Lawyering Under 20th Century Authoritarianism

We often imagine authoritarianism as the abandonment of law, a moment of rupture when constitutions are torn up and courts are shut down. But some of history’s most effective assaults on democracy have worked through law rather than against it. In this episode, host Madhav Khosla is joined by David Dyzenhaus, professor of law and philosophy at the University of Toronto, and Jan-Werner Müller, professor of politics at Princeton University, to examine how repressive regimes from Nazi Germany to apartheid South Africa governed through lawyers, courts, and legal theory, and how those 20th-century cases illuminate the present. Drawing on the dilemmas faced by human rights lawyers under unjust regimes, they discuss the role of the legal profession, why aspiring autocrats attack lawyers and other professions, what it means when professional identity collapses into political loyalty, and whether lawyers who stay inside a compromised system are preserving the rule of law or merely lending it legitimacy.

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Transcript

SPEAKER_00 0:04

I don't really see any new theories around. Rather, I see the revival of old theories.

SPEAKER_01 0:12

In the 20th century, regimes were on the whole much less reluctant to deploy outright violence. They didn't worry so much about being seen as openly repressive. Whereas in the 21st century, there was much more of an attempt to basically try to convince both domestic but especially international audiences that one still had the rule of law, that one still had democracy.

SPEAKER_02 0:55

I'm Martha Kosler. I'm the Knight Institute's Senior Fellow and a professor at Columbia Law School. My co-host, Katie Glenn Bass, is away this week. Joining me today are two guests, David Eisenhower and Jan Werner Mueller. David is a professor of law and philosophy at the University of Toronto and a leading scholar of legal and political theory, constitutionalism, the rule of law, and the legal challenges posed by states of emergency. Jan is a professor of politics at Princeton University whose research examines democracy, constitutionalism, and the history and theory of populism. I'm having both scholars on the podcast to talk about the history of 20th century authoritarianism and what that can teach us about the challenges facing democracies today. David and Jan, welcome to Lawyering Without Law. Thanks for having us.

SPEAKER_00 1:46

Yes, thank you very much.

SPEAKER_02 1:55

Today in the United States, but also elsewhere, we are seeing new legal theories emerge that change the liberal democratic constitutional model that has, in some sense, defined the post-war era. I thought we might step back and focus on history for a moment. Two paradigmatic, if rather different, authoritarian regimes of the 20th century are Nazi Germany and apartheid South Africa. One feature of these regimes is that they did not simply abandon law, but in fact used lawyers, courts, legislation, and legal theory to govern. Jan, I was wondering if we could start off with you and just to explore what these cases might teach us about the difference between the rule of law and the rule by law.

SPEAKER_01 2:43

I think I'd like to defer to David on South Africa, but as a more general point that might frame our discussion, I think it's worth pointing to a book that came out about four years ago that I think remains a very important contribution to understand the differences between 20th century authoritarianism, broadly speaking, and what we are seeing today. The book I'm referring to is by our colleagues Guriev and Treismann. It's called Spin Dictators. It proves with plenty of empirical evidence that what they call fear dictatorships in the 20th century was rather different from what they call indeed spin dictatorships in the twenty first century. Both, to be sure, used law. There was no regime that somehow, you know, was able to transcend law altogether. But according to them, the major difference is that in the 20th century, regimes were on the whole much less reluctant to deploy outright violence. They didn't worry so much about being seen as openly repressive, whereas in the twenty first century there was much more of an attempt to basically try to convince both domestic but especially international audiences that one still had the rule of law, that one still had democracy. And I think we all know prime examples of this in our day. Viktor Orban spent an inordinate amount of time and resources in trying to fool the European Commission and plenty of other international audiences into thinking that yes, Hungary still had the rule of law. You know, the concept of autocratic legalism has become very popular in terms of trying to capture this particular phenomenon where you seemingly observe procedures correctly, where you also move very slowly in many cases, where it simply doesn't look like you are doing something that is so authoritarian. Now, to be sure, authoritarian regimes today still, so to speak, hold violence in reserve. Putin, who for a long time wanted to be seen as a Democrat, of course, after 2022, dropped all pretenses, was done with a facade, became outright repressive. So we shouldn't, you know, be starry-eyed about what's happening today. But again, what Guriev and Treisman show is that there is a real difference. And that also means, I think, by implication, that law probably plays more of a role today, that it's more important for these regimes to be very careful in terms of how they devise and how they implement various forms of autocratic legalism.

