请将“1.4.1	Kirchheimer’s Schmittianism
However, the above-mentioned omission clearly leads to theoretical difficulties. In particular, with Kirchheimer the idealisation of a quasi-proletarian law of feelings is apparent. The positive reference to a ‘revolutionary sense of justice’ with its obvious echo of the ‘sound popular instinct’,89 as well as the positive reference to the clausula rebus sic stantibus, that is, the provision of arbitrariness^0 that what yesterday was still legal can already tomorrow be retroactively illegal, represents an uncritical reference to a totalitarian understanding of the state. For after all it was the Russian state apparatuses which were not tied to anything beyond the mediating legal form, except their ‘feeling’, and were meant to be freed from any bond. Also his critique of the mere ‘legal mechanism’ was based on a tradition of authoritarian top-down experto- cratic justice, where the state apparatus defines for each individual in material provisions what happiness and justice are, precisely by way of the ‘values’ Kirchheimer privileged91 Evidently Kirchheimer thus wants to clarify his view that a socialist society can only be arrived at through class struggle and not through a reliance on law, on a ‘lawyers’ socialism’ (Engels). But in this representation, he is taken in by a flawed understanding of immediacy. He is not able to illustrate the difficult dialectic of the achievements of the bourgeois legal order and its simultaneous moments of domination and repression. Franz Neu-mann had from the outset a significantly deeper insight into this issue92
Moreover, the description of the political as a ‘reflex’ relationship is questionable. As a Marxist Kirchheimer assumes a connection of politics and economy. This is, however, somewhat incidentally assumed, rather than explained.
The disadvantage of addressing legal issues without an analysis of the legal form becomes clearly apparent here. Especially his observation that decisions on power are wrested from the distribution of forces and ‘transposed’ into the sphere of law, for example, could already give indications for an analysis of the legal form. Teubner, for one, puts forward the argument that Kirchheimer was the first in the Marxian tradition who recognised the parallelisation of the legal form and the commodity form: ‘The momentum of a social subsection in its expansion on the entire society is the aspect of Marxian theory Kirchheimer creatively pursues in the relationship of politics and law’.93 It should however be mentioned that in Kirchheimer this happens - unlike with Pashkunanis - rather unconsciously. This is revealed when he denies precisely the legal character of the legal mechanism. He is unable to consistently recognise the relative autonomy of the legal through the transposition into the legal, for law and power can no longer be distinguished in his conceptualisation: law as such becomes a clausula rebus sic stantibus: the immediate effect of socio-structural conditions. Its relative autonomy is only recognised by Neumann.
1.4.2	Neumann: Relative Autonomy
Franz Neumann theorised the ‘relative autonomy’ of the law independently. Thanks to his more complex understanding of totality, and by engaging with bourgeois discourse, he is able not to dismiss law simply as a mere reflex of the ‘economic base’94 In this respect one has to explicitly disagree with Inge- borg Maus, who accuses Neumann of giving ‘too little consideration to this machinery’s self-interest as a factor in its own right’, so that the freedomsecuring dimension of law remains ‘a strangely foreign, theoretically unqualified aspect’ in his theory95 Neumann insists that the two elements of coercion and freedom cannot be reconciled. He stresses the element of domination in the law more strongly than do, for example, the approaches of Habermas or Maus.
The reason the ‘ethical function’ can nonetheless appear as an unsubstantiated element lies in how it is derived. Neumann’s explanation of totality and relative autonomy takes up only about half a page. The concept of totality is operationalised as a model of three spheres, which isolates the spheres of politics, economics and law not just analytically, but also factually, and places them alongside each other. While Neumann refers formally to Marx and Hegel 
and their concept of totality,96 he does not actually apply it to his own work. Ultimately, he remains attached to an abstract concept of totality, that is, a sum-mary one. He therefore deduces the three functions of bourgeois law from the liberal history of ideas, and not from an analysis of capitalist social structure.
Moreover, the relationship of structure and action remains unexplained, as he ties the legal form to ‘economic interests’ (‘free competition’ requires the general law, ‘monopoly capitalism’ does away with the constitutional state) without again strategically connecting them to structures in turn. Further analysis will show that concepts of totality are central for legal theory, because the role of the law has to be explained in this overall context.
