Deabting Carl Schmitt's legal theory
June 1, 2001
Jun 1, 2001
12 Min read time
In his review of my book The Enemy ("Down on Law," April/May 2001), William Scheuerman takes issue with my biographical approach to Carl Schmitt's work, my interpretation of Schmitt's legal and political theory, and my understanding of his contemporary relevance. Scheuerman's criticisms fail to confront the arguments I present in support of my method and my views.
1. Biography? Schmitt described politics as a zone of struggle between friends and enemies, and this conception guided his own intellectual practice. His work consists of a series of political interventions—partisan theoretical snapshots of the battle zones of Weimar and Nazi era Germany. Because his texts are written as such interventions, the meaning of Schmitt's formulations can only be fully grasped when they are seen as responses to positions staked out in a previous conjuncture—as political arguments, directed against specific enemies and supporting specific friends. Schmitt's ideas never crystallized into a system: he held that political thought had to be as mobile and protean as its object. The biographical/narrative mode of my study is designed to capture this dynamic, political logic of Schmitt's thought.
In particular, Schmitt's work describes and responds to a series of threats to the classical European state as both a sovereign entity in the international order, and as a legal system based on the division between public and private spheres. His Weimar era writing focuses on the destabilizing impact of a new mass-democratic politics on the constitutional norms of European liberalism—the rule of law, separation of powers, an independent judiciary, and protected spheres of individual rights. Originally conceived as limits on royal sovereignty, these norms came to provide restrictions on an even more arbitrary rule of the people prone to imposing unfair taxation on the wealthy and even to confiscating their property. This democratic threat—what Marx once described as the spectre haunting Europe—materialized in especially sharp form in the Russian Revolution and the brief wave of proletarian insurgencies that followed in its wake. The Weimar Republic inherited this legacy of popular insurgencies and violent counter-offensives.
Schmitt's politico-legal project originally took shape, then, as a reaction to a democracy that had opened the door to threats to the social order ranging from tax-and-spend government to a dictatorship of the proletariat. As he put it: "Democracy turns into proletarian democracy, and replaces the liberalism of the propertied and educated bourgeoisie." Traditional constitutional devices had neutralized this democratic threat by ensuring that state power remained limited in size and scope. But twentieth-century warfare and welfare permanently changed the terrain of political life by producing an explosive expansion in the size of the state and the scope of its regulatory functions, undermining this laissez-faire approach to government. The solution, as Schmitt saw it, was to reestablish limits on popular sovereignty, at a time when previously apolitical spheres of economy and society had become zones of intense political conflict. His project was essentially counter-revolutionary, though moderated by a temperamental openness to other perspectives. He oscillated between ultimately irreconcilable solutions to the same problem of limiting democracy—a conservative project of stabilizing the postwar order by criticizing sources of legal chaos and a radical project that sought to undermine that order by radicalizing the very same lines of critique. Schmitt articulated the legal case for a nominally constitutional Presidential rule. The objective of the clique around President Hindenburg was to side-step parliamentary accountability in order to implement unpopular budget cuts and reactionary constitutional reforms. When members of the clique failed to pull this scheme off within the constitution, they abandoned the constitution and embraced Hitler.
While Scheuerman seems to acknowledge Schmitt's theoretical originality, he also suggests that Schmitt shared a great deal with other anti-democratic figures of the German far right (something that he says I fail to notice). But how many on the right, aside from Schmitt, explicitly rejected German Romanticism—the main current of German conservatism, with its organicist ideas of the volk—as intellectually and politically bankrupt? How many of them read and offered serious commentary on Marx, Lenin, Trotsky and the Young Hegelians? How many of them were considered serious interlocutors by such Marxists as Georg Lukács, Walter Benjamin, Otto Bauer, Otto Kirchheimer, and Franz Neumann? Aside from Schmitt, no one. Scheuerman argues that Schmitt's appropriations from left were opportunistic and fairly standard conservative, anti-capitalist rhetoric. But Schmitt's visceral anti-Romanticism was distinctive. This stance fundamentally altered his intellectual relationship with the left. Unlike other conservatives, he was skeptical about ideologies of organic reconciliation, and he attempted to address a problem at the core of Marxist reflections on politics—the possibility that political strife emerges out of irreconcilable contradictions. This was a serious intellectual and political engagement, not opportunistic rhetorical borrowing.
