsblatt [Tei Av

Nr. a9

~23 Nov

(ee
Tne Carcurus or Consent. By’ James
M, Buchanan and Gordon Tullock.
University of Michigan Press, $6.95-

Powrr aso Civiuarioy. By David
Coopernin and E, V. Walter. Crowell,
$8.75

Tr uc oF Power. Edited by Harold
D. Lasswell and Harlan Cleveland.
Harpe, $7.59.

DEMoc Rs Manifesto. By William O.
Dougles. Doubleday, $2.00.

Pourricar Justice. By Otto Kirchheimer.
Princeton University Press, $8.50.

+ THESE FIVE volumes have one thing

in common: each is concerned with

politics and in each ethical consider’ ~"

ations play a tole—if not downstage, at
least in the wings.
Of ite fise it is The Calculus of Con-
sent which most directly engages the
vader in debate. The authors
sturt with an assumption concerning
polities similar to that which reigns in
economics: rational individuals operate
in a situation of competing and some-
tines comnciding interests, out of which
arise structures and forces which bring
about change. Politics, they maintain, is
the study of trade in political influence
and power whereby die individuals of a
5 tnough give and take

given wie ;
learn whit busic structures are to their
advantage (and which are then adopted

as consuitutional provisions) and what
actions may be taken by a majority
within what Hmits and under what cir
cumstances The bulk of the book is a
‘cal study of this process.
and Tullock clearly dis
n method and ethical
“hey do mot assume that
iy ure mouvated only by nar-
inions of “interest” or that
mis an ethical creed for
suly that chere is any
part fora the sum of

highly tect
Buchanan

tinguish be

judginent

‘neh men are able to make
«tion with others—

itv upon them

denying that there 8 au: ethical standard

for human behavier which stands over
ayainst aH men. ive the task of
politics to be the “mmaimizing” of those
areas which individuals’ interests

neide with each other and with the
in order that ethics
hh an intolerable

ethical standard.
not be bu ned wit!

task of estrene. Politics, in short,
must he methoda.eyie optimistic
about man, abot progress and about

sovial harmony bur rnodest in its philo

sophicel pr.ensions

wdud convictions and
is Nor do ssume that ail men
al, bu state is

([ohiishan Contw

are too lamge'or’ heterogeneous to €:t2!
ish ‘the basis of common. interest in’
which one aiember or group refus< 19°
play the game of give and take anc has
the power to enforce his will; in w wick
for any reason individuals are ii ine
formed or irrational Indeed, it would
seed i> be inapplicable in all: chose
conditions wherein because of our sin-
fulness we find ourselves. he fac. res
mains, however, that the method » iich
authors expound is eswnelally that
which 1s employed wherever political
i Tuction 15 being ateempted in to.
day's world. It is, for example, the’
method by which tne European Ego-
nomic Community is being built, with.
its careful exclusion of appeals to prin-
ciples and loyalties which might disrupt.
Irivvals» the method by which this Com:
munity is developing its relation ‘to
Africa, And a state department spokes:
man speaks of discovering “areas of over:
lapping interest". with the-Sovier Union
as the methodological hope for the year
ahead. Is it possible that some
broods over this empiricism—a grace
which cheofogians have yet to discover?

The. Ethic of Power consists of some
24 papers tead to the Conference on.

Science, Philosophy and Religion at the.’

Jewish Theological Seminary in Ni
York on the subject of the intera
of religion, ethics and politics.
major religions and a variety of ethical’
and political ‘points of view are rep:
sented,, Most. interesting to this reviews

was the dialogue” between the: realists’

and the ethical-syste;
problems:as" th c

-tyranny.'and. tempts:

foreign. governments and: peo;

builders on su

shortcoming, one ‘which reflects | the
whole ‘climate of American intelectual
cle: it deals with: religion and ‘politics
by: having. separate séctions on each: It
«is enlightemag to read of the’ political

ideas of Hinduism, Buddhism; Judaism,
Protestantism. and Islam, “but it is ‘fras-
trating to’ discover‘in .the sections in
which. politics is analyzed and’ action
proposed ‘almost ne explicit reference to
religious. conviction.:’"The principles, and.
actions there se / forth and. the’ analyses,
offered presuppose’ other and mor¢ ‘con-

Aus P1963)

eaxest” TOFS TNS Ee
"§ Manifesto, by William CO
which js simply 2 zousing piece

of high-grade journalism packaged expen
jively between hard aot: and Powe:
znd Civilization, which bears the sub
title “Political Thought in the Twenti
;, eth Century.” The bulk of the latter is
made up of short quotations from 45
iticians and thinkers to i lustrate the

“t+ Movement from igth centu:; liberalise
7 (to the complex spectrom of today's
: ‘thought bom of the criscs «f two were
and a depression. The authors link the