SPEAKER_02 5:07

Terrific. Thanks so much. David, could you tell us a bit about South Africa and how we should think about it in this context?

SPEAKER_00 5:13

Well, even though I should uh defer to Jan about Nazi Germany, I'm going to start not with South Africa, but with Nazi Germany and with a book that I think uh we all know well, and that's Ernst Frankel's The Jewel State. So Frankel, in his book The Jewel State, which has come back into vogue as a providing a set of tools that one might be able to analyze present-day developments with, argues that the Nazi state has to be understood as having two states side by side. On the one side is the normative state, which is a state that was still governed by law in some sense, the law that remained from the Weimar period, also Nazi law that still worked through ordinary legal mechanisms. But on the other side was the prerogative state. And in the prerogative state, Nazi officials just did what they pleased in order to serve the interests of the party. And what's more, officials from the prerogative side could intervene at any moment in the normative side and do as they pleased. And I think what one sees there in Nazi Germany, if Frankel's analysis is by and large correct, is that law still operates, but it operates side by side with a regime that can use violence at will. I think that South Africa during the apartheid era presents an interesting transitional case. The apartheid government proudly proclaimed, both domestically and internationally, that it was on the side of the rule of law. And I think these proclamations were by and large sincere. So it did seek to govern through law. But the way that it governed often was to give vast discretionary powers to officials in order to do as the apartheid government wanted. And I think one sees the same phenomenon today in the autocratic regimes of the present. And so there may not be actually such a sharp qualitative difference, I think, between the kind of legal government that one observes in the 30s and legal government today.

SPEAKER_02 7:13

David, to stay with you and just to pivot slightly to today, your forthcoming book, The War Against Law, engages with a new sort of legal theory that has emerged, the most prominent articulation of which has come from Adrian Vermule, and namely common good constitutionalism. Could you perhaps tell us a little bit about what you think a good working definition might be of the theory?

SPEAKER_00 7:39

Let me start by disputing something that you said right at the very beginning, Madav, when you, I think, spoke about new theories emerging. I don't uh really see any new theories around. Rather, I see the uh revival of old theories. And if one looks to theories that were put forward in the late 1920s in Weimar and then in the 1930s by people like Carl Schmidt and Eric Vergelen, I think what one sees with Vermule and also with his counterparts in the United Kingdom is a revival of a certain understanding of political community that requires a law as an instrument. But there's nothing really new in these theories. Jan wrote a really excellent article some time ago about common good constitutionalism. And the title, I think, is Rule of Law, Rule by Law, or Something Else Entirely with a question mark. And he doesn't answer the question explicitly whether what's happening with common good constitutionalism, whether it is something else entirely. But I think implied in the argument is that it probably is something else entirely. So what is the something else entirely? It's the rule of principles that are somehow revealed to an elite and then imposed on the population. And I think this is an anti-constitutional and in a real way anti-legal idea of political community.

SPEAKER_02 9:08

And Jan, just to perhaps push you maybe to answer the question, Mark, to stay with David's point that in Nazi Germany, figures like Schmidt attack liberal legality as unable to defend the political community. How do you compare the structure of that argument with common good constitutionalism's critique of liberal constitutionalism, rights, and even judicial constraint?