The biographical/contextual strategy also throws light on the role of anti-Semitism in Schmitt's work—a topic about which Scheuerman claims that I do not say enough, even though it provides a focus for three of the seven chapters of my book. What I demonstrate is that, until the last year of the Weimar Republic, Schmitt's writings and letters show no trace of anti-semitic sentiment, but that, after the Nazis come to power, Schmitt became skilled at transforming crude anti-Semitic ideograms into a higher order theoretical discourse. Schmitt's anti-Semitism warrants careful reconstruction if only to judge at what point it emerged in his career, how deeply rooted it subsequently became, and in what respects did it begin to shape the overall direction of his thought. Without biographical contextualization, it would be difficult to know how to answer these questions.
2. Theoretical Outlook? Scheuerman claims that I neglect Schmitt's legal theories. I am mystified by this assertion. Most of my book is a reconstruction of "the twists and turns" of Schmitt's conception of the core problems of legal interpretation in the domestic and international spheres. By not engaging my account more directly, Scheuerman ends up obscuring his own.
My central claim is that Schmitt argued that the meaning of the most fundamental provisions of a constitution can only be determined by a potentially contestable interpretation of the whole constitutional order. In the normal course of things, a consensus of jurists, judges, and lawmakers limits the range of interpretations of the whole, neutralizing the most politically explosive readings. But Schmitt, writing in age of civil wars, framed problems in the light of extreme scenarios: when the consensus melts away and the constitutional text becomes another battlefield in an interpretative war of maneuver. Schmitt argued that there is no technically correct approach to constitutional interpretation that would neutralize this problem of interpretive indeterminacy. Scheuerman should state more clearly whether he thinks Schmitt is right or wrong about this.
Constitutions do not form closed systems of rules because they inevitably contain open-ended authorizations which expose rules to precedent setting interpretation, annulment, emergency suspension, and at the outermost limit, the enactment of a new constitution. This indeterminate agency of interpretation and transformation—what Schmitt later called "political surplus value"—is not necessarily invested in any particular institution (say, a supreme court); and for very long periods it can be neutralized through a division of powers. But it cannot be extinguished as long as deep conflicts—civil strife, chronic economic instability, and wars—are still with us.
3. Contemporary Relevance? Scheuerman represents me as one of a group of leftists who see Schmitt as a useful starting point for criticizing contemporary liberalism. If liberalism can be reduced to the rule of law—as Scheuerman suggests—then Schmitt's account of the eclipse of rule-based jurisprudence should surely be of interest to liberals. But Schmitt's critique of liberalism cuts more deeply than Scheuerman acknowledges.
Schmitt identified liberalism with the parliamentarist ideal of government by discussion. He held that classical liberalism conceived of parliament as occupying center stage in an enlightened public sphere. The influence of autonomous public opinion on legislation ensured that such legislation would be in conformity with reason—otherwise the rule of law would be little more than a cruel and empty phrase. The crisis of parliamentary government that Schmitt diagnosed was, then, a crisis of over-politicization—the collapse of consensus, under the impact of the intertwined struggles of classes, interest groups, and parties—which undermined the link between law and reasoned impartiality. By contrast, government by discussion languishes today under an unprecedented degree of consensus about the historical inevitability of a world market society, in which markets supplant reasoned discussion as a basis of social coordination. Some contemporary liberals object to this argument, embarrassed by the fact that they no longer believe in the possibility of an authentically enlightened public opinion, and have resigned themselves instead to a world of apathetic, atomized, and manipulated electorates. But liberals should instead accept the critique of parliamentarism as a challenge to reinvent a public sphere, in which informed, reasoned discussion about the distribution of property and power becomes the focal point of political life.
Schmitt's relevance to contemporary debates on international law is even more apparent. Here we leave behind the world of the rule of law and enter a zone where the fictions of legality can be particularly pernicious. Schmitt forcefully called into question the coherence and impartiality of legal reasoning when applied to a world in which all states are supposedly subjects of an international community but only to widely varying and often unspecified degrees. One line of argument—associated with Kant—portrays this as a transitional moment in a long term process of levelling down disruptive concentrations of power through law. Scheuerman mentions that I attempt to explain why Jürgen Habermas, a persuasive defender of this tradition, was wrong to support the NATO bombing of Kosovo, but he misses my argument. I maintained that Schmitt's most trenchant criticism of the rhetoric of international law is not that the idea of a universal legal code violates the sovereignty of nations—an utterly commonplace view. It is rather that there is no compelling reason to believe that the evolution of international law limits the great power privilege of evading its jurisdiction when core strategic interests are at stake. Schmitt was a particularly astute forecaster of our American-headquartered world order.