, ‘Quotations with interpretive essays, but

“ot: their powers of conceptualization are

‘Hot strong enough to give the book a

Gear profile. The impression both these

give supports the mood of liberal

"idealism, but without much analysis of

its problems. Justice Douglas’ volume

‘ ppudes a trenchant criticien of our
“i ture

to impart this idealism to the
‘ peoples of Asia.
i. In sharp contrast stands Otto Kirch-
imer’s massive study Political Justice:
The Use of Legal Procedure for Politi-
cal Ends. In the tradition of German
_ scholarship Kirchheimer is painfully ob-
} jective and thorough, and he carefully
iS'refrains® from “value” judgments even
'|f when dealing with the most outrageous
violations of judicial autonomy by po-
tical power. He includes a section on
? asylum and demency and advises us that
these no less than political trials and
manipulation of the courts constitute
political interference with legal pro-
‘cedure. In a conclusion bordering on
cynicism he states that political justice
' at least gives the defeated a chance to
protest before he is hanged. Political
justice “is necessary and beneficial be-
} Cause without the intercession of the
» judicial apparatus the fight for political
power would continue as relendlesly,
but it would be tess orderly.” “Neces-
sary and beneficial”—nonetheless the
~ book is dedicated to the victims of
© political justice, and a cold passion for
true justice informs it. Its discussion of
“judicial space” in totalitarian societies
as well as more democratic ones is 2
magnificent analysis of the natural oper-

Z

{
| ation of independent objective law and
P

its judiciary in the face of political at-
_ tempts to bend it to other ends. Kirch-
beimer is too aware of the ambiguities
of all pretensions to justice to say out-
right that the law will win and the
political agent fail, But the book is a
“part of the fight. Pethaps here too 2
grace is at work which we would do well
to take account of. :

* Cuaries C. Wesz.

fe 30,No. 4, Autumn 1964:° >
it 1962 by the University of Chicago

TBW [Vol 30:191
a HA ic protection of ae or roment in power, Iti ig fot

our ‘ee A goveriinént 5 imay ‘dispose, arid often enough has dono so,
ite real, suspected ort a factured enemies without interposition of the.
dic Administrative: arrest ‘and protective custody in a concentration
‘camp a but illustrations from: ‘our own times. They have been used not only.
y fase tlongl-socialist or communist regimes, but during Wo ‘ac It
id pasa States... oe

[U. of Chicaga Law Nevieo
Ya) BO No | Aug 62)

A po!

3 i ly “specious, t bit successful, attempt of,
can tenet Poitioard through @ treason charge to péevent Caillaux from

liticat power lutiig “World Wat I, and’ front using it to bring.
} o{starids for what may be called political judtion in its
regina can’ ja undermined by forcing a member of the -
himself against libelous charges before a judiciary ©
suse is demonstrated by the case of Friedrich...

Sane public’ after te collapse of the
f a MOE

atrupglinigiagainst: alng oe ‘regime.or-a'colonidl oo :

power. Incehich
snc en »pbaits tO broad: It applige only 66 liberal ane
ie “opened themselves to democratic ideology-and

own: rule: In; v8 stich ‘softening has”

md: ‘eatetirig aan: or: governmicnt ioe its opponents :
iga typical » pon of what Kirchhelmox falls “slate protec

200. Vhs UNIVERSITY, UF CHIGAGU LAW bobvitw [rah sua

ybcuplted: iRevide ur Aigd,.in' whioki the exercise of power, .. ofder

be nocopted as togilimate, snisst'bs demanded by, or at least cortéspond to,
ol, the reasonableness “of the exerelee Af povernnierital ower’ fhust be
visibly demonstrated, This tasa o1 legiusniaiiy 10 individual’ cases t the xeroied
bed dere a ee et itis directed ‘against an alleged enemy,

te

ig.9 trong: ngiwill to’ maintain power, minority, regimes have been able.to:
cone per poaa asl dene as. they, have, not: been sceompanly He :

‘he views of the government.
oft ati independent’ juicy,

0 Ality of vigoron fo
‘Nelthor, waa:thie. onthe
teat AY cenrney ae effortatide
i spent eff
eu ble. lof only

ditho'dangor ofthe political ‘rial. being wsed Sere te

me dayath 8 ‘ phiblie forant. | highest to-compro

eae ee i : What aid the motivationy for He decision ot whether or not toxprosrcute,

| the affirmative situation, of how to “dress up” the case?