SPEAKER_01 9:34

Allow me to say two things. One is a probably superfluous pedantic remark, which is really about how we think about the relationship between particular legal theories and then larger visions of politics. I think many people might remember that after the Second World War, there was a very strong tendency essentially to blame legal positivism for the demise of Weimar and to say that, you know, this had left the Republic defenseless, this was, you know, agnostic, neutral, and something else was needed. And it took a while for people to realize that actually this wasn't really entirely accurate. Just to name the most obvious example of a great positivist who had actually also contributed a great democratic theory in defense of the republic, just think back to Hans Kelsen as somebody who clearly had actually offered a whole range of reasons why, you know, republics need to be defended. Although to be sure, in his writings on so-called militant democracy, he also came up very clearly in saying that, look, if a majority wants to be done with democracy, you have to go down with a ship. And then, you know, you can't really appeal to values that transcend anything in terms of trying to save the polity. Except, footnote to the footnote, if I may, I think historically there's really no such case. There is no such case of a people in a free and fair election in and with a majority say we want to be done. And then sort of the Kelson problem really arises. And a footnote, um, it was only then also that people realized that actually some of those who'd undermined the Republic were the antipositivists. Schmidt foremost among them, but he wasn't the only one. So I think we always need to be careful in terms of short-circuiting sort of a particular legal approach or legal philosophy with then particular political or political standpoints. Now to finally, secondly, answer your question, I would just echo David in in saying that yes, there's a lot of fancy footwork in terms of Adrian Vermule trying to recover various theories, appealing to you know what he takes to be long-standing classical traditions. But ultimately, when everything is said and done, what is being justified is an extraordinary concentration of power. And even in moments when it seems like something else is being suggested, example, the idea of subsidiarity, which comes out of Catholic thinkings about the polity, where you basically say, you know, certain problems, policy challenges should be dealt with at the appropriate, you know, decentralized local level. You shouldn't automatically centralize power. Even there, there's immediately a kind of caveat that says, but it's also okay, if necessary, to completely centralize power. So to put it bluntly, what you initially might feel you're getting is a lot of Thomas Aquinas, is a lot of Roman law and so on, but you scratch the surface. And then ultimately there's a particular version of Karl Schmidt that remains. And that ends up justifying, as David was saying, basically enormous amount of discretion for an elite, which, you know, of course we'll say that it acts, you know, for the sake of the common good and does good things for the people and so on, uh, like everybody does, but where there are no meaningful constraints anymore.

SPEAKER_02 12:51

I think that that's right in that for liberals, common good constitutionalism quite clearly seems to concentrate too much power. And in some ways, it gives officials too much discretion to define the common good. But what's interesting is that scholars of common good constitutionalism present themselves self-consciously as anti-liberal, but they don't present themselves as anti-legal. And do you think that there's some way in which we can sort of pass that distinction? Is it meaningful? Is it simply artificial?

SPEAKER_01 13:25

Well, I would gently, politely ask what it would even mean to be anti-legal. Very few people at law schools, as far as I'm aware, go around and say I'm all out anti-legal. So of course they make arguments which, as uh already hinted at, deploy certain conceptual resources, seemingly draw on established traditions, try to employ certain methods, you know, as you as you know, where Mule basically is very keen to say, look, you know, don't panic. I'm actually using a lot of dwarf in here as well. This is somebody you know, this is gonna be okay. But none of that really settles the debate in terms of whether anything that we would want to see as the rule of law, which I think is not a uniquely liberal preoccupation. I mean, it goes back a little bit to what David was talking about initially when he described the dual state in terms of saying, look, are there going to be moments where essentially we are dealing with impunity because there's not going to be any recourse anymore? That's, you know, not as any uniquely kind of liberal worry to have. And I think you could say all this without being, you know, starry-eyed, naive about the rule of law and all its clearly all its deficiencies, especially but not only in the United States, it remains a legitimate demand to say, well, empowering people to act without meaningful constraints sort of has a tendency to go wrong in certain ways.

SPEAKER_02 14:46

David, one of the very significant features in your work is an effort to both carefully distinguish between historical cases and to carefully draw connections. So for instance, you are very careful to distinguish between Schmidt and the political philosopher Eric Vogelin's authoritarianism and outright Nazism. Similarly, I think one of the things that you're trying to do in some of your new work is to connect the UK contemporary debate to apartheid era, war against law, and especially the effort to reshape jurisprudence so that the executive has maximum latitude outside legal controls. Can you say a little bit about how we in this moment should actually look at the 20th century? What's the right level of historical analogy? How do you draw from it? In some ways, part of the struggle actually with invoking Nazi Germany is that it almost puts the bar too high. It almost makes it the case where if you think that, oh, well, that's not happening, things must be all right. And I think, in a way, some of what a lot of people feel and are dealing with is actually what are the examples and what do we learn from them?

