C:/ITOOLS/WMS/CUP-NEW/27599535/WORKINGFOLDER/MEIERHENRICH-RG/9781316512135C15.3D 278 [278–294] 18.2.2021 1:59PM 15 Conservative Critiques of the Rechtsstaat Peter C. Caldwell Introduction Given the connection of “law and order” politics with conservatism, the idea of a conservative critique of the Rechtsstaat at first seems contra- dictory. After all, wasn’t John Adams’s insistence on defending the British soldiers involved in the Boston Massacre used as evidence for his conser- vatism? Didn’t Burke’s criticism of the French Revolution revolve around the preservation of law as part of a concrete order? But law and order are not identical and it is in the tension between the rule of law and the well ordered society that the possibility for conservative critique of the Rechtsstaat lies. In a time of revolutionary upheaval, furthermore, when revolutionaries proclaim the law, the legal side of “law and order” can come under fire as well. The preservation of order, of course, is not just or even primarily a matter for the courts; it is a matter for political authorities from the executive to the army to the police. Preserving order against the perceived threat of chaos, whether from outside or from within a country, is related to the logic of “reason of state”: in certain cases the “state” as an existential force for order can ignore positive law and rights. Closely associated with the logic of the reason of state is the counter-Enlightenment critique of the ability of humans to create laws for themselves at all, given the inherent and irre- mediable taint of evil in humanity, a logic made with special force by Joseph de Maistre after the French Revolution. The need for a “dictator” to protect public order (Alexander Hamilton invokes the notion in the Federalist Papers, Carl Schmitt in the early years of the Weimar Republic) further underlines the conservative critique of the Rechtsstaat: concrete measures and just as important human leaders are necessary to fuse the nation and to ensure order. The abstract rights of citizenship that apply to all citizens might, from the perspective of conservatives (and others) also apply to citizens who undermine the political order. The rights of women,