xe: problems. arédliscussed-on the basis of a large amount of mar)
gonistititional countriés such as the United States, Germany,
, Great Britain and: South Africa, But how do the prab-.
ns pre: eingelves in «totalitarian: country? The German Democratic
epublig (heh Base Germany) séives as & richly’ dociiniented illustration of the

analysiy’ ofattitiided of
bon ‘kings,

ref Hao
tina
days H

aye ‘The tinpact of thei iaquiry isdue
) scope: of thé author's iiataelal, Political
, especially in recent ‘yeats when
Such’ a Widespread And disquicting phenomenon; The number £
oral American cases, practiées and problenis has been
sheers Gait ‘tlie "Teader’ fd ‘such’ a ‘wealth of ‘material 48 in
je arly, the ‘approach is froma higher level; phe-
jit are teflected, in’ those of aujother, Thus

tition f asylum. and. mercy,” Sy rei
wer by, the ims of its terre,

Polisi 8 4 of the several nations in. the ine
i idual? What

ne

Sia 4
23'The set that the author is not & Jawyer has found Gato in hi vinoithedox and dt
‘times anocyl mode’ of ing ae Sneiet and foreign,

ntalé: ‘The book constitutes #
Law teachers might well consider. its tise an a
une on jurisprudence, For ving

to defend our

of ‘the ph
presents an dnirable survey.
Austria during the Ba
i

~ qamequence, ee author, wt
serminology, failed to: grasp
the Save Union, name

judi 4
for th ¢ rule of law. is at
AL

La poldm ue avee Mazzini, £1
ive Vol 1 Leid

_ upon’ Max Nett:

Michael Bukurinc: Kine Biographie
1900), and yporr the six-volunie Oeuvres,
tion with Newlaw oe

‘ Gailsume’s manuscript ve
a publisher“ In June 1935. Lehning and
0 publish the “seventh't volume in Led
Amsterdam:

eT its “present handsome. forma the: onllection:
by Guillaume, Because the “Amsterdai a
egy many. additional dodumenw. forse
doctinenis "housed in libraries and ar
ach voluwe ins the: ‘pres

ie v prefaced
_- complex three-cornered: ideological
“period which saw: Bake
agi and | Marxists for leadersh:

Jnduding ‘the recent one by :
* jst Movemani: Origins, 1800-1882" (Pel
MM (July 1959), 18931
with the zen ned

ibe :
Seno ie i enon me

terested. ta. fustion: Phe socton: ofr political: nd
: systems pointing’ out difficulties even for. imes

voltime)‘add: to the signi

fa equal: depibyy 0
“Florida State University

of kegak:
“ [Princeton U
Oxford. University Press. 1961
and Index) 20 PP
Tuts long, detailed an i ting. wor)
~~ historical point ‘of view /and-as & contem|
“ tion ‘of the legalgystem, ‘and in: particnla:

faces the judge ‘inithe po i
guished. from: the, ‘ordinary’ crimin

present totalitarian countries

the maintenanesiof politigal power, «It dise
i

rn -Politicul: Ends:
Pres:

8. “London: :

(

{ Law of Stanford
unists (of which

Die Justiz als politische Waffe

Hi
Is’ by

“political jue
‘Political En:
‘Princeton: Univer

’ ‘Otta Kirchhetmer, in Heilbronn (ne
geboren,'.Dr: jur, der. Universitit
. + Bonn, “Proféssor, an.-der New
" School for Social Research in New,
York, und letzthin Fulbright Pro-
' - fessor in: Feihurg iv Br. hat mit
’ seineni. Werk ‘tiber -die politische
Justiz einen hervorragenden Bei-
trag zur Wissenschaft. des. Rechts
und der Politik geleistet, Auf 452
Seiten analysiert er den Gebrauch
ynd. Missbrauch, den ‘politische
Machthaber oder Funktionare der
Sustiz selbst mit der Rechtsspre-
“chung seit Jahrhunderten getrie-
ben , haben. Mit © umfassenden
Quellenkenntnissen ausgertistet,
hehandelte er die Justiz-der an-
glosichsischen’ Linder . mit ‘der
gleichen Intensitat wie die des
, europiischen Kontinents z. B, der
franzisischen Revplution ,der Mo~
narchien, der Weimarer Republik,
der, Bundesrepublik, des Ost:
blocks, der Alliierten-nach“ dem’
I, Weltkrieg,und sehliesslich den
politischen Justizfall: Eichmann. ,.
“Acht.Jahre Politische Justiz”,
hiegs eine Denkschrift der deut

an: der’ By Iv-Gumbel,K....
mann ‘und ich vor 34 Jahren
arbeitet hatten; Jetzt hat Kirch-
-"heimer atich dieses, Thema wis>
senschaftlich. behandelt und :ge~
zeigt,
einer Demokratie ;.auch..durch
antiydemokratsiche- /Justiz-Kriitte
erfolgen kann, die politische Mér-
“der laufen, lassen, und Anhinger
+ der’, Demokrati “durch , (Ustelle’
“diffamieren. . i
Kirchheimers issenschaftiiche
+ Analyse; fer, nationalsozialisti~
-. chen Einwande -gegen die Niirn-
ist. besonders

ee

O8S~

ity Press, 1961, ($8.50

schen Liga fiir Menschenrechte, |
=H

wie . die Unterminierung |-

tye

se. "et Légal Procedure for,

Otto Kirchheimer "© °)

ne..Klarstellungen.. sind, — zeigt
eine erst ktirzlich. stattgefundene
grosse.. Diskussion: iiber die Be~
wiltigung politischer Schuld in
Strafprozessen vor der. Katholi-
schen Akademie in Mlinchen. Mit
Reont hat oe Wilhelm. Wenger