SPEAKER_00 15:56

I think uh it's instructive to look at uh Nazi Germany and to read books like Frankel's The Jewel State. But it may be more instructive to look at other states at that time, at uh Italy, at uh the FASA state that uh Dolphus tried to establish in Austria, and also at the state that uh conservatives tried to put in place in the late 20s and early 30s in Germany. It's a mistake, I think, and I've I say this in my book that's about to appear, uh, but I've said it elsewhere, to call Karl Schmidt a Nazi jurist. I don't think that Schmidt was a Nazi. Now, Jan has written the best book that's out there about Schmidt and knows more about him than I do. But uh Schmidt, as I understand him, only joined up with the Nazis for rather craven reasons, and also because I don't think he had any principled objection to what they were doing. But before the Nazi seizure of power, Schmidt was working with the people who were trying to uh crush both the Nazis and the Communist Party. So these were the mostly Catholic aristocrats who staffed the late Weimar cabinets. So they wanted to put in place a form of authoritarian rule that was, I think, probably quite different from uh Nazism. It may not have used prerogative to the same extent. In some ways, I think one can understand Schmidt and perhaps some of the people writing today in the common good constitutionalist camp as disappointed positivists. If you understand positivism as a very crude doctrine that says that what you need to put in place is a very stable regime that can then enact law that has a clear content, which officials can uh just apply without having to rely on their own moral judgment. This is very much the image that dominates Schmidt's first book about uh law, Gesetz unter Urteil. He's a disappointed positivist. How does one get rid of discretion in the law? And I think eventually he comes up with the idea much later that what one needs to put in place is a substantively homogeneous population. And then you can have rule by law, if not the rule of law. So there is this very instrumental idea of law that I think is common to uh these people, but it is somehow an idea that does without the rule of law, which is, I think, the contrast that uh Jan was drawing attention to in this title, uh rule by law, rule of law, or something else entirely.

SPEAKER_02 18:35

That actually is a terrific way to sort of pivot to a slightly different theme that a lot of us have been thinking about. So common good constitutionalism is at least on many of our understandings incompatible with or in some deep tension with the rule of law, if only for the kind of discretion that it gives public officials and elites. Is it also incompatible with actually certain ideas about the legal profession, insofar as it instrumentalizes law in the way that that David described? Jan, I was wondering if you could just come in on just how you think it actually might shape our understanding of professional identity and in fact what it means to be a lawyer in a particular modern society.

SPEAKER_01 19:19

Well, I'm flattered that you would think a non-lawyer would uh be able to hold forth and tell you the ultimate truth about this.

SPEAKER_02 19:25

No, I I actually think the non-lawyer is the best person. The lawyer will just tell us what we want to hear.

SPEAKER_01 19:31

So I would say two things. One is more specific, the other is maybe more general. The first one is that, as we've seen in the United States, I think you know it's possible to exert quite significant pressure on individual lawyers to, you know, go along with one what then might be revealed as you know being very close to or maybe actually being professional misconduct. And maybe that's shocking on an certain level. I'm not saying that's inspired by common good constitutionalism, but I think it's sort of too much of a stretch to say, yes, you have a very powerful executive that seems unconstrained, that is very willing to grab power, that sort of does autocratic legalism on the one side, but that also on many other occasions sort of is basically more like Trump, dare I say, as a business person, let's just do something, let's just create some facts. People probably know it's illegal, but let's see what happens. You know, maybe they're going to settle out of court, maybe somebody does go along. These are two very different modalities. And for the second one, you still, you know, need lawyers who kind of maybe try to make the case, you know, make the uh try to find settlement and so on. So it is astonishing how many people seem to be willing to go along. And then it may well be revealed that if maybe some of them end up being disbarred, that yes, they actually cross the line. But secondly, and maybe less obviously, I think a lot of aspiring autocrats today, more broadly, like to attack professions. Because if you think about the parallel with academia, there's very often a similar suggestion that professionalism to begin with is a kind of sham. That these are people who, yes, are credentialed in a certain way, but ultimately it's a nefarious, self-dealing, self-reproducing liberal elite. And we shouldn't really respect their authority. So if they say something, be it about the law or be it about climate or be it about another topic, we can probably discount it. Or it's probably just a nefarious way of constraining the people who is uniquely represented by the great populist leader and so on. So I think that's somewhat special to our times, maybe, that at least some of these regimes have a more broader attack on professionalism. I think there they can to some degree also actually benefit from very different figures, having sort of paved the way if you think about earlier attacks on universities. Let's just take an example from the UK, Thatcher's attacks on universities. Saying, you know, most of these people probably just sit around all day, drink tea, and spout Trotskyist nonsense and criticize me. Let's make them really work. Let's, you know, assess them all the time. Let's test them. Let's make things more quantitative. I think that's been a more general trend. And this is what this, for shorthand, authoritarian populist attack can also kind of benefit from. That there's already kind of framing that says, oh, there's maybe something problematic about professions. Maybe what they say, the authority they claim on the basis of special kinds of education isn't quite what it claims to be. I think we shouldn't, you know, stretch the point too far. But I would say there is something there that goes beyond lawyers in particular, and that also goes beyond some of the specific attacks on certain professions that we've seen in our day.

