A glimpse into Gerhart Niemeyer's functional conception of law through 21st-century European eyes
Written by Giulia La Torre
In 1941, at the height of Nazi power, international law was widely regarded as something of an illusion, if not a dangerous fantasy blinding States to the crude reality of international relations. The great post-First-World-War attempt to provide a law-based system of collective security, as incarnated by the League of Nations, had all but failed and great armies were once again being deployed over the vast expanses of the European Continent. As Nazi military units made inroads into both Eastern and Western Europe, as the war expanded in scope and brutality, it became painfully clear that the law of nations was impotent against the enduring threat of war. And as is usually the case with self-evident truths, the moment of realization came fast and furious. Thus, in the immediate aftermath of Nazi military land grabs, academics and politicians were left to reckon with the fullest implications of an old Hobbesian proposition: for all that law does and can do for the pacification of domestic society, the force of law is simply no match for force itself – and even less so, one might add, when confronted with the powerful and effective arsenal of weapons and techniques of the highly organized States of modern international society. So it was that, in the darkest hours of the Second World War, the project of ‘peace through law’ seemed so remote as to be defunct. Unsurprisingly so, to be sure. After all, at a time when the indescribable horrors of the Holocaust were taking place and a victorious Nazi Germany was becoming more and more of a possibility, the idea that the scourge of public war could be eliminated by the means of law, in a direct parallel to the process whereby the option of private war became legally closed off to the individual, was difficult to sustain. The factual basis of international law had broken down and, as many saw it then, so too had the conceptual tools of the international legal scholar.
With this diagnosis in mind, and yet still grounded in the belief that “a lasting and effective order in international relations” could one day be achieved, a certain German jurist began to search for solutions to the dilemmas posed by a patchwork of increasingly unenforceable international laws. Such an enquiry materialized into a thoughtful book, which was first published on that same terrible year of 1941. The jurist was none other than Gerhart Niemeyer, the book is called ‘Law without Force’, an intriguing, though perhaps ill-timed, title (or, at any rate, a title which was unbecoming of the violent times), and contained within its pages is a new and bold conception of international law and law, more generally speaking. Niemeyer’s central strategy, in a nutshell, is to adopt a ‘functional’ approach to the problems of the international legal order, which he genially describes as “the unreality of international law and the unlawfulness of international reality”. In what he sees as an effort to conceptually renovate international law, Niemeyer purposefully distances himself from the dominating imperative and coercive models of law, of which Austin and Kelsen may be said to be representative respectively, and sets out to cast law, and more particularly, international law, in an altogether different light: as a law of interdependence built on functional necessity rather than as a law of subordination built on physical force. Accordingly, Niemeyer very much rejects the ‘voluntaristic’ concept of law, where law is held to be an “artificially produced facticity” or, simply put, “the expression of the will of a supreme authority”. Instead, he advances an ‘organic’ interpretation of law, according to which all legal rules are, in his own words, “the rules of order” found deep within “the structure of social relationships”.
Given the above picture of what, for all intents and purposes, is an attack on the main tenets of legal positivism, it is really no wonder that Niemeyer’s position should be branded a natural outgrowth of Legal Realism. In a manner not unlike the legal realists of the age, Niemeyer chooses to place a premium on the efficacy of law and, ultimately, does consider the valid norm to be the norm which is efficaciously performed. In contradistinction to the adherents of the realist school of legal theory, however, Niemeyer does not believe that issues of law can be resolved as a matter of plain fact. Whereas the prototypical realist may be said to view law exclusively or primarily as a conglomerate of rules which, supported through a network of psychological and material factors, determines human behaviour, Niemeyer’s perspective is, in line with the Kantian and Hegelian legacies in German legal philosophy, less sociological and more idealistic-historical in nature. Far from denying the normative aspect of law, the ambition behind Niemeyer’s work is no less than to preserve a minimum basis of the special ‘oughtness’ of law on the international scene. In his search for this ‘minimum’ content of law, Niemeyer writes of the immanent teleology of legal-social conduct and, thus, draws close to doctrines of natural law. Nonetheless, Niemeyer’s theory is different to classical natural law theory in at least one crucial respect: the substance of law lies in a ‘cultural’ social order, in the pragmatic conditions of social life, rather than in a ‘natural’ moral order, in the lofty principles of morality. By painting law as a functional prerequisite for social interrelatedness, as an indispensable means for the realization of both personal and transpersonal ends, Niemeyer conflates ‘legally binding’ with ‘technically required’ in a way that seeks to combine the ideal and the empirical or strike a balance between the normativity of law and the facticity of law, to borrow terms from Habermas. On the whole, then, what sets Niemeyer’s oeuvre apart is the substitution of force by function. That is to say, the replacement of the conception of law as force – either the coercive force of the legal sanction, the brute force of social fact or the obligatory force of the moral ‘ought’ – with the conception of law as function – the function of social integration and stability. Law as function, and not law as will, law as fact or law as reason, is that which, in Niemeyer’s eyes, can alone bridge the gap between facts and norms on the international plane and, therefore, that which must provide the theoretical framework for the legal system in general and the international legal order in particular.