‘Alan Bat h, Leitartiller an der
Washington: Post und ‘politischer
Wissenschattler, Setzt in einer
glinzend geschriehenen” wissen=
schaftlichen. Studie ‘auseinander;
wie unsere Grundrechte durch
gewisse Massnahmen:von Justi
und Polizeibehérden standig be-
droht werden. Er beschiftigt sich
mit.-unrechtmissigen Verhaftun-
gen, Missbrauch von Gestiindnis-
sen, Verletzung der Privatatmo-,

im Rheinisthen oct! auf die
bittere Tatsache hingewiesen, dass
bei dieser Diskussion einiga 5 uri+
sten den .Versuch machten, die
strafprozessuale Bewiiltigung von.
Massenverbrechen als juristische
Missgriffe: abzuwerten,

Das Buch -Kirchheimers’ sollte |’

daher auch an deutschen Univer-
sititen und Gerichten weite Ver~
breitung finden.

“The Price.of Likerty” by. Alan Barth
“2, The Vileing Press, New York 1961, $4.50

\
sphire durch Abhérvorrichtungen
und uhnlichen ungesetzlichen Ak>
ten. -

Das gesamte Problem der Grenz-
ziehung zwischen den Rechten
des Biirgers und denen des Staa-
tes zum Schutz der Allgemeinheit
wird in diesem ausgezeichneten
Buch auf 212 Seiten an prakti-
schen ‘ Beispielen behandelt, die
aus .der grossen Journalistener-
fahrung des Verfassers stammen,

4 Robert. M. W. Kempner

Book Review Digest |
New York, N.Y.

"1962

Pe
q ATT .
\, IRCHHEIMER, OTTO." ar pati justice; tho
of lpgal procedure for political -ends, 4652p
$850 Princotgn univ.

! 320.1 PelMeal colence, Law °° 61-7418

An “analysis of the operation of the judicial
process when ‘used for political purposes—the
_ends it serves, the cfreumstances "under which

it Is invoked, the Tonner ner in which it reflesia
and’ responds’ to political pressures... (Lhe
Ruthgr @ Drofossor of Polttical. Boletos at. Co:
lumbia. University] ‘considers political justice
In many different periods of, history, under a

foty ofr =
merous, cases." (Bol Sof &) “Exbhlonraphveat toot
notes, Index,

“Considering the scope, of this work, it is
yery much to icohneltee ‘8 oredit that he kept
control of almost, all many threads from
Site nS wove this agtatlvos fe lets the reins

om ie,
eompanion volume rather than an Imbalance In

dent:
Symon”
++ —~ Am Hist R 67:679 Ap '62 650w:

work in
ers in “asngtitutlonat history. and b:

proach, delineating t in terms of, the
agsumbtions, motives, nidues, and actions
of practitioners of power, he now’ and “the en OE
Breese, Jugemen’s in. ‘Ideal” terms.
ue ine, contradictions: : do

slanifcantly detract. trom this, real contribu-
jon to jurisprudence, . The ‘extensive foot.
hotes nol only enrich the pools bul Indleate
the ‘wealth of materials used, many not avall-

able “in Paseo Tk
+ Pol’ Sol  66:488 Jo "62 bow
Reviewed. by J, H, Slrolniok,
-f— Am 806" R 27:723 O 162, 600w
++ Ethics 72:226 Ap '62 Gow
++ Forelan arralre. Ce ace Ap''62 80w -
Reviewed by J.
PRfbrahy sR Met °02 t80W
‘qrales of state trials are naturally dramatic,
and no one could have paraded ‘them | wit
greater erudition or industry ie Otto Kira
elmer, ss. Whenever he recounts a partic.
Rie en" OEE over rane te ator ;
9

also, portrays forties sphosgeutigng in” an “un-
famillar a gogneelve mond
BK R pl2 Ja 14 "62 ae
oy an ate perceptive discussions oft
of informers? the sim nifjcance of tat ae

aming collaborators. in polltleal
function of the security polica:
f oerectors including Am
pon, repentance:
political deviants, aay jittie
hat. illuminates more’ shat
edern, democratic | soclet
liberty and change under a,

in
Fortunataly, tio style is gbscurs. at. Lim :
but as one’ proceeds it mains in clarity and los
ane TT, Hmerson ,

Pol Sel @ 77:267 Jo '62 800w

208 Tae duasian Review» py

ae Princeton “Univers
961.452 pp. $8,50.

of this boo
Sele

“Tes oe

an “insider’s"” story. Inside a Sov
ig fictionalized at least to

PONS
‘Teports of cory :
and statements. But this is a stand-
‘d technique which may owe, as ez0)

to Mr. Simon Wolin who cal trials: “The tial i ing 2

edited the book as to Mr. Kazna- comrson crime committed’ for.
cheev. The general descriptions of litical purposes and conducted with
the intelligence functions of Soviet a. view .to. the political benefits
_ diplomatic and other missions and which might ultimately accrue

such missions are in accord with classic politic
“evidence on these points from other
sources, erie ee :

