请将“For this kind of state consists exclusively in its laws. Decisions are felt to be bearable only because they appear colorless and nonauthoritative, and because they seem to emanate from independent judges freely deciding on the basis of their conviction. Thus, the paradox has arisen that the value of the decision lies in its character as a legal ruling handed down by a generally recognised legal authority, while on the other hand it embodies only a minimum of decisional content. The state lives off the law; yet it is no longer law [Recht], it is only a legal mechanism, so that those who think they are guiding the affairs of the state actually wield only a legal machinery ...48
Kirchheimer thus here distinguishes law from the mere ‘legal mechanism’. Law is thus a substantive decision, while the legal mechanism is the technique to 
make decisions seem non-authoritative, give them the appearance of neutrality and leave them to seemingly independent third parties, who appear removed from political conflicts. At stake is the ‘transposition of things from actuality into the legal-mechanistic’,49 of political conflicts into the institutional framework and a terminology of legal process with its own momentum, where they are dealt with according to the autonomous rules of the legal machinery.50 Kirchheimer rejects the ‘legal mechanism’ for two reasons. On the one hand it suggests a neutrality that is not actually the case, on the other there are no longer any substantive decisions made as a result, and the state machinery declines into an administrative apparatus.
This understanding can be illustrated once again by Kirchheimer’s positive description of Russian law at the time. Here the judiciary is the organ of the workers. There is a break away from the idea of the judiciary as an independent third party above the parties in the conflict. That rulings are made in the name of specific values is openly visible. Soviet judges are practised in ‘revolutionary consciousness’^1 The law is furthermore not one for eternity, but is temporally limited: ‘Soviet law does not stand in need of a special clausula rebus sic stantibus52 since it is itself the law of the clausula rebus sic stanti- bus’.53
1.3	The Relationship of Law and Social Structure
The central difference between Neumann and Kirchheimer lies in their respective conception of the relationship of social structure and law. Both start from class constellations as the determining social conditions. For Kirchheimer, political and legal structures can at best make them processable. Therefore, the bourgeois constitutional state does not contain any genuine moment of freedom either. The ‘concealing function’ Neumann describes appears to be the only one for Kirchheimer. For him there is no ambivalence, while Neumann assumes a greater autonomy of the legal field. In the following, this relation will therefore be examined more closely once again.
Neumann assumes a ‘total interpretation of all social phenomena’. ‘Political, religious and mental ideas as well as family relations are realities to which the legal norm is equally subjected’.54 Law is a dependent moment of a totality, but ‘may develop relatively independently of social reality’.55 Accordingly, legal norm and reality do not always match. One can change without the other - in which case one can speak of a ‘change of the function’ of the legal norm.56 Only in this way can the coercive character of the law ultimately be explained, which is necessary because of the general non-conformance of ‘all citizens’ in a society (even in a socialist one).57
Beyond those general considerations, Neumann’s materialist perspective is also visible in his methodological approach: he attempts to do justice to the concept of totality by way of parallel legal, economic and political descriptions. Both in The Rule of Law and in Behemoth he adopts this division. In doing so he makes clear that no sphere can be considered independently of the others. While Kirchheimer refers mainly to Marx’s political writings, Neumann, who is much more influenced by Weber than by Marx,58 reveals his connection to Marx primarily in his acknowledgement of the economy’s central importance. This can also be shown in his historic analysis. Thus, law can also be completely abolished when social power relations change. In relation to National Socialism his book on the constitutional state ends with the conclusion: ‘That law does not exist in Germany, because law is now exclusively a technique of transforming the political will of the Leader into constitutional reality’.59 In his examination of National Socialism he radicalises this result with the thesis of the decay of rational law. The latter is designed for the liberal era, namely free competition, the existence of a large number of more or less equal competitors and the freedom of the commodity market. Here freedom of contract and the calculability of administrating justice are essential requirements.60 With the removal of those elements in favour of ‘organised state capitalism’ and a monopoly economy*’1 the general 
law also disappears in favour of the command of the leader and the general principle.62 General norms are nonsensical:
The individual, irrational norm is calculable for the monopolist, for he is strong enough to do without formal rationality. The monopolist cannot only do without rational law, it is often even a shackle ... for rational law can after all not least also protect the weak. The monopolist can do without the help of the courts, for his command is a sufficient substitute63
The transition from competitive to monopoly capitalism thus undermines from Neumann’s perspective the economic basis of the legal order based on the general law64
Law is accordingly a specific phenomenon of the bourgeois, rational state and differs from a ‘mere technique’ or ‘mere ideology’ in its relative autonomy. When this is dissolved, power relations can no longer be described as legal65 As social power cannot be dissolved in legal relations, the suspension of law in favour of brute force is always a possible general tendency.66 The contradiction of force and freedom is then dissolved in favour of the former.