SPEAKER_02 22:45

Terrific, Jan. And in a way, I guess you see climate is a great example. And I suppose in the US, another example that is very much in the news today is the medical profession, right? And sort of the attacks on certain forms of like science, basically. And David, just to sort of focus a little bit on the relationship between expertise, knowledge, and the professions, one of the things in your work that's been very significant is that you've thought a lot about the role of judges in apartheid South Africa, in Nazi Germany, and even in contemporary moments post-9-11. And of course, judges are professionals. They're public officials, but they're also professionals and they are lawyers. And I was wondering if in that entire narrative, what account you have of actually the role that lawyers should play and even some of the conflict actually that some lawyers face, which is that participating in the system is itself a form of legitimation. Not participating in the system is a form of exit.

SPEAKER_00 23:49

So let me uh start with an anecdote about the professions. And it goes back to the time of uh Blair joining Bush in uh the war against Iraq. And as many people will remember, at the time uh Blair goes to his attorney general, Lord Goldsmith, and asks him for a legal opinion about whether joining Bush will be legal under international law. And he doesn't get the opinion that he wants from Goldsmith. So he says, go back and try again. And Goldsmith comes up with an opinion which says, well, it's fine for you to uh go to war with Bush because international law sanctions this. And one of the most senior people in his department then uh resigns in a rather infamous affair. This willingness to bend the law, and in a way, I think, uh bend the law out of all recognition in response to uh political demands is, I think, a feature of our current situation. It's interesting when one reads commentary in the US media about US court decisions. Nowadays, journalists will always say whether the judge who decided a matter is a Trump-appointed judge or a Bush-appointed judge or an Obama-appointed judge. And it's always emphasized when a Bush-appointed judge, and even more when it's a Trump-appointed judge, gives a judgment that goes against the wishes of the current administration. Because I think what's been pointed out in this emphasis is that here we have a judge whose sense of professionalism transcends their perhaps political commitments. And what one gets, I think, in the current climate is a collapse of uh professionalism into political commitments. And with that collapse, I think uh the idea of the profession uh goes. One no longer has the idea of people occupying a role. They just become uh kind of the servants of their political masters.

SPEAKER_02 25:50

On that, right, if I may push you ever so slightly, I think implicit in your account is that arguments have a certain integrity to them, or they should have a certain integrity to them. And your forthcoming book has a very sharp title. It's called The War Against Law. And what would we say to those who say that look, actually, what you describe as an argument that undermines the rule of law or unprofessional behavior that instrumentalizes how certain people behave is simply a legitimate conservative legal argument. It's just one that you disagree with.

SPEAKER_00 26:28

Of course, I will uh run into and have run into that accusation. My response to it is that I don't see anything particularly conservative about the arguments that I'm uh trying to rebut in this book. In the book, I make uh the claim, and I think it is a claim that I sustain, that there's something that I call a fake legal argument. And what is a fake legal argument? A fake legal argument, on my account, has two characteristics. On the one hand, it's an argument that's designed to subvert the rule of law. So the end goal is to subvert the rule of law. But it's also the case that using legal arguments to get to this goal displays a certain characteristic which I try to expose in the book. And that is that the arguments are, legally speaking, bad. The lawyers who make them, I think, uh often have to misrepresent the law, make inaccurate statements about the law in order to try to achieve their goal. So I don't think that uh I'm contesting conservative legal positions. I'm contesting right-wing positions that are not really in any way seeking to uphold the law or making sincere arguments about what uh the law requires.

SPEAKER_02 27:49

Jan, in your critique of common good constitutionalism, you explore the project at different levels, at the level of general theory, at the level of institutional design, and at the level of US constitutional argument, and at the level of specific policy positions. And can you tell us just a little bit about what those levels mean and how they actually help us understand the theory and theories like this?