‘Syy ae scene; and derivative political
Syracitie U przerety. trial, where the ‘redpons oftdetans.

pe manipulated In an effort to bri
Kircniemer, Otro, Political Jus- dis: ¢ ra

tice. The Use of Legal Procedure 16) ¢ worst kiad of a political
for Political Ends. Princeton, trial is “a spectacle with —prear-

of the internecine distrust within from’ successful - prosecution; the ~
eek Seer

a¥} z
» Warren B. Warsa  evicti ‘or from. the political
Le

tion, perjury, and.contempr are |

pute upon a’ political foe™ (p...

7
3, briek:
id.

° ‘Wil
usefulness for —politicia
and‘teachers

The Green Oak,
an i Press, 1962.

reen Oak, a collection of Lith-
uanian poetry ancient to contempo-
rary, is remarkable for the number 0s fs vB
cof entries that retain their sparkle Lronttagp, Worreane.. The Krem-
and impact despite the difficulties fin Since Stalin. "Frans. by. Eliza
of. their rebirth in English. Their id Marian
fidelity to the Lithuanian. texts can- I
not be judged by this reviewer, but 96:
as.an enjoyable experience for the

Mills and Landsbergis as well.as to changes in Soviet leadership from
the nearly'two dozen translators 1952 to the present. ‘The. author

“who. contributed to the volume... tries to go behind the scenes and

«Digging: downto the roots of report’ the: intrigues: of, the top

a

call
AMERICAN SOCIOLOGICAL REVIEW-70

N.Y. University
Washington Square
New York 3, N.Y.

ocT

Bi-M

62

Cire. 9,276

cr

BOOK ‘REVIEWS

responsible for the emergence of conflict sub-
cultures, Cavan is also prone to make statements
that are open to considerable doubt, such as
“most juvenile offenders either smoke marihuana
or use heroin.” Despite its limitations, the book,
if judiciously interpreted, will serve as an ef-
fective teaching device.
Perer G, GARABEDIAN
Washington State University

Changing Patterns of Military Politics. Edited
by Samuet P, Hunrincton. Preface by
Hemz Evzav, International Yearbook of
Political Behavior Research, Vol. 3. New
York: Free Press of Glencoe, 1962. 27:
pp. $7.50,
In the current era of international political

power relations, the military establishment has

assumed a top-level institutional posture while
the military profession, by force of circum-
stances, is increasingly assuming political roles,

Samuel P, Huntington, the editor of the present

volume, is probably best known for his author-

ship of the 1957 book, The Soldier and the

State: The Theory and Politics of Civil-Mili-

tary Relations. -

FHluntington does not offer the present book
as a sequel to this earlier volume. It is, rather,
a collection of essays with an introduction and
concluding overview by Huntington, In the in-
troduction, Huntington discusses “The New
Military Politics,” followed by his essay, “Pat-
terns of Violence in World Politics.” Then fol-
low the interesting essays by well-known au-
thors: Harold D. Lasswell, “The Garrison State
Hypothesis Today”;. David C, Rapoport, “A
Comparative Theory of Military and Political
Types”; Laurence I, Radway, “Military Be-
havior in International Organization: NATO’S
Defense College”; Raoul Giradet, “Civil and
Military Power in the Fourth Republic”; Philip
Abrams, “Democracy, Technology, and the Re-
tired British Officer”; and Martha Derthick,
“Militia Lobby in the Missile Age: The Politics
of the National Guard.” In his introduction,
Huntington calls this collection of essays a
symposium of papers which have neither com-
mon subject nor common method, He does,
however, suggest that they will serve a com-
mon purpose in opening the door to fruitful
research in what he calls “the new military
politics of the 1960's.”

To this reviewer the most interesting of the
essays were those by Lasswell and by Derthick.
‘These two essays are particularly current and
deal with facets of the American political
power structure under constant discussion in
the mass media of communication, The preface

na 123

to the volume, by Heinz Eulau, is also well
worth the reader’s attention, .

Huntington has done an excellent editorial
job despite the fact that the essays are almost
totally unrelated to each other in frame of
reference and content. Here is a volume that
should certainly attract the attention, not only
of social and political scientists, but also of
other individuals more directly concerned with
national political and foreign policy making.

Cuartes H. Coates

University of Maryland

i
|

olitical Justice: The Use of Legal Procedure
for Political Ends. By Orto Kircnuemer.
Princeton, N.

