Franz Neumann tells us in his landmark 1942 work Behemoth: The Structure and Practice of National Socialism that, because National Socialist law, in decoupling law from the normative system emergent from organic social relations, eschewed generality, it is difficult to say there is any law at all under totalitarian monopoly capitalism. At least not in Nazi Germany. Rather than reflecting and defending the organic social relations that gave meaning and purpose to it, the law became an instrument of radical social change directed by institutions subservient to a political ideology. But not only in Nazi Germany.
The denial of generality changed the law from a universal system representing the liberty and rights of all individuals to a system of differential protection where, depending on status, privileges, i.e., special rights, stood in the place of civil and human rights. “Absolute denial of the generality of the law,” Neumann writes, “is the central point in National Socialist legal theory.”
Following millennia of practice, the term “nation” meant for National Socialists something other than nation-state; it meant ethnicity, a people, which Nazis conflated with race. This is how German Jews came to be recognized as something other than German. What Nazis sought was a society in which the law privileged ethnic Germans, the “Germanic race,” believed the dominant national spirit in its territories; Jews and other inferior and subhuman nations were naturally subordinated to the superior races.
This is the meaning of National Socialism. It is “socialist” in the sense that individuals are subordinated to the corporate state, their personal identities disappeared into the collective. This is a specification of socialism unique to its totalitarian form. However, Nazi Germany remained an industrial capitalist society. A major purpose behind the establishment of National Socialism was to respond to the crisis of capitalism during that period, to restore the rate of profit by disciplining labor, undermining the movements for the democratic socialism and communism, which the Nazis portrayed as a Jewish cabal, and expanding the scope of the corporate state, first to Europe, then to the world. The corporate state found useful the Nazi project of replacing class consciousness with identitarian politics.
Configuring society along racial lines is the “national” piece of National Socialism. Under conditions of totalitarianism, individuals are depersonalized, deindividuated. The deindividuated are organized into racial groups, or nations, which already existed as ethnicities since capitalism and the nation in its civic sense (the nation-state) had not yet fully developed and detribalized society. The Nazis promoted the idea of the Volksgemeinschaft, or “people’s community.” What were becoming individuals became personifications of abstractions, hierarchically ordered, rationalized by a scientism that biologized society. Retribalization was (and is) a strategy of control.
The hierarchy of races was an abstraction of nineteenth century racial theory, developed initially by Joseph Arthur De Gobineau, who theorized that there was a natural hierarchy based on skin color and other phenotypic markers. This is the atavistic character of Nazism, its pretense to science not withstanding. Indeed, race science is anti-scientific; it’s ideology. This idealist scheme was applied to the world; Nazis used race science to forge alliances beyond the German territories.
Because of the superficial understanding of the character of German fascism, surprising given how vital it is to grasp the nature of an existential threat to freedom and equality, at least if one is honest about “never again,” the branding of the ideology of that period confuses many people, leading them to falsely equate Nazi Germany with the goals of socialism generally. We see this confusion most often on the political right, but it must also exist on the left; the authoritarian and illiberal character of progressivism goes unrecognized by the rank and file.
Ethnic Germans asserted their right to race privilege in part on a claim that they had been wronged by the Jewish race. Seeing the world through the lens of race, it was not just the Jewish fraction of the capitalist class that had wrong them. Social segmentation was not to be viewed through the lens of social class. That was Marxist trickery, and therefore Jewish. Jews, whether bourgeois or proletariat, were to be dealt with by what was truly common to them: their national identity. That is, their race. Because race was an objective and natural thing, the Jewish identity did not depend on subjectivity. A man was Jewish even when he did not see himself as such.
Nazis used this alleged wrong to institute a program of reparations wherein Jewish property was brought under state control and then appropriated. In the end, dispossessed of property and legal protections, Jews were marched to concentration camps where they lost everything.
A presumption in National Socialism, then, indeed the “ideological technique of the new legal theory,” as Neumann puts it in Behemoth, is that “freedom and equality are cloaks behind which exploitation is hidden.” Freedom and equality are the virtues of liberal capitalism, the political economic system Jews developed and used to amass great stores of wealth at the expense of ethnic German and and other workers of the superior races. The goal of National Socialism was to negate individual liberty and the principle of equality before the law and subsume persons under the total institutional authority of the extended state apparatus—this in order to right the world. For Nazis, this was social justice.
Identity politics was a major ideological component used to accomplish this goal on a mass level. Crucial to its success was working this way of thinking into common sense. Everybody had to think primarily in terms of race. Everything had to be about ancestry. Everything was tribal. This worldview had to be established as what Antonio Gramsci conceptualized as hegemony: those who opposed the new world order had to be canceled; everybody else accepting the worldview as just and virtuous. The Nazis did this by establishing control over the dominant institutions of society—marching their ideology through the universities and colleges, the mass media, etc., demanding its inclusion everywhere in the curriculum, in the reporting, etc.
