Down on Law
April 1, 2001
Apr 1, 2001
19 Min read time
Carl Schmitt (1888-1985) was twentieth-century Germany's most influential jurist of the authoritarian right wing. As a young law professor in Bonn and then Berlin, Schmitt gained prominence for his critical analyses of the legal frailties of the Weimar Republic, Germany's first experiment with liberal constitutionalism and rule of law. Expressing his longstanding authoritarian political preferences, Schmitt joined the Nazis in 1933. They quickly rewarded him with an appointment as state councilor to Prussia, a leadership position in the Nazi law professor's guild, and the editorship of Germany's most prestigious legal publication, Die deutsche Juristen-Zeitung.
Even after a 1936 falling-out with the SS, in which he was forced to surrender some of his political appointments, Schmitt continued to play a pivotal role in Nazi debates about international law. His jurisprudential apologies for Nazi imperialism in the late 1930s and early 1940s brought him renewed professional and public attention. During the postwar denazification process, Schmitt landed briefly in a US military jail and was permanently stripped of his professorship. Until his death, a deeply embittered Schmitt believed himself to have been a victim of the world power he held chiefly responsible for World War II: the United States, whose reckless commitment to the universalistic liberal ideals of the Enlightenment made it the real aggressor.
It is something of a surprise, then, that over the past decade Schmitt's work has been grabbing increasing attention from intellectuals. With liberal and neoliberal ideas now nearly unchallenged, why are so many suddenly fascinated with the controversial legacy of an adamantly anti-liberal legal thinker?
An easy answer would be that engagement with Schmitt's work has provided a way for German and Italian intellectuals to reflect on the intellectual roots of fascism in their countries. But curiosity about Schmitt, once limited chiefly to Germany and Italy, now extends to Great Britain and North America, where liberalism determines customs and mores no less than it does political and economic institutions. After an early round of crudely apologetic studies, Schmitt's ideas are now gaining a hearing among philosophers and political theorists who are hostile to Schmitt's political preferences but willing to consider his intellectual legacy as a useful starting point for criticizing contemporary liberalism.1 Gopal Balakrishnan'sThe Enemy: An Intellectual Portrait of Carl Schmitt represents the latest addition to this genre.
Perhaps, then, the growing interest in Schmitt traces to the revival of far-right politics in Western Europe, and to efforts by scholars to understand the disturbing return of thriving extremist right-wing political movements in France (through Jean-Marie Le Pen's National Front) and Austria (through Jörg Haider's Freedom Party). Core features of Schmitt's thinking do, after all, condone the worst elements of far-right politics. He believed that an effective political order presupposes far-reaching cultural and probably ethnic homogeneity; he was hostile toward the liberal ideal of government by debate; and he was dismissive of universalistic notions of human equality. All this makes him an apposite starting point for those on the far right in search of intellectual sugarcoating.
Moreover, Schmitt was an incisive critic of American global power, and his post-1945 jurisprudence consisted of constructing theoretical banisters for fellow right-wingers who shared his hostility to US hegemony and anger at the decline of European power on the world scene.2 His stubborn refusal to cooperate with denazification—Schmitt never apologized for his Nazi activities—adds to his appeal on the contemporary European hard right, where overt racism is joined to a populist critique of globalization. Anti-Americanism functions as a common denominator in this equation, since ethnic diversity and free-market economics are associated, not altogether inaccurately, with the United States. Contemporary right-wing European intellectuals hoping to give these widespread, yet so far inchoate, sentiments a more coherent structure find solace and assistance in Schmitt's work.
But it would be a mistake to reduce Schmitt's legacy to the ideological superstructure of the French National Front or Austrian Freedom Party. For Schmitt proposed an intellectually serious and complex challenge to liberalism. Ulrich Preuss, one of contemporary Germany's premier left-liberal jurists, rightly argues that "no one has formulated the anti-liberal alternative to the modern constitutional state as clearly, tersely, and pitilessly" than Carl Schmitt.3 Those of us who hope to defend and renew liberal jurisprudence cannot afford to ignore him.