Pri iversity Press,
1961, ix, 452 pp

Students of the sociology of law will welcome
this volume, A central question in this field,
as put forth by Weber, is the manner in which
authority is made legitimate. Political Justice
grows out of Tocqueville's shrewd observation
that “Zt is a strange thing what authority the
opinion of mankind generally grants to the
intervention of courts. It clings even to the
mete appearance of justice long after the, sub-
stance has evaporated; it lends bodily form
to the shadow of the law.” Hence, the subject
matter of this book is the manipulation of the
symbols of justice to achieve the ends of politi-
cal goals, vy

In scholarly and learned fashion, Kirchhelmer
details a number of political trials as well as
broader policies for utilizing legal machinery
to put down dissident and opposing groups,
He also examines the pressures structured into
the legal system that fall upon judge, prosecu-
tor, defendant, 'and lawyer in the political trial,
and the limits of choice and opportunity open
to these dramatis personae, All in all, it is a
commendable book.

I have two reservations—one procedural and
one substantive, te

The book is not as systematic as it ought
to have been, There is an interesting conceptual
framework in the first chapter (based largely
upon the ideas of Weber who, incidentally, is
not cited), but the materials which follow rarely
refer back to it explicitly. Consequently, one
sometimes finds oneself lost in a maze of detail
without being able to discern a conceptual
referent,

The substantive criticism is as follows: Al-
though the author sets out, as one of his cate-
gories of political trial, the “derivative...
where the weapons of defamation, perjury, and
contempt are manipulated in an effort to bring
disrepute upon a political foe,” he fails to cite

ah hy

724

Riesman’s brilliant article (42 Columbia Law
Review 1085) on the use of libel and libel law
as a major political weapon, Thus, the Nazis
turned the law of defamation on its head by
publicly calling their Gentile enemies Jews.
‘These opponents were then faced with an im-
possible dilemma: Either they sued for defa-
mation, in which case they would be forced
publicly to claim that “Jew” was a term of
opprobrium; or if they did not sue, their re-

BOOK

Cities and Churches: Readings on the Urban
Church, Edited by Rozert Lex, Foreword by
Joun C, Bennerr. Philadelphia, Pa,:, West-
minster Press, 1962. 366 pp. $3.50,

For over a generation Protestant churchmen
have been studying the impact of urbanization
on their historically rural and small-town re-
ligious tradition, The present volume is a col-
lection of essays dealing with the problems that
urbanism has posed for the churches and the
ways in which these problems have been or
might be met, Aside from three classic readings
on the sociology of the city by Wirth, Simmel,
and Park and a few empirical reports by con-
temporary sociologists, all the selections are
by churchmen writing from a specifically re-
ligious perspective. Most of these selections
manifest a concern with developing an effective
Christian witness and sense of community within
the urban environment, and especially within
the “inner-city” areas where old-line Protes-
tantism has never been very successful, This
is a well-selected group of essays that is likely
to appeal more to Protestant clergy and semi-
narians than to academic sociologists,

BENTON JOHNSON

University of Oregon “

The Sociology of Education: A Sourcebook.
Edited by Rozerr R, Brtt, Dorsey Series in
Anthropology and Sociology, Homewood, Il.:
Dorsey Press, 1962, viii, 368 pp. $6.50,

This is a compilation of twenty-six papers
organized in five parts, The editor provides
an organizing framework for each part-in an
introductory statement. The five titles give
some indication of the content: Social Change
and Education; Non-formal Learning Situa-
tions; Social Class; The School as a Social Sys-
tem; and The Teacher, All but a few of the
articles are by sociologists and all contribute
to a sociological analysis of the educational
institutions,

AMERICAN SOCIOLOGICAL REVIEW

ligious identity might be in doubt, an unhappy
situation in the Germany of the Thirties,

Whatever criticisms the book may merit, it
breaks some new ground in a significant area,
namely, the symbolic import of the semblance
of a rule of law, even, and indeed especially,
when substantive goals are being interfered with
by formal procedure.

Jerome H, Skoinick, -
University of California, Berkeley

NOTES

The editor chose to include a relatively small
number of complete selections rather than
portions of a larger number, This limits the
range of selections and may reduce its useful-
ness to some potential users. Sociologists who
have followed the sociology of education litera-
ture will be acquainted with nearly all the se-
lections, Others who are looking for a source-
book in the field will find significant sociology
of education material in this volume, The editor
made no attempt to provide either a complete
survey of the field or selections bearing on all
phases of the literature, Rather, the choice of
articles is based on his “own reading knowledge
and experience in teaching a course in the soci-
ology of education.”

