Carl Schmitt’s State And Constitutional Theory: A Critical Analysis [First edition] 0191833991, 9780191833991

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OXFORD CONSTITUTIONAL THEORY Series Editors: Martin Loughlin, John P. McCormick, and Neil Walker

Carl Schmitt’s State and Constitutional Theory

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OXFORD CONSTITUTIONAL THEORY Series Editors: Martin Loughlin, John P. McCormick, and Neil Walker

Oxford Constitutional Theory has rapidly established itself as the primary point of reference for theoretical reflections on the growing interest in constitutions and constitutional law in domestic, regional, and global contexts. The majority of the works published in the series are monographs that advance new understandings of their subject. But the series aims to provide a forum for further innovation in the field by also including well-​conceived edited collections that bring a variety of perspectives and disciplinary approaches to bear on specific themes in constitutional thought and by publishing English translations of leading monographs in constitutional theory that have originally been written in languages other than English. ALSO AVAILABLE IN THE SERIES Constitutional and Political Theory Selected Writings Ernst-​Wolfgang Böckenförde Edited by Mirjam Künkler and Tine Stein Constitutionalism Past, Present, and Future Dieter Grimm Europe’s Functional Constitution A Theory of Constitutionalism Beyond the State Turkuler Isiksel Post Sovereign Constitution Making Learning and Legitimacy Andrew Arato Popular Sovereignty in Early Modern Constitutional Thought Daniel Lee The Cultural Defense of Nations A Liberal Theory of Majority Rights Liav Orgad The Cosmopolitan Constitution Alexander Somek The Structure of Pluralism Victor M. Muniz-​Fraticelli Constitutional Courts and Deliberative Democracy Conrado Hübner Mendes

Fault Lines of Globalization Legal Order and the Politics of A-​Legality Hans Lindahl The Cosmopolitan State H. Patrick Glenn After Public Law Edited by Cormac Mac Amhlaigh, Claudio Michelon, and Neil Walker The Three Branches A Comparative Model of Separation of Powers Christoph Möllers The Global Model of Constitutional Rights Kai Möller The Twilight of Constitutionalism? Edited by Petra Dobner and Martin Loughlin Beyond Constitutionalism The Pluralist Structure of Postnational Law Nico Krisch Constituting Economic and Social Rights Katharine G. Young Constitutional Referendums The Theory and Practice of Republican Deliberation Stephen Tierney

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‘Der kritische Moment in der Reichstagssitzung vom 12.09.1932: der Kanzler meldet sich zum Wort’ Reproduced with the kind permission of the German Federal Archive Bundesarchiv, N 1310 Bild-048

Following the 1932 elections in which the Nazis and Communists combined obtained a majority in the Reichstag, Chancellor von Papen (left) stands to deliver a decree to dissolve the Reichstag before it could convene. President of the Reichstag (upper right), the Nazi Hermann Göring, pretends not to see von Papen and instead calls on a Communist member of parliament, who motioned for a vote of no-confidence against von Papen’s governing cabinet. The vote passed. Von Papen’s governing cabinet, and its dissolution decree, were legally invalidated forcing President von Hindenburg to intervene directly.

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Carl Schmitt’s State and Constitutional Theory A Critical Analysis Benjamin A. Schupmann

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1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © B. Schupmann 2017 The moral rights of the author‌have been asserted First Edition published in 2017 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2017953187 ISBN 978–​0–​19–​879161–​4 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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For my parents