Rule of Law?
Schmitt understood that liberalism's special contribution to modern politics lies in its emphasis on the rule of law. From Locke to Montesquieu to Bentham, Enlightenment liberal political philosophy offered a series of philosophically sophisticated versions of legalism, according to which the pathologies of the modern state—specifically, its centralization of coercive power—can be successfully tamed by guaranteeing that state actors act in a legally predictable and accountable manner: that is, by subjecting naked power to law. Thus, in a liberal regime, the fundamental "rules of the game" should take the form of a written constitution; normal legislative activity should issue in clear, general, and stable rules; and courts should possess sufficient independence to assure that government (and, especially, the state administration) coheres with the law. At least in traditional liberal jurisprudence, judicial discretion should be kept to a minimum, since extensive judicial prerogative is inconsistent with a fundamental commitment to government based on predictable legal norms.
Schmitt was a jurist—a fact that too much of his English-speaking reception plays down—and his principal intellectual interlocutors were other law professors and constitutional scholars. Writing in the early part of the twentieth century, such legal thinkers—in particular, the liberal social democrat Hans Kelsen, whose ideas represented a constant target for Schmitt—attempted to restate liberal legal ideals in the face of profound social and political divisions, the emergence of mass democracy, and a modern regulatory state whose interventions seemed hard to define and limit through general rules. Under such conditions, what could the rule of law mean? In the course of arguing against Kelsen and others, Schmitt successfully identified the Achilles' heel of traditional liberal legal thought.
Well before American Legal Realists of the 1920s and '30s dismantled conventional accounts of judicial decision-making by showing that legal reasoning is not a mechanical application of general rules to specific cases, Schmitt argued (in the 1912 volumeLaw and Judgment [Gesetz und Urteil]) that judicial recourse to even the clearest legal rule is plagued by substantial internal ambiguity. To borrow an example from H. L. A. Hart: Does the rule "No vehicles in the park" cover bicycles, baby carriages, and skateboards? To resolve the ambiguity internal to legal rules—heightened by increased state regulation of the market and the law'sincreased complexity—judicial decision-making would inevitably have to move beyond the confines of the settled legal materials (rules, standards, and precedents). Legal materials never offer neat "containers into which the judge deposits a particular act." And since judges can never simply draw their decision in a straightforward manner from the legal materials at hand, Schmitt proposed that they engage in a thought experiment. Judges, Schmitt argues, should ask themselves how other legal actors would likely interpret the always-open-ended rules at hand: "a judicial decision is correct today when it can be assumed that another judge would have decided in the same way." Who, then, was this "other judge" Schmitt thought capable of providing legal actors with guidance? In 1912, Schmitt alluded to "the empirical type of the modern expertly-trained jurist," in other words, the "normal" judicial professional of Schmitt's day.4
In his earliest writing, then, Schmitt rejected the Enlightenment view that political power could be restrained through a system of legal norms possessing the virtues of generality, clarity, prospectiveness, and stability. Instead, predictability and coherence in the law was more a sociological matter: it required a corps of judicial experts possessing some set of shared attributes—training, ideology, and culture—that could assure a common orientationtoward legal materials. Schmitt, in short, relocated the quest for determinate answers to legal questions from the rules themselves to the activities of judicial decision-makers. He thus anticipated the now nearly universal skepticism about the possibility of assuring certainty and integrity in the law by the mere "application" of legal rules. We now find echoes of Schmitt's critique of Enlightenment liberal jurisprudence everywhere, from left-liberal jurists like Ronald Dworkin and conservative proponents of Law & Economics to radicals sympathetic to Critical Legal Studies. Like Schmitt, they have been busily formulating answers to what is widely described in recent jurisprudence as the "crisis of legal determinacy."
