Horkheimer’s Critical Theory of Law

Max Horkheimer is often overlooked as a legal theorist. Yet his writings contain an original analysis of law, starting from the observation that there is a tension between political power and its legal form. On the one hand, law is a means of domination, instituted for the purpose of reinforcing the rule of some people over others. But on the other hand, law can become detached from this social function and obstruct the exercise of power, opening up a protective space for the freedom of individuals.
For Horkheimer, the central task of critical legal theory is to develop this tension in the concept of law. However, Horkheimer himself did not systematically spell out the details of such a theory: his remarks on law are strewn across several notes and essays, some of which were published only posthumously. Against this background, the project illuminates, first, a metatheoretical problem – What are the desiderata for a critical theory of law? – and, second, some implications for criminal law theory.
The aim is to reconstruct the foundations of the critical theory of law in the spirit of the early Frankfurt School through a careful analysis and commentary of the primary sources. While Horkheimer’s legal thought runs in parallel with that of his colleagues at the Institute for Social Research, it diverges in interesting respects from much of the contemporary literature that sees itself as a continuation of the Frankfurt School.