SPEAKER_01 28:12

Allow me to say two things. So one is that in his, to put it mildly, consciously provocative way, Professor Vermule, of course, you know, is making all kinds of remarks about, you know, don't think that democracy is that special and that democracy is not really required by common good constitutionalism, but then sort of takes it back at the same time by saying, well, there still needs to be a channel for meaningful input and feedback by the population, but it doesn't have to look like, you know, what we conventional thinkers that we are, bound to the present as we are, think of as our sort of standard institutions of representative democracy. So there's sort of all this conscious playing with, okay, maybe a different institutional configuration could be perfectly possible. Maybe even as is the case in one of the texts in a very obscure publication, maybe even a sort of fantasy of the good emperor who basically unites with the people against the inevitably nefarious liberal elites who are all corrupt, etc., could be a good solution. So I think on the one hand, it would be too simple to say, oh, this automatically implies what we might think of as authoritarianism on the institutional level. On the other hand, it's pretty clear that Professor Vermule tips his hand and says, Look, you know, I have certain preferences, if you have certain preferences, then actually all these other questions become sort of secondary in a certain way. And again, all our very conventional way of thinking about the dangers of concentrating power, the dangers of giving up entirely on some idea that democracy, you know, of course not in practice, alas, but at least in theory, is the one system that promises citizens that, yeah, they should be treated as free and equal and they should regard each other as free and equal. All that sort of goes by the wayside. But the second thing I wanted to say, as a footnote to what David just said, is that I think it also opens the door, at least according to my impression, you know, the current Supreme Court has often done, which is pretty arbitrary. Consequentialist reasoning, think of something like Trump v. Anderson, or sometimes, you know, just making up, you know, bits of 18th century history because it serves a particular uh agenda or it gets you to the result that you want to get to. And I think, you know, if common good constitutionalism were implemented somehow, we would have a very similar scene in terms of, okay, we'll just sort of grab bits and pieces, we dress it up in the language of common good constitutionalism, and because it's so vague in general, uh, you can always tell a story about how this actually serves justice, abundance, and so on.

SPEAKER_02 30:50

And in that account, I suppose it's also it's also very easy to dress that stuff up around lawyers and for lawyers in some ways actually to sort of construct that kind of illegal political project. Because one feature of being a lawyer is actually the capacity to be able to argue any case. And unlike some of the other professions, lawyers are trained to do that, which is I think partly why one sees in some of these historical examples a genuine role for lawyers in sort of these intellectual movements. I was just wondering when you think about the professions more generally, and you know, one of the things, Jan, that I think people don't really talk about is how one of Hitler's first statutes actually involved regulating the bar and the significance actually for lawyers in that particular story. I was wondering if we could perhaps close by you and David both coming in really on how you drill down on actually what role lawyers have played in this and how that might actually tell us just something about the structure of them as a professional class.

SPEAKER_00 32:01

Let me make an attempt at answering that. And if one goes back to the context where I first started thinking about these issues, and that is apart 8 South Africa, I do think one sees a very interesting role played by lawyers over a long period because apartheid lasted a long time. Initially, very few lawyers who were prepared to take the kind of cases that try to use legal arguments to contest apart eight policy. But these lawyers were able to keep an idea of the rule of law alive that I think provided an important basis for the post-apartheid constitutional order. They maintained a basis for respect for the rule of law that otherwise would have been lost. And the lessons from this period are not confined, of course, to apart eight South Africa. And referring to something you suggested earlier, Madhav, which I forgot to respond to, there's a very interesting Israeli human rights lawyer called Michael Swade, who's written one of the best books, maybe the best book I've ever read, about the dilemmas of lawyering under an unjust regime. Swad does a lot of his work in the occupied territories. And his view, which is inspired by the work of apartheid-era human rights lawyers, is that even when the odds are really stacked against one, one should use the law to contest the law because this is important for the regime that will hopefully replace the unjust regime that presently governs. And he recognizes fully, and I think that South African human rights lawyers recognize this as well, that through their participation they do uh legitimize the regime. So that's a cost that they have to think is worth bearing. I don't think that the situation is as dire in the United States now, and certainly not in the United Kingdom at present. But if one looks at work by lawyers who think about these issues in the United States, and probably most prominent here is the Georgetown law professor David Luban, one could see the same kind of dilemmas arising for lawyers, especially lawyers who stay on in the administration. So I'm sure that there are lawyers now in the US Department of Justice who are still wedded to an idea of the rule of law and are thinking to themselves, can we maintain that ideal of the rule of law under the conditions under which we presently work? So they are facing dilemmas that I think are uh not all that different from the dilemmas that lawyers faced in apartheid South Africa or that lawyers face in Israel and the occupied territories.