In addition to identifying this problem, Schmitt's work provides a series of warning signs for those who aim to tackle its implications. Over the course of his career, Schmitt systematically sketched out a rigorously anti-liberal answer to the "crisis of legal determinacy," with horrifying results. Within the legal academy, many scholars who today delight in this "crisis" naively assume that such celebration is the first step towards progressive political and social reform.5 The example of Carl Schmitt suggests otherwise.
In Schmitt's mature works, regularity and predictability in legal decision-making required a "common orientation" of judicial actors, and that orientation could only be achieved on a resolutely post-Enlightenment basis—by rejecting the universalistic and egalitarian moral impulses underlying the ideal of rule of law. After the Nazi takeover, Schmitt insisted that stability and coherence in legal interpretation required a homogeneous corps of jurists, sharing an instinctive sense of national "community," as well as similar legal training and ideological orientation: no group solidarity, no law. The Nazi purges of social democrats and Jews from the courts—ardently endorsed by Schmitt in many publications directed at both popular and academic audiences—meshed with his own theoretical quest to salvage legal determinacy. Schmitt enthusiastically defended the ethnic cleansing of the German courts by declaring:
It is an epistemological verity that only those are capable of seeing the facts [of a legal case] the right way, listening to statements rightly, understanding words correctly and evaluating impressions of persons and events rightly, if they are participants in a racially determined type [artbestimmsten Weise] of legal community to which they existentially belong.6
In this line of inquiry, the liberal quest to limit state power by legal means was inherently "Jewish" in spirit, since Jews naturally evinced an instinctive hostility to state power because of their historic lack of a state and country of their own.7Thus, in a characteristic passage, Schmitt says that the late eighteenth-century German philosopher Moses Mendelsohn was "endowed with the unerring instinct for the undermining of state power that served to paralyze the alien and to emancipate his own Jewish folk."8 Accordingly, much of Schmitt's theoretical and political work as a prominent Nazi law professor and functionary during the 1930s was devoted to the dubious task of formulating an identifiably "German" conception of legal determinacy as an alternative to the purportedly anachronistic "Jewish rule of law."
Fortunately, Schmitt's life-long obsession with the problem of legal indeterminacy occasionally produced more interesting and less ugly results. Written before he threw in his lot with the Nazis, Schmitt's most impressive work, the 1928 Constitutional Theory[Verfassungslehre], applied his early insights about judicial interpretation to argue that every system of constitutional norms necessarily presupposes a legally untamed decision—an exercise of power, not within the legal system but prior to it. Just as judicial action involves discretionary power unregulated by the legal materials at hand, constitutions—including liberal constitutions—presuppose a political decision that can never be properly tamed by liberal legal formalities. That is, every novel constitutional system is established on the base of unharnessed power that, particularly from the perspective of the previous regime, represents the height of political willfulness and revolutionary illegality. Behind the cheery facade of constitutional government lurks the inextinguishable specter of legally unregulated power. Power before law: that is Schmitt's guiding idea.
In modern times, this power-prior-to-law is embodied in popular constitution-making power, seen since the French Revolution as the only legitimate source of political authority. The conventional story is that this untamed constitution-making power raises its head only briefly, in moments of revolutionary politics. But Schmitt argued that it is lasting—that naked power haunts the everyday operations of established constitutional government.
Where might we capture a glimmer of its persistent activities? Scholars have long debated Schmitt's answer to this question. By 1930, however, he probably believed that, in Germany, the executive embodied the popular power at the basis of Germany's version of liberal constitutionalism. He thought that the Weimar system assigned substantial discretionary power to the Federal President, the reactionary and unabashedly anti-democratic Paul von Hindenburg. In Schmitt's view, Hindenburg possessed direct popular authorization to legislate well beyond the scope of normal parliamentary mechanisms. Acting in the name of the people as a whole, Weimar's executive gave direct expression to the dirty secret of the irrepressible pouvoir constituant that defenders of liberal constitutionalism prefer to conceal. Between 1930-33, Schmitt thus devoted a substantial portion of his impressive intellectual energy to justifying a dramatic expansion of the constitutionally dubious emergency powers on which a series of increasingly authoritarian right-wing governments relied.