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Acknowledgements

Scholarship does not occur in a vacuum. This book would not have been possible without the insights and interventions of many others and I  am grateful for their help in improving it. The shortcomings contained within are strictly my own responsibility. In particular, I  would like to thank Martin Loughlin and Lars Vinx for reading and commenting on the entire manuscript. Their critical feedback provided ample ground to improve upon and develop my arguments more deeply and I am humbled by their kindness and generosity. I also would like to thank Nehal Bhuta for his support in the development of the book. I am grateful for his encouragement. This book grew out of my PhD dissertation, Leviathan Run Aground, and it would not have been possible without the comments, advice, and patience of my advisors and colleagues at Columbia and in New York: Jean Cohen, Nadia Urbinati, Sam Moyn, Andreas Kalyvas, David Johnston, Akeel Bilgrami, and Sheri Berman. All shaped the final outcome of this project as well as who I have become as a scholar. I am indebted to all my German teachers. In particular, I  am grateful to Jutta Schmiers-​Heller and Olle Rhodin for the time they invested in nurturing my German over coffee, rumkugeln, and beer. I am also thankful to the numerous people who have read chapters and pushed me forward in one way or another over the course of this book’s development: Andrew Arato, William Bain, Joseph Bendersky, Alison Brown, Luigi Caranti, Renato Cristi, Mario De Caro, Axel Domeyer, David Dyzenhaus, Kevin Elliot, Alessandro Ferrara, Sophia Gans, Christopher Garos, Gerd Giesler, Christopher Hobson, Axel Honneth, Jennie Ikuta, Joshua Kurz, Elvin Lim, John McCormick, Reinhard Mehring, Florian Meinel, Brett Meyer, Terry Nardin, Fred Neuhouser, Andrew Norris, Luke O’Sullivan, Haig Patapan, Costantino Pischedda, Andrew Poe, Hsueh Qu, David Rasmussen, Alex Rigas, Lydia Rose-​Walker, Noah Rosenblum, Nicole Roughan, George Schwab, Oliver Simons, Daniel Steinmetz-​Jenkins, Christina Tarnopolsky, Claire Anne Taylor, Neil Walker, and Samuel Zeitlin. Jürgen Becker, Martin Hoppenheit, and Matthias Meusch and the staff of the Nordrhein-​Westfalen Hauptstaatsarchiv in Düsseldorf assisted me with accessing Schmitt’s Nachlass. I  am indebted to the Gillian Lindt Dissertation Research Fellowship Fund, the Deutscher Akademischer Austauschdienst (DAAD), the Columbia University Department of Political Science, and the National University of Singapore for their generous financial support. My thanks to the anonymous reviewers for improving this project substantially with their fantastic suggestions and comments. I also thank Eve Ryle-​Hodges and

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Acknowledgments

Elinor Shields from Oxford University Press for their assistance and their patience with me. Finally, I am grateful for the support of Sungmi, who has patiently stood beside me during my best and my worst moments. She has always pushed me to exceed my limits and my expectations. Without her love and support, I would have taken twice as long to produce half as much.

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Contents

Introduction

Constitutionality and the Weimar Crisis 

1

Chapter 1

The Challenge of Mass Democracy 

35

Chapter 2

The Concept of the Political 

69

Chapter 3

The Absolute State 

107

Chapter 4

The Absolute Constitution 

135

Chapter 5

The Guardian of the Constitution 

153

Chapter 6

Basic Rights 

173

Conclusion

Carl Schmitt and Constrained Democracy 

201

Bibliography 

221

Index 

237

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 1

Introduction Constitutionality and the Weimar Crisis

1.  “was ist verfassungsmä Β ig?” Late in his life, Carl Schmitt reflected back on the political crisis of Weimar in January 1933 and argued that it illustrated the broader dilemma of twentieth-​ century liberal democratic states.1 Following the November 1932 elections, Reichspräsident Paul von Hindenburg faced a dilemma over who to appoint Chancellor of Weimar’s governing cabinet [Reichsregierung]. The broader dilemma it illustrated was whether a democratic state could commit suicide constitutionally. On one horn of Hindenburg’s dilemma stood the option of Kurt von Schleicher.2 Von Schleicher had already been appointed Chancellor six weeks earlier. With a social authoritarian administration, he aimed to employ economic measures to create jobs and stabilize Weimar’s economy and society. By mid-​January, however, von Schleicher’s program had not produced positive change. With the Reichstag, Weimar’s parliament, about to convene for the first time since the November elections, von Schleicher anticipated its deliberately obstructionist Nazi and Communist majority to pass a vote of no confidence against him. He appealed to Hindenburg to dissolve parliament for reelections (to exercise Article 25 of the Weimar Constitution) and allow him to continue governing Weimar by executive action and to buy time to produce results.3 Thus, renewing von Schleicher’s Chancellorship meant overriding democratic elections and instituting a crisis-​driven executive custodial government. On the other horn of this dilemma stood the option of Adolf Hitler. Hitler led the Reichstag’s largest democratically elected party and promised   Frank Hertweck, Dimitrios Kisoudis, and Gerd Giesler (eds), “Solange das Imperium da ist”: Carl Schmitt im Gespräch mit Klaus Figge und Dieter Groh 1971 (Duncker & Humblot 2010) 59–​76. 1

 Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik (Duncker & Humblot 1999) 24–​5. 2

3

 Ibid 25.

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

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Introduction: Constitutionality and the Weimar Crisis

Hindenburg he would work with Hugenberg’s conservative nationalist party (the DNVP—​Deutschnationale Volkspartei (“German National People’s Party”) to form a workable majority coalition, something Weimar had not had for years. But it was unclear what Hitler would actually do—​and whether he could be controlled—​were he appointed Chancellor. The Nazi Party’s explicit political platform included instrumentalizing democratic amendment procedures to abrogate Weimar’s liberal democratic constitution. Its platform also included clear racist, bigoted, and violent intentions, all inconsistent with liberal democratic values. And yet the Nazi Party was, unmistakably and unambiguously, the largest democratically elected party in the Reichstag. As its leader, Hitler had a strong claim to the Chancellorship. The situation in January 1933 was the culmination of an ongoing impasse within Weimar democracy. Since April 1930, the Reichstag had been unable to produce any substantive agreement or working majority coalition.4 Because of that impasse, the Reichstag could not legislate at the height of Weimar’s succession of crises that followed on the 1929 Great Depression. It could not even arrive to any consensus on its governing cabinet. This situation left the Reichspräsident as Weimar’s only functioning democratic authority. Accordingly, the governing cabinet depended entirely on the confidence and support of the Reichspräsident (Article 53) and Weimar was governed primarily by executive acts, ordinances, and decrees (Article 48.2).5 Korioth identifies two stages of Weimar’s 1930s crisis-​driven government.6 The first stage coincided with Brüning’s term as Chancellor from March 1930 to May 1932. Although no majority coalition could form in the Reichstag, his cabinet’s rule was generally tolerated by the parties, including the largest party at the time: the SPD (Sozialdemokratische Partei Deutschlands—​ the Social Democratic Party). Brüning was thus able to govern without the Reichstag either exercising a vote of no confidence against his governing cabinet (Article 54) or annulling its decrees (Article 48.3). The second stage coincided with von Papen’s and von Schleicher’s terms as Chancellor, from June 1932 to January 1933. Neither of their cabinets was tolerated by the Reichstag. This is in part because of the changing views of the German electorate. After the elections in July 1932, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei—​the Nazi Party) and the KPD (Kommunistische Partei Deutschlands—​the Communist Party) combined obtained a majority of seats in the Reichstag. Because their worldviews were antithetically opposed, the two parties could form no governing majority coalition. Nevertheless, the   Stefan Korioth, “Rettung oder Überwindung der Demokratie—​Die Weimarer Staatsrechtslehre im Verfassungsnotstand 1932/​33” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 514–​15. 4

5

 Ibid 507.

6

 Ibid 508ff.

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“Was Ist Verfassungsmäßig?” 

