Michael E. Tigar

The National Security State: The End of Separation of Powers

On March 11, 2014, Senator Dianne Feinstein went to the U.S. Senate floor to announce that the CIA had sought to sabotage a Senate Intelligence Committee investigation of torture and unlawful detention.… Already, government lawyers had convinced courts that there should be no judicial review of torture and unlawful detention. Such review, it was argued, was beyond the competence of judges, and the executive branch of government needed unfettered discretion to deal with national security threats.… The net result is that the CIA, the NSA, and all the other executive branch agencies engaged in surveillance, detention, torture, rendition of suspects, and even targeted killings by drone strike have claimed immunity from accountability by either of the two other branches—legislative and judicial. What they have done, why they have done it, and why their actions are or are not lawful—all of this has retreated behind a wall of secrecy. The claim made by government lawyers that there has been and will be legislative oversight turns out to be false.This article can also be found at the Monthly Review website, where most recent articles are published in full.Click here to purchase a PDF version of this article at the Monthly Review website.

The Reichstag Fire Trial, 1933-2008: The Production of Law and History

In the opening decade of the twentieth century the German national state united the great majority of the German speaking population of Europe, excluding only those in Switzerland and the Austro-Hungarian Empire, and was among the leading states of the world. It boasted technologically advanced industry, among the highest per capita GDP, and the second largest army and third largest navy in the world. Germany was at peace, save for minor military operations against disobedient natives in Southwest Africa. It was a state that was among world leaders in providing basic social insurance, yet held sacred private property and the rule of law, except only in strictly prescribed areas of national security. In the opening decade of the twenty-first century the German national state unites the great majority of the German speaking population of Europe, excepting only those in Switzerland and Austria, its industry is technologically advanced and its per capita GDP high. Its military budget is the sixth largest in the world, and it is at peace, save for minor military operations against disobedient natives in Afghanistan. Despite cutbacks, few states in the world have better provision of basic social insurance, and Germany today prides itself on holding private property to be sacred and on its adherence to the rule of law, except for a few strictly prescribed areas of national security. In the fourth and fifth decades of the twentieth century the German national state committed crimes universally agreed to be the most horrendous in human history. This article can also be found at the Monthly Review website , where most recent articles are published in full. Click here to purchase a PDF version of this article at the Monthly Review website.

Lawyers, Jails, and the Law’s Fake Bargains

Assume that Canada and the Western European countries have about the right number of people in jail. Assume that the social problem of crime is not terribly different in those countries than in the United States. Understand that our incarceration rate is five to eight times that of those other countries. If these assumptions, and this understanding, are even nearly valid, 80 percent of the people in American jails should not be there. This article can also be found at the Monthly Review website , where most recent articles are published in full. Click here to purchase a PDF version of this article at the Monthly Review website.

Law and the Rise of Capitalism

Originally published in 1977 and translated into Spanish, Portugese, Greek, and Chinese, Law and the Rise of Capitalism examines the role of law and lawyers in the European bourgeoisies conquest of power. From the scattered urban uprisings of the eleventh century to the English and French revolutions, Michael Tigar traces this history using charters, letters, statutes, and other primary sources.Against a backdrop of seven hundred years of bourgeois struggle, Tigar weaves a Marxist theory of law and jurisprudence based upon the Western experience. Contradicting R.H. Tawney and Max Weber, he shows that the legal theory of the insurgent bourgeoisie predated the Protestant Reformation and was a major ideological ingredient of the bourgeois revolution and also helps explain todays revolutionary movements.In a compelling new introduction, Tigar discusses the struggle for human rights in the historical context of the past two decades, drawing on his own experiences as a fighter for democratic rights in the United States, Europe and South Africa.