Some may use this volume as a text, but the
limited scope and inadequate coverage of many
areas would necessitate extensive supplementa-
tion, It will be useful as a supplement to texts
in the field, but some will not find significant
contributions they would have selected,

‘ Wripur BrooKover

Michigan State University

‘ i :

Readings in Sociology: Sources and Comment.
Edited by Joun, F. Cuper and Prcoy. B.
Harrorr, New , York: Appelton-Century-
Crofts, 1962. xiii, 337 pp. $1.95, paper,

‘The reason given: by the authors for adding
this book of readings to the growing list of
such publications is the need for a “book of
readings which would supplement any of the
currently used textbooks and still hold total
cost to a reasonable level.” These goals are
met reasonably well, The book, in addition to
being relatively inexpensive and conveniently
compact, does contain a large number of read-
ings, forty-eight ‘in all, The selections, them-
selves, vary widely in content; there is some-
thing for everyone, What emphasis is found
in these selections would be on the kind of
insights and challenging ideas which might
appeal mainly to those who, along with Robert

$,. anc security police? To what degree can political justice enable’
8 marshal“ public opinion ‘to its ideolo.y an

and dispose of its enemies?’ How’ do clemency and asylum. mitigate’
consequences. of political justice? :. Finally, in“ what circumstances, if any,”
litical goals be justified in normative terms? *

A basic ‘question is whether political’ trials can’ be Gistinguished from the
sual. run.of judicial business’: Do not all questions of tort and contract, not to .
tion constitutional Jaw and labor tely involve adjustme: between’
ymptting. social and économic. forces, ‘and are not such’ adjustaients what
litics, is all about?’ Kirchheimer | handles this Lier skillfully. . Recognizing

ict’ and those cases in whic Iudclary i called Upon to exert immediate

j power, In tuch, cases, the. trial serv
litical Group. Ta elucidate;
erjury:. trial begin
1g On: stat made. bef
vities} betweenia.hotnicide. trial of a,
: 1 for the rnurder, after a hotly ‘Contested. |
“candidate ‘for Goveinge, of Kentucky; and. between, a. trial; for
a conspiracy toi advocate the overthrow

‘governments: arise?
hen a regime turns to the courts for assistanbe in repressing” hostile’ political |
: yl

hy ‘compirative rental |
eats a}

to

the Communist pte France and Italy resisted this 1 ‘temptation byt discriminated
against the: Party in the: administration of election’“laws “and: "within ‘the:
parliamentary system. Great: Britain and- the Scandinavian countries’ resorted
to neither of these forms of repression, but consistently adhered toa “policy of
equal treatment” for all political groups. ane het
~ Kirchheimer valiantly’ attempts to derive the causes for these disparitiés of
policy. As One might expect, they’ are complex. A nation’s cultural’ traditions‘
and transitory leadership both play a part, But hard pdlitical facts’ more ofteri
lie at the root, including the strength of the Party within each Western countiy’
*: and the likely reaction of the mass of people to different pélicies. Operi tepres.
. sion must risk, apart from the “uncertainties ‘of trial, the revulsion of ‘formier |
« friends from a pattern of persecution, the auartyrdom of victinis, atid the cons.
sequences of driving opposition underground. ' Displaying erudition “and. a
shrewd political sense, Kirchheimer’ provides “telling” insights into ‘the’ ‘manipula:
tion of means to cope with ‘domestic movements, believéd a thréat to" stability,
Tt is not to detract from these ‘insights that this” ‘reviewer suggests “that nieithér’
history nor what we have been able to lear of the nature’ of rian supports”

«The: book. is “designed to’ expose! the; underlying mechanisms of. politi
trials by: relating. their political content, to the, Jaelieet: form in’ which cases,
take place, pee Z
-rofessor Kirchhe! €3 a native of, Genny and, now a professor of avers
at, Columbia University, has lavished comprehensive and painstaking re-.
search on his subject. in the. tradition of good European, scholarship. He has
capitalized on most, of. the: opportunities. presented. by. the vast field he surv
_., Although, the book is flawed by meandering and by a heaviness of language,
strikes this reviewer as a-highly valuable contribution.

“~The ambitiousness of the project is easily appreciated by it its range of. problems’ oe
When will a regime find it necessary, possible, or convenient to resort to the,
judicial process for political ends? How. do the actors in, political, trials -
judge, jury, prosecution and defense counsel —- respond to their new, roles

they are willy-nilly thrust in, the, spotlight of conflict, for political advantage. an
power? What part is plered by the supporting cast of formers, salahoretarey

tries the judge acts within a narrow compass when the enemy of the state, sits
are open fal

he dock: and the engines _ producing

rottle,

“That “judicial ‘pace! is sopaprcaad in the United

anyone rahe inspects the ‘opinions of the Supreme’ G

ple, the convictions of Eugene Debs and Benjamin’ Sitlow,

and , of Bugene Dennis and’ Junius Scales a generation: fater.43“Thal FoMe,

however; “perhaps. more than’ commonly: recogni
uisitorial’ ‘Tiéense’of' legislative’

individuals’ of citjze ips
Concept’ of |

‘the aeeonl eonchialn that il rec dem

mass movements fer

x exactly such repreaion has taken Pl
movements” still remains, mostly, a dream,
the long: run,
feet ardor with which guch repression
«Since finally the trial’s the thing, it is to At thal Mu)