When you hear rhetoric telling you that “freedom and equality are cloaks behind which exploitation is hidden” it is imperative that understand what lies behind this rhetoric. This is why it is so important to understand the character of National Socialism. This is a lesson from history. The survival of liberties and rights depends on recognizing the problem of identity politics and stopping it in its tracks.
Consider the demand we hear today to replace equality with equity. Equality before the law, the argument goes, leads to unjust outcomes for certain groups because it does not take into account the different circumstances these groups face. This is even true of equality of opportunity, since not everybody is in a position to take advantage of the opportunities out there. Equity, on the other hand, takes account of the different circumstances of individuals and groups and allocates resources in a manner that achieves equal outcomes. It supposes a social injustice that needs repairing. Somebody has something they came by wrongly and they need to make amends.
Marx’s slogan, “From each according to his ability, to each according to his needs” (from his 1875 Critique of the Gotha Programme), often identified as the principle of communism, where each individual has access to capital, goods, and services, is held up as a statement of equity. However, it also a statement of equality, as under communism each person has equal access to capital, goods, and services. Moreover, there is an expectation that each individual will contribute to society to the best of his ability. And, crucially, Marx’s slogan concerns individuals. It does not concern groups—not even social class (under communism there will be no social class). Equality and equity become sharply differentiated when applied to abstract groupings and in a way antithetical to Marxism, as well as liberalism.
The principle in operation at the founding of the American Republic was equality before the law. This is a liberal principle. Equality is central to the logic of Enlightenment, the normative order associated with the development of capitalism in Europe. Even though the law under capitalism reflects the structure and imperative of that mode of production (this is a general principle of the relationship between political economy and the law), normative social relations were such as to demand of the law the same protection of liberties and rights for the proletariat enjoyed by the bourgeoisie. To be sure, this arrangements served to keep the bourgeoisie in power, but it also meant that the individual proletarian was afforded due process and the right to seek redress of grievances through the law.
One may cynically theorize this as a hegemonic move, but the effect is very real. The abolition of race-based chattel slavery, exploitative relations developed during Islamic hegemony in the Mediterranean world-system inherited by European civilization, a legacy of the mercantilist period, was the result of the resolution of the contradiction between freedom and slavery that the principle of equality made possible. In time, the principle of equality—that each individual was to be judged without respect to the color of his skin—resulted in the abolition of segmented systems based on race.
However, for the critical race theorist (CRT), as with the National Socialists, “freedom and equality are cloaks behind which exploitation is hidden.” Both movements (countermovements really) organize their politics around race. Obsessively so. While CRT may not explicitly biologize race in the way National Socialism did, it nonetheless essentializes it in a way that renders it indistinguishable from the Nazi appeal to biology. CRT does differ from National Socialism in its appeal to a second-order simulacrum of Marxism, where it is allegedly held that the freedom and equality promised by bourgeoise legal order is an illusion.
But the communism of Karl Marx and the proletarian movement for which he served as master theoretician was not about destroying freedom and equality, but rather transforming economic relations such that freedom and equality could be fully realized in practice. Marx was a dialectician who sought higher unity in the system of liberal values by abolishing capitalist social relations. The higher unity that required overthrowing the contradiction between the private control over capital (the source of alienation) and all the other rights and liberties promised by the Enlightenment.
Marx never conceptualized individuals as mere personifications of abstract social categories save one: the material system of social class segmentation, not only under capitalism, but under every economic system since the original position of man was overthrown, i.e., primitive communism. Politics based on Marxism, if they are true to premise, do not seek a return to the original position of primitivism, but instead to achieve communism at an advanced stage of technological development, one in which necessary labor is eliminated (inevitable with rationalization—mechanization, automation, and so forth), with distribution of goods and services necessary based on need. Marx would never suppose that individuals are personifications of ideological categories. That would return Marx’s dialectic to Hegel, where it was standing on its head. CRT is antithetical to Marxism.
As I write in Critical Race Theory: A New Racism, “CRT treats individuals, materially concrete entities, flesh-and-blood human beings, members of the same species, as personifications of racial categories, as projections of ideas, an act of reification, i.e., making an idea out to be a real thing, while treating group-level disparities, i.e., statistical abstractions, as the actual circumstances of concrete persons. CRT thus commits two fallacies: (1) the fallacy of misplaced concreteness, i.e., treating abstractions as if they are real things, and (2) the ecological fallacy, i.e., drawing conclusions about individuals from group-level statistics.”
CRT perversely uses these fallacies as “truths” in a project to establish a new system of racism, one where individuals are not judged before law without respect to race or ancestry, but judged precisely on the basis of race and ancestry. Society and its justice system are to be organized on the basis of race.
This is not a future state of affairs. The project has already been substantially imposed. A black individual, regardless of economic standing or other advantages or disadvantages, enjoys the same race privilege in college admissions or consideration for employment over against every individuals who is assigned whiteness. Here, equality and equity are radically different things. In this scheme, whites as a group suffer systemic discrimination on the basis of race.
