1364 THE YALE LAW JOURNAL (Vol.

71 :1351

POLITICAL JUSTICE: THE USE or LEGAL PROCEDURE FOR POLITICAL ENDS. By

Otto Kirchheimer.* Princeton, N.J.: Princeton University Press, 1961. Pp.
xiv, 452. $8.50.
PROFESSOR 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 uncertainty 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 "politicaI 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.
1. P. 419.
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 the 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." 2
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."3 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 book 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

2. P. 172.
3. P. 266.
1366 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 Structure. 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 be-
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 be relaxed-and a referee
allowed to mark points for both sides." 4 This may indeed prove to be an ac-
4. P. 299.
1962] REV71EWS 1367

curate prophecy, but one wonders exactly what it means 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 outrageous. 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." 5 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-
gestion 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 6 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. BLAcK, THE PEOPLE AND THE COURT (1960).
1368 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.''7 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 unfree 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 unfreedom.
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 basic
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 latter

7. P. 233.
19621 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
K'irchheimer 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. STARZINGERjt

ANCIENT ROMAN STATUTES. A translation with Introduction, Commentary,

Glossary and Index. By Allan Chester Johnson,' Paul Robinson Coleman-
Norton,2 Frank Card Bourne.3 General Editor, Clyde Pharr. 4 Austin: Uni-
versity of Texas Press, 1961. Pp. xxxi, 290. $15.00.
THIS 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.5 The
editors report progress with Justinian's Corpus Juris Cizilis. 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 lex in the Glossary.6 But likewise
there are many documents of a judicial and administrative nature which are
very far from legislative in character.7 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 law 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 lex
tAssistant Professor, Department of Government, Dartmouth College.
1. Late, West Professor of Classics, Princeton University.
2. Kennedy Associate Professor of Latin, Princeton University.
3. Associate Professor of Classics, Princeton University.
4. Research Professor of Classical Languages, University of Texas.
5. THEODOSIAN CODE (Pharr ed. 1952).
6. P. 267.
7. E.g., p. 124, Doc. 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.