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Nazis and Communists were able to form a “negative majority” and oppose any other attempts to govern.7 As a result, the Reichstag could not be allowed to convene in this second stage of crisis-​driven government. Hindenburg was compelled to repeatedly exercise Article 25 and dissolve the Reichstag to enable the cabinet to govern at all. The dilemma Hindenburg faced in 1933 arose as German voters, in ever-​increasing numbers, elected parties committed to dismantling liberal democracy. Beginning with the elections in 1930, the popularity of Weimar’s republican parties like the SPD and Zentrum had begun to decline and they were unable to form working majority coalitions in the Reichstag. This situation came to a head with the elections of November 1932, in which the NSDAP obtained approximately 33 percent of the vote and the KPD 17 percent. The SPD, in contrast, obtained only 20 percent. Both elections in 1932 produced the vexing outcome of the majority of seats in parliament being held by the NSDAP and the KPD. The decision of illiberal and antidemocratic extremists to participate in Weimar’s democratic institutions was a strategic maneuver. Following a series of failed attempts at violent revolution in the 1920s, both movements took a page from Lenin’s playbook. Recognizing the possibility for legal revolution within “bourgeois” democracy, Lenin had argued revolutionaries eschew violence in favor of subverting parliamentary democratic institutions from within.8 Both the Nazis and Communists recognized that Weimar’s constitutional amendment procedure (Article 76)  was a Trojan horse with which they could revolutionize and overthrow its constitutional democracy.9 Accordingly, they incorporated nonviolent, legal revolutionary methods into their repertoire. The Nazis in particular went to great lengths to preserve the veneer of their legality even as they vowed to annihilate the Weimar Constitution, illustrated for example by Hitler’s 1930 pledge that   Schmitt defined a negative majority as when “entirely different and often even mutually hostile parties from the right and left, for example, Communists and National Socialists, united in order to subvert the government or to bring down government bills—​without themselves being capable of or even considering making their own positive proposals or taking responsibility for governance.” Carl Schmitt, “Das Grundgesetz der Bundesrepublik Deutschland” in Klaus Hansen and Hans Lietzmann (eds), Carl Schmitt und die Liberalismuskritik (Leske + Budrich 1988) 187; Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 364; Carl Schmitt, Der Hüter der Verfassung (4th edn, Duncker & Humblot 1931) 115–​21; Carl Schmitt, “Reichstagsauflösungen” in Carl Schmitt (ed), Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 Materialien zu einer Verfassungslehre (Duncker & Humblot 1958). See below. 7

  E.g., he wrote “Whilst you lack the strength to do away with bourgeois parliaments and every other type of reactionary institution, you must work within them because it is there that you will still find workers who are duped by the priests and stultified by the conditions of rural life; otherwise you risk turning into nothing but windbags.” V. I. Lenin, “Left-​Wing Communism: an Infantile Disorder” in Collected Works, vol 31 (Progress Publishers 1974) 59. 8

  Cf. Ingeborg Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory” (1997) 10 The Canadian Journal of Law and Jurisprudence 125, 135. 9

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Introduction: Constitutionality and the Weimar Crisis