Scheuerman thinks that the question of whether Schmitt's views on American imperialism were true or not is secondary to what for him is apparently always decisive: what were Schmitt's political motives in making that point. This is all too telling: he chides me for accepting Schmitt's idea that politics involves a struggle between friends and enemies, but Scheuerman's entire mode of analysis exemplifies it. Perhaps it comes down to a different understanding of liberalism. I believe that the last thing we ever need in intellectual life are calls for whole bodies of thought to be placed—to use Scheuerman's words—"under surveillance."
William Scheuerman replies
I did not intend to exemplify Carl Schmitt's harsh vision of a political universe divided into antagonistic friends and foes, but Gopal Balakrisnan's response to my review forces me to draw the lines between our views more clearly.
1. Intellectual biography is a useful scholarly genre. But in the case of Schmitt this interpretive strategy is complicated by the fact that Schmitt spent the postwar years busily marketing a revisionist account of his own role in Nazism, according to which he not only actively resisted the rise of the Nazis but did nothing more than pay "lip service" to Nazi anti-Semitism in the 1930s and '40s. That misleading picture of Schmitt's embrace of fascism (stated most bluntly in Joseph Bendersky's Carl Schmitt: Theorist for the Reich, on which Balakrishnan sometimes relies) constitutes a core feature of the apologetic account of Schmitt that has inordinately influenced Schmitt's present-day readers.
To his credit, Balakrishnan breaks with Bendersky's more absurd claims. Like Schmitt's defenders, however, Balakrishnan evinces a disproportionate interest in Schmitt's (mostly pretended) personal and political troubles as an intellectual and political "outsider" who never really felt fully at home either with Weimar's hard right in the 1920s or the Nazis in the '30s. Unfortunately, the point is not simply that Schmitt after 1933 "became skilled at transforming crude anti-Semitic ideograms into a higher order theoretical discourse." Instead, Schmitt's writings enthusiastically embraced Nazism in part because its anti-Semitic attributes performed vital functions for his intellectual project, which was to combat legal indeterminacy by guaranteeing an ethnically homogeneous corps of jurists. Nazism's worst attributes meshed with Schmitt's own jurisprudential aims, and Schmitt understood this in 1933 more cogently than Balakrishnan or any of the other present-day Schmitt enthusiasts.
2. As I noted in my review, Balakrishnan's book discusses Schmitt's assault on international law in great detail. But what is the payoff? We do not need Carl Schmitt to teach us that "there is no compelling reason to believe that the evolution of international law limits the great power privilege of evading its jurisdiction when core strategic interests are at stake." You get this point from International Relations 101, in the section on the Realist theory of international relations. Of course, the more controversial issue is that Balakrishnan, like Schmitt, apparently considers this phenomenon a fundamental and invariable manifestation of "the political," whereas liberals and democratic leftists should at least begin to consider how international law might effectively bind the mighty as well as the meek.
3. Balakrishnan is right to recall Schmitt's view that when "extreme scenarios" undermine political and social consensus "the constitutional text becomes another battlefield," in which even the plainest legal clause seems pliable and open-ended and legal indeterminacy becomes particularly acute. But do we need to go to Carl Schmitt to find out that during a dire crisis, conventional legal and constitutional mechanisms are likely to founder? Moreover, we should be wary of the fascination with "extreme scenarios," and reflect hard on their lessons for normal politics. Most obviously, a primary function of a well-conceived constitution is to help ward off "extreme scenarios" in the first place. Perhaps, then, the implications of Schmitt's assertion that "there is no technically correct approach [within the legal system] which would neutralize … interpretive indeterminacy" can be substantially minimized during the course of normal liberal-democratic politics.
4. Balakrishnan is right to underscore the significance of Schmitt's reception of left-wing ideas, but let's not overstate his originality: let me just allude to the fascinating literature on fascism that focuses on the manner in which influential European intellectuals during the interwar years fused traditional "left" and "right" themes in a confused but politically explosive manner (see Zeev Sternhell's The Birth of Fascist Ideology).
I leave it to others to determine whether I have entirely failed to do justice to Balakrishnan's arguments. I do concede my failure to understand why a member of the editorial board of New Left Review seems bent on salvaging positive lessons for contemporary political thought and practice from Nazism's most important jurist.
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June 01, 2001
12 Min read time