Legal theorists need to separate the wheat from the chaff here. Whatever the merits of Schmitt's analysis of the Weimar system, his critique of liberal constitutionalism reminds us of the tension-ridden relationship between popular sovereignty and constitutional limitations on power: Is popular sovereignty defined by a constitution? Or is it unmitigated popular power that underlies the constitution? The sad history of modern revolutionary politics provides many examples of Schmitt's observation that revolutionary violence inevitably poisons the workings of the "ordinary" system of lawmaking. Unfortunately, his theory also dogmatically discounts the possibility of radical political change—in which violence and arbitrary power play at most a peripheral role. Does it even make sense to see the anti-dictatorial movements that have swept Eastern Europe and Southern and Latin America in recent decades as expressions of lawless power? Their surprising reliance on pre-existing constitutional and legal mechanisms, commitment to non-violence, and preference for political networks built on deliberation and compromise all raise troubles for Schmitt's conception of the pouvoir constituant.
Similarly, Schmitt's numerous writings accurately diagnose the extreme interpretative ambiguity of international law, and sometimes perceptively describe how great powers—especially the United States—manipulate pliable legal norms to serve imperialist purposes. For example, he was right to worry about the tendency of liberal states to employ humanitarian rhetoric on behalf of foreign policy goals of dubious humanitarian character. Unfortunately, Schmitt goes on to exclude categorically the possibility of a cosmopolitan system of law where humanitarianism might finally amount to something more than great-power propaganda.
To his credit, Schmitt presciently grasped that the development of state intervention in the capitalist economy inevitably transforms the legal system by generating open-ended norms, vague delegations of authority to administrative agencies, and heightened bureaucratic and judicial discretion. And he understood the conflicts between these legal trends and traditional liberal notions of the law, and the ways in which these conflicts create endless invitations for the unbridled exercise of power. Instead of considering how we might make sure that the interventionist state maintains fidelity to the indispensable attainments of liberal legality, however, Schmitt simply considered these trends to be evidence for the superiority of a right-wing dictatorship free of legal restraint.
In a similar vein, Schmitt properly emphasized the dangers to liberal democracy of its surprisingly widespread reliance on exceptional and emergency law to resolve political and economic difficulties. Most Americans are unaware of the extensive role in our own legal system of emergency legal devices. Yet it was a group of liberal US Senators, not Carl Schmitt, who pointed out in 1974 that the United States recently had "[on] the books at least 470 significant emergency statutes without time limitations delegating to the Executive extensive discretionary powers, ordinarily exercised by the Legislature, which affect the lives of American citizens in a host of all-encompassing ways. Taken together, these powers confer enough authority to rule this country without reference to normal constitutional processes."9 But, while Schmitt was right to scold liberals for obscuring these problems, he was wrong to conclude that it proves that an openly authoritarian system, able to give free rein to emergency power, alone is fully attuned to the political imperatives of our times.
Enemy of our Enemy?
The most recent contribution to the Schmitt literature is The Enemy, Gopal Balakrishnan's well-written intellectual biography. The book provides an instructive overview of Schmitt's career, and usefully highlights those facets of Schmitt's thinking that anticipate present-day left-wing political and intellectual concerns. Jean Monnet Fellow at the European University Institute in Florence and a member of the editorial board of the British journal New Left Review, Balakrishnan is particularly impressed by Schmitt's account of the hollowing out of contemporary liberal democracy, as well as Schmitt's critique of a "Kafkaesque" system of liberal international law that hypocritically "invokes the highest ideals of humanity to justify 'police operations' and sanction regimes against outlaw governments." According to Balakrishnan, Schmitt's views illuminate the pathologies of the NATO-led war against Serbia and help us to understand why writers like the German philosopher Jürgen Habermas were wrong to appeal to universalistic notions of an emerging cosmopolitan legal order in order to support NATO's efforts.