“the constitution dictates the method, but not the goal [Die Verfassung schreibt uns die Methode vor, nicht aber das Ziel].”10 In 1932 a majority of Germans voted for parties openly committed to annihilating the Weimar Constitution and its commitment to democracy, equal chance, liberal basic rights, and parliamentary representation. Taken at face value the German people had decided against liberalism and democracy. As German democracy cannibalized itself, it threw the dilemmas typically latent in constitutional democracy into sharp relief. Did constitutional democracy mean adhering to the outcome of democratic elections and guaranteeing the largest party—​however illiberal and antidemocratic its goals may be—​its right to form a governing coalition? Or did it mean invoking other constitutional provisions to preemptively deny illiberal and antidemocratic parties the opportunity to restructure the state and constitution through positive legal procedures? Hitler or von Schleicher? Was constitutional democracy above all a procedure or was it something more? On January 30, 1933, Hindenburg made his decision. After two years of overcoming Weimar’s problems by seizing the dilemma’s first horn, he no longer believed circumventing parliament offered a real solution and he worried about the constitutionality of his repeated exercise of emergency powers. Moreover, it seemed likely that reelections would only return to parliament yet another negative majority of the NSDAP and the KPD. Although dissolving parliament, calling for new elections, and using the interim to rule by executive ordinances temporarily overcame Weimar’s parliamentary impasses, this path offered no long term solutions and seemed at best controversial. And, no matter what was accomplished with a custodial government, Article 25 eventually meant returning to the status quo ante until something changed in German voting behavior. Under pressure to decide, frustrated by frequent elections and failed attempts at alternative solutions, and assured that Hitler could be controlled by Hugenberg and von Papen, Hindenburg appointed Hitler Chancellor of Weimar constitutionally, according to the rules of the game. An unintended consequence of Hindenburg’s decision was, however, a total revision of the nature of the game itself—​by appointing Hitler, he had set the wheels in motion for the revolution of Weimar. With his appointment on January 30, Hitler immediately invoked Article 25 and dissolved the Reichstag. Schmitt described how “without one word of protest from the guardians of the constitution, on February 2nd he issued an emergency decree (according to Article 48)” to consolidate his power as Chancellor.11 Schmitt declared this was Hitler’s first act of legal revolution. The second began the day after the February 27 Reichstag fire: Hitler’s Reichstag Fire Ordnance [Reichstagsbrandverordnung] “temporarily” suspended 10

 Berthold 50–​ 1.   11  Carl Schmitt, “The Legal World Revolution” (1987) 72 Telos 73, 83.

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the basic rights enumerated in Article 48 to deal with a possible insurrection. Using the power granted by that measure and the suspicion that the communist movement was somehow responsible for the fire, Hitler suppressed the KPD, focusing especially on its leadership—​excising the Reichstag’s third largest party. In doing so, Hitler paved the way for the NSDAP to form a stable majority alone. Exploiting every opportunity, legal and otherwise (including, violence, intimidation, and propagandistic appeals to the fire and communist menace), the NSDAP won additional seats in the subsequent March 5 elections. Now, with a two-​thirds majority in the Reichstag, Hitler committed his second act of legal revolution: passing an Enabling Act [Ermächtigungsgesetz] that effectively turned Weimar into a one party totalitarian state.12 Hindenburg’s decision to appoint Hitler has been attributed to senility. Schmitt rejected this explanation, arguing instead that Hindenburg was confused about the meaning of the constitution. Hindenburg was, Schmitt believed, mired in an “oath trauma [Eidestrauma].”13 Article 42 of the Weimar Constitution bound the Reichspräsident by oath to “protect the constitution.” Hindenburg genuinely desired to uphold his oath. But either choice in the January dilemma, not to mention the broader dilemma of twentieth-​century constitutional democracy, appeared to him to be at odds with his oath to preserve the constitution.14 Searching for a resolution to this dilemma in January, Schmitt reported Hindenburg repeatedly asked those around him “What is constitutional [Was   Ibid 83–​4. Ebert’s presidency had established a precedent in the transfer of power (Ermächtigungsgesetz) from the Reichstag, like the rule by decree. There were ten Ermächtigungsgesetze prior to the one that empowered Hitler. Cf. Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press 2004) 150. 12

  Hertweck, Kisoudis, and Giesler 59ff; Cf. William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon and Schuster 1960) 173. 13

