Otto Kirchheimer

Kirchheimer reached the Institute with political and legal questions already formed in Weimar Germany. From 1924 to 1928 he studied philosophy, history, law and social science. Among his teachers were Max Scheler, Hermann Heller and Carl Schmitt. He completed a 1928 doctorate under Schmitt on socialist and Bolshevik theories of the state. Wiggershaus places him in the Young Socialist wing of the Social Democratic Party, more skeptical than Neumann of the party's confidence in constitutional reform.^[2] (pp. 230–231)

Wiggershaus describes a radical starting point in the 1928 thesis. In his account, Kirchheimer admired the Bolsheviks' willingness to wage an all-out class struggle and treated class as the decisive power. He used Schmitt's ideas about sovereignty and the enemy to contrast that position with Social Democratic confidence in parliament and the Constitution. This is the historian's reading of the early thesis, whose argument went beyond a neutral study of rival legal systems.^[2] (pp. 230–231)

His disagreement with Neumann concerned how socialist change could be achieved. Neumann hoped to use the Weimar Constitution's social provisions. Kirchheimer asked whether its protection of property allowed judges and owners to obstruct those purposes. His 1930 Limits of Expropriation examined the problem through actual disputes over property and compensation. If every restriction on an owner's advantage became an expropriation requiring compensation, ordinary public regulation could become difficult or prohibitively costly. Constitutional language that promised social change could then protect the existing distribution of power.^[4] (pp. 85–86, 125–129)

This was a reason to study law through its social uses. It did not follow that a student's politics were identical with his teacher's. In their 1933 critique of Schmitt, Kirchheimer and Nathan Leites challenged the claim that democracy required a society without deep divisions. They connected democratic procedures to freedom and equality and argued that concentrating representation in a single leader reduced political freedom. The coauthored argument differs from the earlier admiration for Bolshevik struggle described by Wiggershaus. It shows a developing position, without establishing a complete or sudden conversion.^[4] (pp. 149–152, 174–178)

Kirchheimer's early socialist criticism thus raised a question that remained important in exile: who had the power to make a legal right effective? His writing did not offer a single unchanging answer. The party connection, the critique of property and the dispute with Schmitt identify different parts of his development; none supplies an exact moment when he first adopted Marxist ideas.^[2] (pp. 230–232); ^[4]

In “Changes in the Structure of Political Compromise ^[3],” Kirchheimer asked who could bargain over the main political decisions. Parliamentary representatives once made working agreements among themselves and with government. As large organizations grew, bargaining increasingly took place among groups representing capital and labor.^[3] (pp. 264–273)

The word compromise could hide very different conditions. Under democracy, workers could act through independent organizations. Under fascism, those organizations had been destroyed. Bargaining continued, but the participants were ruling groups, while most people lost an independent voice. A settlement reached under those conditions could not be understood as a free agreement among equal citizens.^[3] (pp. 273–289)

Kirchheimer examined the Nazi party's relation to business, the military and state officials. He argued that these groups did not merge into a single body without competing interests. Leaders settled disputes, and expansion abroad gave the groups opportunities to gain resources without forcing every dispute to a direct confrontation at home. This was his explanation of how the ruling arrangement could work, not a description of a harmonious national community.^[3] (pp. 282–289)

The essay also examined a problem within democracies. Private control over credit could limit an elected government's choices. A government might promise reform, then depend on bankers unwilling to finance it. Kirchheimer used European cases to show why formal legal power and the means to carry out a policy could diverge.^[3] (pp. 266–271)

His question therefore reached beyond the wording of a constitution. Who could organize, obtain resources and make a decision stick? The same questions helped frame his later work on the courts and laws of Nazi Germany.

After leaving Germany in 1933, he worked in Paris and became associated with the Institute 's French branch. He moved to New York in the fall of 1937, where he revised Georg Rusche's study of punishment, published under their joint names in 1939 as Punishment and Social Structure. His 1941 essay on political compromise and wartime legal reports then carried his inquiry into bargaining power and law into new settings.^[1] (p. xxiv)

Kirchheimer began consulting for the Office of Strategic Services in 1943 and entered its Central European Section as a full-time analyst in 1944. In a draft guide for military government, he addressed the legal problems that would follow Allied occupation. The document, “The Abrogation of Nazi Laws in the Early Period of MG,” survives without a date. Laudani places its completion near the end of March 1944 from internal progress records. Its cover still marked it as a preliminary draft awaiting approval.^[1] (pp. xxiv, 3–4, 229)

The guide rejected the simple step of canceling every rule issued since the Nazi takeover. Some rules concerned ordinary technical matters, such as boiler safety. Others combined older statutes. Removing all of them at once could create chaos. The report instead proposed identifying and repealing laws that imposed racial discrimination, suppressed basic freedoms or upheld central features of Nazi rule.^[1] (pp. 230–234)

A concrete problem was citizenship. Nazi law had stripped Jews of rights and distinguished full citizens from subjects. The guide proposed reversing those changes, while taking care with people abroad who had since acquired another citizenship. A general declaration of equality needed detailed legal work if it was to restore rights without creating new harm.^[1] (pp. 234–235)

Changing statutes was only part of the task. The guide argued that judges and prosecutors had helped sustain persecution. It proposed suspending the judicial staff while individuals were investigated. That recommendation would also stop the courts for a time, so the report considered how to handle the resulting difficulties.^[1] (pp. 232–234)

This was a demanding proposal for institutional reconstruction. Kirchheimer's analysis treated personnel and practice as part of law itself. A court could continue to undermine freedom after a discriminatory statute was repealed if the people administering it retained their old loyalties and methods.

The surviving draft establishes a proposed course of action. It does not establish that the military government carried it out. The report's author attribution also comes through Laudani's reconstruction of a collective research process: an early project record named Neumann with assistance from Kirchheimer and John Herz, while later records identified Kirchheimer as author.^[1] (p. 229)

Kirchheimer's American exile thus produced both an account of political bargaining and a plan for legal change after dictatorship. In both, the question was whether people could exercise rights in practice. A fuller account of the occupation would have to test his proposals against the decisions officials made and the courts they rebuilt.