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Neo-fascist legal theory on trial : an interpretation of Carl Schmitt's defence at Nuremberg from the perspective of Franz Neumann's critical theory of law

Salter, Michael (1999) Neo-fascist legal theory on trial : an interpretation of Carl Schmitt's defence at Nuremberg from the perspective of Franz Neumann's critical theory of law. Res Publica, 5 (2). pp. 161-193. ISSN 1356-4765

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Abstract

This article addresses, from a Frankfurt School perspective on law identified with Franz Neumann and more recently Habermas, the attack upon the principles of war criminality formulated at the Nuremberg trials by the increasingly influential legal and political theory of Carl Schmitt. It also considers the contradictions within certain of the defence arguments that Schmitt himself resorted to when interrogated as a possible war crimes defendant at Nuremberg. The overall argument is that a distinctly internal, or “immanent”, form of critique is required of Schmitt's position, in which its is found wanting even on its own terms. In principle, the application of this dialectical mode of critique can allow a genuine debate to emerge between those seeking to continue both the Schmittian and critical theory traditions, whilst safeguarding the latter from the dangers of formulating polemical interventions that are, in effect, counterproductive to their own intentions.

Item Type: Article
Journal or Publication Title: Res Publica
Uncontrolled Keywords: Carl Schmitt - war crimes - Nuremberg principles - incitement to genocide - OSS - Franz Neumann - legal theory of the Frankfurt School - immanent modes of critique
Subjects: K Law > K Law (General)
Departments: Faculty of Arts & Social Sciences > Law School
ID Code: 22970
Deposited By: Mrs Karen Gerrard
Deposited On: 14 Jan 2009 15:09
Refereed?: No
Published?: Published
Last Modified: 26 Jul 2012 16:08
Identification Number:
URI: http://eprints.lancs.ac.uk/id/eprint/22970

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