  Berthold 28–​9; Cf. Hertweck, Kisoudis, and Giesler 67; Cf. Schmitt, “The Legal World Revolution” 83. Schmitt later adds that Hindenburg’s “oath trauma” also involved his earlier military oath to Kaiser Wilhelm II. Hindenburg, like many other Germans, did not think it was inconsistent with the Weimar Constitution to seek a legal, democratic way to restore the Monarchy (thus upholding his earlier oath). The second aspect of the oath trauma came to light through Brüning’s plan to prevent Hitler from seizing power. Brüning (apparently a monarchist in the end) believed he had found the necessary two-​thirds super-​majority in the 1932 Reichstag to make a massive constitutional change. His plan meant first cancelling the 1932 presidential elections and extending Hindenburg’s term. Then, he planned to have the Reichstag declare a monarchy with Hindenburg serving as its “regent.” After Hindenburg died, one of Wilhelm’s sons would resume the throne and Germany would revert to a constitutional monarchy similar to England’s. Implausibly, it seems Brüning had the necessary support in the Reichstag, including the backing of the SPD and the trade unions (opposed by the Nationalists, the Nazis, and the Communists). Apparently, an overwhelming majority agreed that, combined with thwarting Hitler’s rise, a constitutional monarchy was the best solution to Weimar’s crisis. Brüning’s plan fell apart because Hindenburg could not reconcile his two oaths. From his perspective, Brüning’s plan may have gone simultaneously too far (in abandoning Weimar) and not far enough (in not restoring Wilhelm to the throne). Schmitt, “The Legal World Revolution” 83; Shirer 153; William L. Patch, Heinrich Brüning and the Dissolution of the Weimar Republic (Cambridge University Press 1998) 302. 14

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Introduction: Constitutionality and the Weimar Crisis

ist verfassungsmäßig]?” As we shall see, Schmitt believed that Hindenburg’s confusion stemmed from a theoretical dispute in Weimar jurisprudence. The broader dilemma of whether democracy could commit suicide constitutionally, whether the express will of the people was the ultimate basis for political legitimacy, had its roots in debates about the nature of valid law.15

2.  positivist and anti-​p ositivist currents in the tradition of german public law Weimar debates about how to respond to this dilemma have been portrayed as a dispute between democrats and antidemocrats. The antidemocrats are characterized as such because they argued certain expressions of popular sovereignty were illegitimate and could be constrained. The democrats, on the other hand, argued that to oppose the will of the people—​no matter how deplorable it may be—​would be undemocratic. Gusy writes, however, that this portrayal is polemical.16 Disagreement over the proper response to the dilemma in Weimar was really between formal (or procedural) democrats and substantive democrats.17 The predominant interpretation of democracy by Weimar public lawyers was formal. They argued that any expression of popular sovereignty was consistent with democracy, as long as that expression adhered to the formal legislative procedures in effect. Substantive democrats countered that there were substantive criteria for distinguishing between authentic and inauthentic expressions of the will of the people and that genuine democracy may include limits to the legally expressed will of individual voters. This disagreement boiled down to a dispute in state theory about the nature of “the people”: whether the people was a unitary body or an aggregate of individuals.18 How one answered that question informed one’s answers to other questions,19 such as “Was there a definite ‘essence’ of the people (Volksbegriff) which all positive law should aim to approximate?” “Was 15

 Korioth 511.

  Christoph Gusy, “Einleitung:  Demokratisches Denken in der Weimarer Republik—​ Entstehungsbedingungen und Vorfragen” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 12–​13. 16

  Ulrich Steinvorth, “Demokratisches Denken in der Weimarer Philosophie” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 97–​8. 17

  Gusy 35–​6; Cf. Oliver Lepsius, “Staatstheorie und Demokratiebegriff in der Weimarer Republik” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 391; Hans Lindahl, “Law as Concrete Order: Schmitt and the Problem of Collective Freedom” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 40–​1. 18

  Lepsius 371–​6, 390–​8.