Even if Neumann thus does not entirely succeed in describing the articulation of relationships, it can nonetheless be noted that he worked out the central significance of this ‘independent moment’ of bourgeois law. This is an achievement for materialist theory - one that will have to be frequently referred back to in response to economistic shortcuts. In particular, in the discussion about the internationalisation of law, for example, its insight remains central in order to be able to distinguish between legal and non-legal moments. Only when this ‘relative autonomy’ from social power relations is given can one speak of law. When someone already equates factual action with law, such as Michael Hardt and Antonio Negri, they omit this special feature. It is no accident that to do so they have to fall back on Carl Schmitt97 Capitalist relations of domination, which do not even use the form of law, are ones of brute force. This difference is lost in an understanding of law that is too general98 Neumann therefore speaks in the context of National Socialism of a social form ‘in which the ruling groups control the rest of the population directly, without the mediation of that rational though coercive apparatus hitherto known as the state’.99
After all, to point out the obvious, it was until this historical moment in no way customary to even acknowledge relations of domination beyond the class antagonism. Marxist legal theory meant first and foremost the analysis of the class struggle and the field of the ‘economy’. Here how the bourgeoisie took over an old relation of domination in its state formation (Gramsci) and undermined the battles of the sexes that occurred there, was entirely blocked out. Neumann and Kirchheimer share this androcentric blindness to gender relations not only with Luhmann and Habermas, but also with all subsequent Marxist theorists. 
1.4.3	Conclusion
The two legal theorists of the Frankfurt School embarked upon a difficult path and in doing so at the same time only first opened it up for their successors. Both stressed the necessity of always considering law in relation to the social structure and especially the balance of powers (‘class compromise’). In contrast to systems theory, strategically acting protagonists are from the outset brought into a relation with the evolution of law. It is the new bourgeois class which historically asserts specifically capitalist law for its way of life and mode of production. Even if this component is not sufficiently conveyed structurally, it nonetheless leaves an important starting point for further theoretical development. Neumann and Kirchheimer furthermore stress in different ways that one can only speak of law when it is relatively independent, that is, ‘relatively autonomous’ of those power relations when they are ‘transposed’ into the legal. In this, they insist that social power relations are not entirely dissolved in law, but can even come into conflict with it. Their version of the ‘primacy of being’ reaches the conclusion that such a contradiction determines or dissolves the legal relationships. Therefore, capitalism and democracy cannot be reconciled from their perspective. One can see that Neumann and Kirchheimer also shift between the dialectical poles of coercion and freedom. They raise in a radical manner those questions which will also be time and again at the centre of materialist legal theory later on, even though they do not always answer them satisfactorily. Their questions, however, will serve as the guiding thread of the subsequent discussion:
1.	How does the relationship of law and society, and in particular political economy, have to be conceptualised?
2.	What explains the ‘relative autonomy’ of the law, which allows one to attribute an ‘ethical function’ to it that also protects the weak?
3.	How do power relations materialise in law, and what enables legal technique to ‘wrest’ political decisions from this immediate relationship?
4.	Does law have an emancipatory potential that transcends society, or is this impossible, because social relations slip away from their actors?
2	Evgeny Pashukanis
A methodological break in materialist legal theory is first made by Evgeny Pashukanis. He no longer concerns himself with immediate interests and their analysis, merely producing a theory ‘which explains the emergence of legal regulation from the material needs of society, and thus provides an explanation of the fact that legal norms conform to the material interests of partic- 
ular social classes. Yet legal regulation itself has still not been analysed as a form, despite the wealth of historical content with which we imbue it’.100 If law always only serves to enforce interests, it remains unclear why this even has to take place in legal form? A materialist general theory of law has to analyse ‘the legal form as such’™ - and do so based upon Marx’s analysis of the commodity form in Capital. Engaging with the ‘legal form as such’ means, in contrast to a mere history of institutions or a content analysis of norms, a general legal theory. Pashukanis considers his own work here only a ‘modest contribution’,™ ‘at best a stimulus and material for further discussion’.™ As a stimulus it found fertile ground indeed. Whoever expressed themselves in future about Marxist legal theory had to engage with Pashukanis’ analysis of the legal form. Pashukanis thus became a remarkable author, one whose theory inspired critical debates about law for decades. The contradictions he left are paradigmatic for material legal theory. They will therefore be described here in detail.”翻译为中文