Blacks as a group are typically referred to as the “black community.” Increasingly, and in many places as a matter of style, the racial designation is capitalized (sometimes only for blacks). Thus we have witnessed emerge over the last several decades, the notion of the Volksgemeinschaft, or “people’s community.” The practice of defining a demographic category as a “community” conveys common interests and values. As a member of a monolithic group, each black individual is supposed to share interests contrary to those of whites.
If, on the other hand, racial ordering is abolished, and all individuals are treated as such, insisting on equity, i.e., equality of outcome, even if imperfectly achieved, would represent an attempt to achieve substantive equality. Not just for this or that group, but for everybody. Failure to achieve substantive equality would not necessarily make the formal equality principle unjust. Shouldering the burden of proof, the person claiming an injustice would be required to demonstrate his claim empirically and without reference to his group identity (with a few exceptions, such as disability).
Generally speaking, an individual is not a stand-in for an abstraction except where his position is physically or materially determined, such as in the cases of disability, sex differences, and societal class. Race is neither physical nor material. Neither is religion.
Surely you have you noticed the fetish rank-and-file progressives make of race in equity discussions while saying little or nothing about social class? Indeed, white proletarians are the subject of scorn by leftwing identitarians. They are the lot of them white supremacists. Have you also noticed how the rights of girls and women, heretofore based on sex differences, which are objectively real and scientifically determinable, are being dismantled and biological males are taking their place? In these cases, material and physical realities are denied and capitalism and patriarchy preserved, even more deeply achieved, while subjective categories that disrupt consciousness of these realities are elevated.
We have seen that the call for more reparations has gone out in America. Even before the program has been formalized, we see reparations in kind perpetrated in cities across America. But the formal system is coming along nicely. A task force in California is divided on which black Americans should be eligible for compensation as atonement for a slave system that officially ended with the Civil War. But there is a task force.
Since no living black person in America (with the exception of some African immigrants) was ever a slave, the choice is arbitrary. Why not run with CRT logic and treat every black person as a personification of a murky abstraction? The more difficult questions are (1) which white people do you make pay for something they could not possibly have done (go with CRT here and blame all white Californians) and (2) how do you separate out the black money from the white money to avoid blacks paying themselves reparations? A more thoroughgoing system of segregation is the solution for (2). We see the signs of resegregation everywhere.
I am not arguing the critical race theory and National Socialism are identical. There are many differences one may catalog if he wishes. I leave that to those who are interested in muddling matters. What I am arguing is that in form and substance the similarities represent two forms of fascist race thinking, both occurring in the context of totalitarian monopoly capitalism. That the present totalitarian order is, as Sheldon Wolin told us, inverted only makes the actual character of our circumstances a bit more difficult to recognize. But not impossible. (Indeed, as I argue in From Inverted to Naked Totalitarianism: The West in Crisis the totalitarian character of the present movement becomes more bold with time.)
The core marker of fascistic racism is a pervasive preoccupation with race and the existence of a corporate state organizing social life around that preoccupation, chiefly accomplished by shifting law from a focus on individual liberties and rights, emphasizing equality before the law, to a focus on group privileges and equity based on primitive notions of collective guilt and punishment. Both National Socialism and CRT seek to overthrow the Enlightenment and the modern nation-state and return human society to its tribal forms in the context of a world neo-feudalism governed by corporate states.
At the time he was penning Behemoth, Neumann could see that “[t]he principles [of the new legal order] are not fully developed. The law is still in a state of flux, the judiciary not yet fully synchronized.” One can see flux happening in real time. But you have to have the correct theory. In 1945, the Allied victory put an end to the transformation of German law into a system that denied the reality of human social relations, that sought to negate freedom and rights for individuals and subordinate them to institutional control.
While Nazi Germany was defeated, the spirit of the corporate state survived and found a new angle. This new angle is what I am calling the New Fascism. We find ourselves at back at essentially the same moment, where freedom and equality, indeed the entire normative order, are cast as the forces of oppression and the law and the judiciary, and this false characterization is being used to realign the political-juridical system with an antithesis that threatens to destroy reason and progress. The West is in an existential crisis.
There’s a lot more to the New Fascism than CRT. I invite you to spend some time on Freedom and Reason to learn more about what confronts us (see, for example, Totalitarian Monopoly Capitalism: Fascism Yesterday, Today, and Tomorrow). One of the most striking things I will mention here is that in both National Socialism and progressivism generally is the fact of rank-and-file support found in the middle class, the professional-managerial strata; key elements of the voting base common to both are engineers, government officials, journalists, physicians, school teachers, scientists, and students.
As a college professor, I am a member of the professional-managerial class. I chose my line of work because it’s interesting to me. Teaching was a calling. Although unintended, it puts me on the inside where I hear what elites really think about working people. For these elites, those in the heartland constitute a bunch of mouth-breathing neanderthals. They see them as an inferior breed. But I do not identify politically with that class or the class it supports, namely the corporate class. My choice of comrades is the working class. I’ve been there. I have dirtied my hands. And not just in my flower garden. That choice and experience, in addition to knowing the fate that awaits us if we do not act, guide my politics.