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the people something that existed prior to the constitution (and accordingly, was the task at hand simply to identify what its will was already)?” “Were democracy and popular sovereignty simply a set of rules and procedures (and accordingly was the task at hand to create ‘the people’ by constructing it out of the wills of its constituent individuals—​in a way, constructing it out of nothing)?” and—​the most pressing question—​“Could an act of popular sovereignty end the constitutional order by revolutionizing it?” In turn, Weimar theoretical disagreements about the nature of “the people,” about whether and how to respond to the dilemma of a majority of German voters electing illiberal and antidemocratic extremists into parliament, were rooted in a methods and orientation dispute [Methoden-​ und Richtungsstreit] between Weimar’s positivists and anti-​positivists.20 This dispute about the nature of valid law was the central axis around which Weimar state theory turned.21 Positivists argued that the will of the people was something produced formally by democratic voting and procedures. Anti-​ positivists argued that the will of the people preceded what was expressed through democratic procedures. The state’s role was not to produce the will of the people but to discover or identify it. This methodological dispute in turn informed views of what response to Weimar’s dilemma would be constitutional. The roots of the dispute between positivist and anti-​positivists extended back to nineteenth-​century German debates in jurisprudence. Although the two currents in this dispute have been characterized as “positivist” and “anti-​ positivist,” in reality both currents were broadly speaking positivist. Both agreed the nature and source of valid law could not be found in a transcendent, “natural” source. What divided them was the legitimacy of statutory positivism [Gesetzpositivismus]:  whether statutory positivism defined what valid law consisted in and how it was produced.22 Statutory positivism can be defined as the equation of the law (das Recht) with statutes (das Gesetz), so valid law (Recht) is coextensive with the set of commands of the legislator that have been formally enacted into statutes (Gesetze).23 It emerged in part in reaction to the prevailing juridical and philosophical movements of early nineteenth-​century Germany, the Historical School of Jurisprudence and German Idealism.   Korioth 511; Michael Stolleis, A History of Public Law in Germany, 1800–​1914 (Berghahn Books 2001) 440; Cf. Manfred Friedrich, “Der Methoden-​und Richtungsstreit” (1977) 102 Archiv des öffentlichen Rechts 161. 20

 Lepsius 366.

21

  Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Duke University Press 1997) 3–​4. 22

  Stanley L. Paulson, “Statutory Positivism” (2007) 1 Legisprudence 1, 5–​6; Cf. Caldwell 2–​3. Although Paulson does challenge this particular characterization of statutory positivism, he does demonstrate just how predominant it is today. 23

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The Historical School of Jurisprudence (Historische Rechtsschule) developed around the turn of the nineteenth century as a part of a broader reaction against the Enlightenment and its perceived liability for the French Revolution and the Terror.24 The Historical School was personified in Friedrich Carl von Savigny (1779–​1861).25 Savigny argued the Enlightenment had mistakenly sought to understand valid law in terms of universal and abstract rational principles.26 Influenced by German Romanticism, he argued the nature and concrete life of a particular historical people constrained and largely determined the content of what legitimate law consisted in. He expanded the scope of jurisprudence to include questions of how the law was conditioned by history and had its roots in the background practices of “the people” subject to that law, including its extra-​legal cultural practices such as that people’s customs, ethics, and its religious, ethical, and political identity. Savigny also opposed Enlightenment individualism, in particular the social contract tradition, arguing individuals cannot be conceived of apart from their communal membership in the state and nation.27 The nation [Volk] was not constituted by its members, their interests, or their wills.28 Instead, the nation constituted them. The state was, in turn, the organic presentation of that nation.29 Every nation was characterized by its particular “inner and necessary unifying spiritual existence.”30 This national spirit [Volksgeist] characterized that nation’s specific social and political being, defining that people’s collective purpose and basis for community.31 The law was one expression of that national spirit and, to be stable and legitimate, it needed to cohere with the broader cultural practices of that people. And because legitimate positive laws were embedded in and arose out of the broader cultural identity of a people, Savigny conceived of law as a rationality specific to a particular people.32 The spirit of a nation [Volksgeist] produced the law of that   Ernst-​Wolfgang Böckenförde, State, Society, and Liberty: Studies in Political Theory and Constitutional Law ( J. A. Underwood tr, Berg Publishers Ltd. 1991) 1, 5. 24

25

 Ibid 1.

  G. L. Ulmen, “The Sociology of the State: Carl Schmitt and Max Weber” (1985) 1 State, Culture, and Society 3, 8. 26

27

  Böckenförde 5; Stolleis 104.