Balakrishnan also considers Schmitt's skepticism about the prospects for legal restraints on the exercise of political power a refreshing corrective to contemporary liberalism. And he suggests that Schmitt's critique of liberal constitutionalism contains a radical-democratic kernel that might prove useful to political thinkers on the left—in particular because of Schmitt's idea that popular power is more basic than the constitution. Balakrishnan thoughtfully describes Schmitt's sober assessment of free-market conservative politics, and tries to employ the jurist as an intellectual ally against the free-market right. In contrast to these economic libertarians, Schmitt considered far-reaching state economic intervention desirable given capitalism's intrinsic instability, and he devoted significant attention to questions of regulatory law.10 Balakrishnan describes how the strength of the socialist left in Weimar forced Schmitt to interact with an impressive array of left-wing intellectuals. This dialogue gave Schmitt's thinking a complexity lacking in those conservatives who have never had to grapple seriously with the ideas of their opponents.
Balakrishnan acknowledges Schmitt's intellectual achievements without succumbing to crude apologetics. He documents Schmitt's relatively far-reaching enthusiasm for National Socialism throughout the 1930s and '40s, as well as the depth of his animosity towards the Federal Republic and American hegemony in postwar Western Europe. Balakrishnan should have said more about the integral role played by anti-Semitism in Schmitt's Nazi-era interlude, but at least his anti-Semitism is considered a serious matter requiring interpretation—many of Schmitt's other admirers have simply soft-pedaled it.
Still, a certain historical and political naïveté plagues Balakrishnan's study. Those conversant with the complexities of European intellectual life in the interwar years are likely to be less surprised (and not so impressed) by Schmitt's tendency to borrow, often opportunistically, from his intellectual opponents on the left. Fascist thinking was notoriously a hodgepodge, and Schmitt was hardly the only thinker on the right to agree with Marxists that the days of classical free-market capitalism had already come to a close. Mesmerized by the conceptual twists and turns of his object'scomplicated intellectual development, Balakrishnan tends to underestimate the depth and overall consistency of Schmitt's hostility to the Weimar Republic. He is probably right to be skeptical of the idea that Schmitt's embrace of Nazism was more or less inevitable. Yet Balakrishnan occasionally goes to the other extreme, and downplays Schmitt's life-long hostility to liberal democracy. Schmitt's anti-liberalism and hostility to global free-market capitalism occasionally seem remarkably reminiscent of contemporary radicalism. But this overlap probably says more about the hegemony of liberalism in the United States than it does about Schmitt's intellectual originality. Not surprisingly, left- and right-wing critiques of American imperialism share points of convergence. The more decisive matter remains where and why they differ.
In addition, Balakrishnan never really explains exactly what liberals and leftists should learn from Schmitt. The underlying idea is that Schmitt's legacy contains numerous valuable insights for contemporary political thinking. And Balakrishnan does make a number of provocative suggestions along these lines. Yet, in the final analysis, they remain just that: underdeveloped suggestionsthat still require substantial clarification. Balakrishnan seems enamored of Schmitt's agonistic understanding of politics as resting on potentially life-or-death struggles between "friends" and "enemies," and he relies on Schmitt to criticize emasculated accounts of politics. But do we need Schmitt to respond forcefully to misconceived neoliberal views that obscure the ubiquity of strife and conflict to political life? Balakrishnan may be right to note that "[d]emonstrations, gigantic rallies and general strikes are events which keep alive, and in motion, the original constituent power of the people." Yet to claim this observation—as Balakrishnan does—as support for Schmitt's irresponsible defense of "periodic emergencies" not only distorts Schmitt's own intentions, but hardly provides a useful starting point for considering how contemporary democratic politics might be revitalized. At least Schmitt distinguished between popular protest and fundamental constitutional crises.