In the years following the release of ‘Law without Force’, Niemeyer’s functional understanding of law was tailed by equal parts criticism and praise. The book, standing at the crossroads of the three main strands of legal thought, took heat from many different quarters, and Niemeyer himself was sneered at for apparently pushing law to conform to the bloody state of affairs rather than push the bloody state of affairs to conform to law – and perhaps not without reason. Niemeyer does conclude that international law must, for the sake of its own survival, become less moral and more political at a juncture when politics was synonymous with state-sanctioned mass murder. What is often overlooked is that Niemeyer employs the word ‘political’ in an idiosyncratic fashion, in that by ‘political’ he usually means something closer to ‘social-technical’ than ‘ideological’. Be that as it may, most legal scholars who cared to review the book agreed on the value of Niemeyer’s contribution to the doctrinal debate, with some lauding it as a highly original, thought-provoking, and compelling read for all those getting to grips with the failings of international law. Despite the controversy and recognition that surrounded ‘Law without Force’ during the war period, Niemeyer’s thesis of a ‘functional’ international law quickly fell into relative obscurity among large swaths of the European intellectual and political classes. This sudden indifference seems especially perplexing when one stops to consider Niemeyer’s insights and ideas in the time and place of post-bellum Europe – at a time of moral and economic reconstruction and in the context of the nascent, if promising, project of European integration.
It is certainly an irony of history that the book should have drifted out of the public eye, to remain largely unremarked, at the very moment when a functionally differentiated (and, by extension, functionally legitimated) legal regime was slowly but surely starting to take over Western Europe. There is, of course, no way to know whether or not Niemeyer’s spirited defence of a ‘functional’ system of law was actually read by the founding fathers of the European Union, or, for that matter, by the judges of the European Court of Justice sitting on the seminal cases of the 1960s and 1970s. It would appear that Niemeyer himself was never cited as a source of inspiration in the effort to create, with the age-old instruments of international law, a new kind of law: the technical law of trade liberalization and harmonization or, as Niemeyer would say, a law through which functional coordination of States can be achieved and under which States are able to fulfil their functional tasks. Conscious influence or not, one thing is clear: the hopeful, albeit seemingly ludicrous, notion of ‘law without force’ took firm root in the early days of the European Economic Community and has since become encoded into the DNA of EU law. Indeed, where else, if not in the EU, do we find a supra-ordinate and autonomous centre of law-giving authority and no corresponding supra-ordinate and autonomous centre of law-enforcing authority, a polity not only lacking a monopoly of force but an enforcement capacity altogether, and, ultimately, an effectual law and yet a law not backed by “direct powers of coercion”?
 KUNZ, J. L., Niemeyer on Law without Force: A Review, Michigan Law Review, Vol. 39, No. 8, 1941, p. 1344
 NIEMEYER, G., Law without Force: The Function of Politics in International Law, Princeton University Press, 1941, p. 9
 HABERMAS, J., Between Facts and Norms, MIT Press, 1996, p. 30
 OLIVECRONA, K., Law as Fact, Stevens & Sons, 1971, p. 62
 NIEMEYER, G., Law without Force: The Function of Politics in International Law, Princeton University Press, 1941, p. 400
 See: OLIVECRONA, K., Law as Fact, Stevens & Sons, 1971, Chapter 3
 Historical Archives of the European Commission, Speech by Walter Hallstein to the European Parliament in the debate on the Dehousse report, 17 June 1965, p. 7