Kirchheimer’s perspective is about the ‘tensions between political and social reality and the standard text of the constitution’67 Under the impression of a dwindling balance of forces, Kirchheimer’s perspective on the constitutional state changes. He no longer criticises its formality, but rather attempts to reveal its dependence on the underlying social conditions, which led to its decline in the Weimar Republic: the bourgeoisie had constituted itself as a uniform class in 1930 and thus completely changed the basis for the constitutional system. Its position of power then steadily increased, so that it no longer depended on reaching compromises68 As the Weimar Constitution encompassed different value systems side by side (bourgeois-liberal principles, but also social fundamental rights), a programme that brought the entire population together was missing from the start. This had consequences under the changed conditions, as the possibility of its implementation depended on the strengths of the different interest groups.69 Furthermore the precarious political and economic situation of the Great Depression represented for Kirchheimer an ‘objective problem’, which ‘threatened to even bring the democratic governance of a state to the brink of collapse’.70 Thus he opposed the ‘conceptually realist’ perspective of Carl Schmitt, who had asserted that the difficulties stemmed from specific inconsistencies within the Weimar Constitution?1 Here Kirchheimer’s materialism becomes visible: a change in the organisational designations of a constitution cannot change anything significant about the social structural relationships:
Democracy as the legal order, which follows reality as its shadow would at the next step of implementation of law and reality only be a shadow of democracy?2
Here too law and political-economic ‘reality’ are presented as dependent upon each other?3
Kirchheimer holds, in particular because of the importance he ascribes to class struggle, a pessimistic view of the Weimar Constitution. Thus, he takes great care to disabuse social democracy and labour unions of the notion that they can achieve a socialist society via the bourgeois institutions. He accuses them of believing in a peaceful transition instead of fighting?4 This notion is based on incorrect facts, such as ‘for Marx himself the political world was never more than a reflex of economic development’?5 And precisely this ‘economic development’ which is dominated by the class difference runs counter to the legal principles of popular sovereignty and the supremacy of the parliamentary legislature. At the moment, when the legality principle of the ruling class has become a problem, parliamentary democracy is also ‘synchronised with the social status-quo-conditions’76 and that via the mechanism of ‘two-step legality’.77 Thus, for example, the Supreme Court of the German Reich gave itself the judicial competence to investigate duly passed laws and thus placed itself outside the legal framework. ‘The destruction of the Weimar Democracy thus stems - and this is Otto Kirchheimer’s central thesis - from the structural incompatibility of capitalism and democracy ...’78
In the post-war period in particular Wolfgang Abendroth, Jürgen Seifert and Joachim Pereis took up the concepts of Neumann and Kirchheimer.79 Abendroth rephrased the thesis of incompatibility in such a way that ‘the separation of the political and the economic command creates a state of tension, which cannot be maintained over time in an only formally democratically organised state’80 He interprets the welfare state principle of the fundamental law against this background - against conservative constitutional theory - as the recognition of the historic insight that ‘the belief in the immanent justice of the existing economic and social order is dispelled’,81 and that this legal order is rather ‘put at the disposal of society’82
1.4	Critique
Kirchheimer’s and Neumann’s writings have to be ‘primarily seen in the historical context of the debates on constitutional theory and political strategy of their time’83 While Pashukanis and Stucka wrote their works in the time immediately after the Russian Revolution - thus Pashukanis briefly served as a ‘people’s court judge’ in 1917 and his main work, published in 1924, was even used as a teaching resource in Soviet legal studies84 - the social-democratic legal theorists in Germany had to address a bourgeois constitutional compromise between the working class and the bourgeoisie, and in particular the rise of National Socialism. Kirchheimer and Neumann had to make assertions about legal issues, without being able to first discuss the question of the ‘concept of law’, and without addressing the methodological problems mentioned above. Karl Korsch recognised in this a typical phenomenon of Marxist legal theory85 It thus86 ‘went straight past this main problem of a Marxist legal critique and ... simply logically presupposed the form of right as law (collective will, legal norm) as it presents itself in the contemporary reality of the capitalist state as an unmediated phenomenon’.87 Just as bourgeois economists of the pre- Marxist period had focused on analysing measures of value and in doing so overlooked what was specific about the value form, Marxist legal theory consciously and categorically refrained from any analysis of the legal form itself even a full century later.88”翻译为中文