Finally, Balakrishnan focuses on biographical information at the expense of jurisprudential ideas. Schmitt's legal ideas, more than any other facet of his life or thinking, repay careful attention. Indeed, one of the most peculiar features of the ongoing English-language fascination with Schmitt is its limited impact on legalscholars. Unlike in Central Europe, scholars unschooled in legal theory have dominated the Schmitt revival in North America. As a result, some of Schmitt's more provocative insights about the law have been neglected, whereas his biography has been endlessly debated.
More generally, we can learn more from Schmitt by taking the radicalism of his ideas seriously and arguing with them, rather than exaggerating the parallels between his outlook and ideas we might already embrace. Some recent contributions to legal scholarship provide initial evidence for the potential fruitfulness of this alternative approach.11 For those concerned with the implications of legal indeterminacy, the relationships between constitutionalism and democracy, emergency powers and the growth of executive power, and the pathologies of international law, Schmitt's theoretical reflections provide an indispensable point of reference. Far more so than Balakrishnan acknowledges, however, the intellectual figure of Carl Schmitt will have to remain an "enemy," albeit an enemy deserving of careful surveillance.
1 See Renato Cristi, Carl Schmitt and Authoritarian Liberalism(Cardiff: University of Wales, 1998); David L. Dyzenhaus, ed.Law as Politics: Carl Schmitt's Critique of Liberalism (Durham, N.C.: Duke University Press, 1998); John P. McCormick, Carl Schmitt's Critique of Liberalism: Against Politics as Technology(New York: Cambridge University Press, 1997); Chantal Mouffe, ed. The Challenge of Carl Schmitt (New York: Verso, 2000). See also the special issue of the Cardozo Law Review, vol. 21, nos. 5-6 (May 2000) devoted to Schmitt.
2 Carl Schmitt, Der Nomos der Erde im Voelkerrecht (Berlin: Duncker & Humblot, 1950).
3 Ulrich Preuss, "Der Begriff der Verfassung und ihre Beziehung zur Politik," in Zum Begriff der Verfassung. Die Ordnung des Politischen, ed. Ulrich K. Preuss (Frankfurt: Fischer, 1994), p. 10.
4 Carl Schmitt, Gesetz und Urteil (Munich: C. H. Beck, 1968 ), pp. 71, 86-88.
5 For some examples of this tendency, see Gary Minda,Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York University Press, 1995).
6 Carl Schmitt, Staat, Bewegung, Volk (Hamburg: Hanseatische Verlagsanstalt, 1934), p. 45.
7 Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes, trans. George Schwab (Westport: Greenwood Press, 1996), p. 60.
8 Carl Schmitt, "Nationalsozialistisches Rechtsdenken," Deutsches Recht 4 (1934): 225-29.
9 A Brief History of Emergency Powers in the United States(prepared for the Special Committee on National Emergencies and Delegated Emergency Powers, United States Senate 1974), p. vi.
10 Schmitt's embrace of extensive economic regulation immediately earned him the enmity of the dean of twentieth-century free-market legal thought, Friedrich Hayek, who misleadingly dubbed Schmitt a "socialist" as a result. See Hayek, The Road to Serfdom(Chicago: University of Chicago, 1944).
11 David Dyzenhaus's excellent Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller (Oxford: Clarendon, 1997) engages Schmitt's ideas in the context of contemporary Anglo-American jurisprudence. Though they do so in different ways, two important recent studies on the nexus between constitutionalism and democratic politics also constitute attempts to respond critically to Schmitt: Andrew Arato, Civil Society, Constitution, and Legitimacy (Lanham, Md.: Rowman & Littlefield, 2000); Ulrich K. Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (Boston: Humanities, 1995).
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April 01, 2001
19 Min read time