SPEAKER_02 34:41

David, before I turn to Jan, just if I could just follow up on one thing that you said, do you have an account for what actually facilitated the internal cohesion within the legal profession during apartheid South Africa? Because if actually lawyers were wedded to a certain notion of the rule of law and of their role within the legal profession, what sort of enabled that kind of internal ethic?

SPEAKER_00 35:08

I think what enables it is that uh I think intrinsic to the rule of law is an ideal of equality before the law. And this ideal can be very formal. But as long as that's preserved, I do think that lawyers will find within the law of their legal order resources which they can use to contest unjust laws, to contest oppression, to try to rein in discretion when uh too much discretion is given to officials to uh implement unjust policies. So there is something intrinsically worthwhile, I think, to uh the rule of law. And what one has to contest is the sometimes quite subtle and nuanced ways in which that ideal is being undermined these days by lawyers who use what looked like legal arguments to undermine the ideal. Jan.

SPEAKER_01 35:59

At the risk of simplifying radically, I think maybe one can distinguish two scenarios. One is, again, maybe somewhat more quote-unquote traditional authoritarian regimes, where, at least in theory, there might be somewhat more of a space to do what David just talked about, in terms of staying within the system and trying to use the normative resources that law provides in order to call it what you wish, prevent the worse, save what can still be saved, but always against the background of a regime that perhaps might be primarily invested in projecting a certain image of stability in the way that many traditional authoritarian regimes did, in also keeping up appearances vis-a-vis the outside world. Again, it will be up to people's individual conscience when they find that, okay, but there's still now a red line which I can't cross and where I have to leave or do something different. As opposed to second scenario, where you see a much more radical approach. And since, you know, for better or for worse, we have occasionally been touching on Nazi Germany, one of the things that one could clearly see also was a sort of internal process of radicalization there. That all of a sudden, you know, someone like Schmidt, who'd been very willing to go along with justifying a lot of what Hitler was doing in the 1930s, sees himself outflanked by especially younger figures who say, well, this is still too beholden to notions of the state. And the state, you know, is still too much of a liberal concept for us, and it's still too closely wedded to the rule of law. We need something like, for shorthand, a sort of total biologization, total racialization of the social, a completely folk-centered idea of, you know, the polity that dispenses with anything that could still smack off liberal legality. So I think one needs to bear in mind that some of these regimes might have a sort of inbuilt process of radicalization, which cannot really be contained and where, you know, one simply ends up providing a facade for a while and then is being outflanked by people who are willing to go much further because the regime sees itself in many ways as unconstrained. And as David was saying, the situation in the United States now is complicated. Clearly, a lot of lawyers have left the administration saying that we just can't do this. Plenty of lawyers are heroically fighting back against the administration. But it's also clear that, at least for some in the administration, there seem to be no real constraints and no real incentive to keep up facades. And of course, at the risk of saying the obvious, that might partly be because in the background there is a very clear promise of impunity, because the president has said, I'll be pardoning a lot of people. So why would you feel constrained? Why wouldn't you simply say, I go all the way, and I'm not concerned about keeping up appearances, and I'm not even maybe concerned about post-Trump life in the profession or beyond the profession for that matter.

SPEAKER_02 39:01

And in a way, I suppose both January 6th and the subsequent events, as well as the role that now politics plays in prosecutions, only furthers and confirms that point. Jan and David, it's it's been such a pleasure to have both of you, and we're so grateful. Each of your work is unique in some sense because it's inescapable for understanding the relationship between law and power in both this century and in the previous one. And thank you so much for joining us.

SPEAKER_00 39:30

Thank you very much, Mada, for having us.

SPEAKER_01 39:31

Thank you very much indeed for having us.

SPEAKER_02 39:49

Join us next time for our sixth and final episode, featuring a discussion on international law, accountability, and the future with Tom Dadenbaum and Asla Bali. Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote. Fact-checking by Harriet Engelkey and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jave Olmar. Thanks to Jan Werner Mueller and David Eisenhower who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We'd love to know what you think. To learn more about the Knight Institute, visit our website knightcolumbia.org. That's KnightwithAK, and follow us on social media.