In’ ‘such oP gst drama ng: ecnmegr is immune, f swe bi

Ward a polars od St sonia sel
space, s Politicians because’ tt ey kni

society’ ddes! trust’ jis’ fidied
‘alee issues’ cere becaise we ate ‘from th e'start that courts."
confine their speculation to a relatively narrow sig of f value. alternatives,

with, the secure. bares regime:

eternal: pi x

freedom when: they’ are’ reasonably Z
it in conformity with certain basic norms: in pees ors
receiving freedom, are already unfree in the sense, of hay
by common habit, custom, and ideology.®.

political ju 1 aeceptable? Kircbhelme ariduces possi
ton: Q) poli ical” justice may. be haimles ; ‘when the uurpo
bolster the public image of a regime or to” put ‘an official ‘stamp yon the alread
“achieved defeat ofa political opposition, or (2) the alternative to political justic
may be worse, as when a regime would, act mare, arily and perhap
violently if it had no recourse to the Courts. :
“" “But these justifications ‘will not wash, For political justice ‘can, never”

harmless when the result is to send a man to jail” or, when. the ‘merits ‘q

orca

3.:- Debs v. United States, 249 «US, QU (1919), Gitlow wi New. York, 268 Us, 65

(1925). [ane
dat Us. 494 (19915) sine 4 4 Unliea Es

oa ii
ait ie ‘ee ently, yeill
fox veervices, rendered to a. dren oe =e

ly involves an estimate of the | uurposes and stren| Zio
against ee power and en eo the hoslas co ae
Us becomes, in the words of the Tate Justice Jackson,
-guise of a legal decision.”2 ‘
The degree to which the judge has authentic intellectu:
ching a decision will vary, of course, with political condit
ve to destroy what Kirchheimer calls “judicial “space” :
result in. political’ ‘trials, “Such uncertainty was completely ‘wipe

vhow-trials of. Hitler’s Germany and. Stalin’s Sovict Union, ‘where. the’ judge :
acted, prs as the polis agent of the regime. But even in democrats fon

4. Dennis v. United States, 7
203 (1961).
5. Watkins v. United States, oot US,. 178 (1987),

UB. 234 (1957). : ;
6. Rowoldt v. Perfetto, 355 U.S. 118 (1987). But tee 1

US, 580 (1952), Galvan, v, Press, 347 US, 525 (t (944).

pt ipod rea of counsel for Smith Act aplee sr antes Ve Al

fe Bar, 347 U.S, 388 (1954) (permanent disbarment yet ‘aside. as. -fo9- weve yy" Yo i a f MES bo tenor ‘

gr dubarsed fa New Jentey), In re Iserman, 345. U.S.. 286 pias (disbarment earanes “ 7.” Kent v. Dulles, 357 U.S, 116 (1958), ¥ tape vi Dulles, |

by, Supreine Court, by evenly divided Court), sot aside : Nowak. United States, 356 U.S, 660 (1958), Malseober 9
670_(1958) y a

71 Yaue Law Jouanar i364; 1968 (1962):

See aibovta re Sawyer, 360 U.S, 622 oS : ) :
: eer. <9, Starzinger (Book Review),

a particular government are sold to the citizenry like a cake ot soap or a compact
far,.The second justification is not capable of proof *. cause <Lere is no valid
y of estimating a regime’s response to political opposition
portunity to implicate the judiciary.” Indeed, the trappings of legality may

tical_ends,
‘A. response must joitially draw the line

stem, (that is] majority,
juding the right to turn into a majority.” (p. 169) Koders premise, er
» fs that if a minority is: ‘disposed, to act, through force rather. than, ballot
tt be time enough to thwart such action when it occurs; in the meantim
political process should ‘be open'to all poinis of view, and let the chips’ fall
hey: may. The alternative. coutse of proceeding against a conspiracy
re it acts violently not" only’ imposes’ intolerable Burdens” on the Judicial
tem, hut also opens the door to elimination of political enemies through the
nicnt self-delusion that force is inevitable and imminent,. -...
“i But will there be time for successful defense ‘when the enemy fi finally:
The answer to this highly practical question may not be the same for all’ govern.
ents and for all times. The period since World War II provides material for
‘arguments on both sides. The coup d’etat in’ Czechoslovakia may be thought
illustrate the perils of leaving jail cells empty for too long. On the other hand,
i. observer Of the American scene can conclude that there has been insufficient
isk of: violent overthrow of government to justify the political trials under the
ith Act and the McCarran Act.
irchheimer’ believes that. when a regime resorts to the courts for, political —
s it.is responding to the ‘twin spurs of fear and self-doubt. The dedication
f. the pi ent volume to. “the past, present and future victims of political Justice”
aggests thé.author’s conviction that these motivations will continue to induce
governments to, contain’ domestic enemics with the aid of the courts. Those
levoted to freedom will join’ Kirchheimer in regretting this, while recognizing
at. the same timeyhat’ the, Bune: is many-sided and subtle and that the
absolute undestrability, n

Ma td