  John H. Hallowell, The Decline of Liberalism as an Ideology with Particular Reference to German Politico-​Legal Thought (Kegan Paul, Trench, Trubner & Co., Ltd. 1946) 15. 28

29

 Stolleis 10.

  Roger Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition (Harvard University Press 2005) 113.

30

 Hallowell 15.

31

  Berkowitz 110; Christopher Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-​Sociological Perspective (Cambridge 2011) 9. 32

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nation [Volksrecht], which in turn reflected its essence and communal purpose juridically. For the Historical School, the nation had a quasi-​metaphysical status.33 It transcended its individual members and was more than the sum of its parts. The law had similar quasi-​metaphysical qualities. Savigny distinguished visible positive statutes [Gesetz] from their “invisible” and unwritten foundation [Recht].34 Recht was super-​positive law, in the sense that it was prior to and normatively determined the content of positive law. Accordingly, positive legislation was not about creating new law but concretizing the pre-​ existing law of the nation [Volksrecht]: “individual and nation live in and with their law; they do not create or apply law.”35 Legitimate positive law only reflected this prior law.36 The task of jurisprudence, Savigny argued, was to ensure “visible” law was continuous and coherent with its “invisible” foundations. He thought jurisprudence was in danger of becoming enamored with appearance, which would lead jurists to displace the authentic laws of the nation with their visible positive expression.37 If the content of positive law was removed from that source, friction between positive law and the nation, including its higher law, would destabilize the community. The state was, for Savigny, a legal person, admittedly a fiction, whose competence to interpret and apply that Volksrecht positively superseded any natural persons.38 Statutory positivism began its rise to methodological predominance in the wake of the failed Revolutions of 1848 and in reaction to the Historical School and German Idealism. In the failure of those revolutions, German legal and political thinkers saw “the Ideal” trumped by real power.39 Statutory positivism reflected German liberals’ frustrations to realize their normative agenda politically. Legal and political theorists resigned themselves to the reality of power and consciously limited themselves to dealing with “the real facts” and meeting “the demands of the day.”40 The outcome of this theoretical shift was the reconception of the state as a Machtstaat and the reconception of law as the concrete expression of the state’s will. Political scientists no longer conceived of the state as the march of reason in the world but, cynically, as the institution that could successfully concretize its will through power.41 Realpolitik was the theoretical expression of this view. Statutory positivism emerged in tandem with Realpolitik as many jurists felt they had no choice but to accept the will of that “power state,” however it presented itself.42 Unable to affect politics, jurists hoped to shake off or at least hold back politics’ corruption of jurisprudence.43   Martin Loughlin, Foundations of Public Law (Cambridge University Press 2010) 191; Böckenförde 6.

33

 Berkowitz 110.

35

 Berkowitz 118.

38

  Böckenförde 6, 10; Cf. Hallowell 58.

34

 Stolleis 65.

37

 Ibid 255.

41

 Ibid 329.

42

  Ibid 254, 315, 419.

39

 Ibid 256.

43

 Böckenförde 3.

36

  Ibid 325, 421.

40

10

10 

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Introduction: Constitutionality and the Weimar Crisis

The enactment of the 1871 Constitution of the German Empire coincided with statutory positivism’s complete displacement of the early nineteenth century focus on the ideal, the political, and the historical grounds of constitutional law.44 And the neo-​K antian thought of Paul Laband (1838–​1918) largely defined German statutory positivism after 1871.45 Like the Historical School, statutory positivism denied that the law had any transcendent basis in reason or nature. Statutory positivists theorized the source of valid law was the state. They theorized the state as omnicompetent and as a “unified system of relationships of will.”46 Law was the sum of the statutes posited by the state.47 The state created the matter of juridical science. The state, in turn, was the institutional means through which society expressed its will.48 The scope of the state’s will was one key difference between statutory positivism and the Historical School. For the Historical School, laws correctly posited by the state could nevertheless be invalid if those laws were incoherent with the underlying law of the nation or Volksrecht. Statutory positivists, on the other hand, looked no further than the state’s will as expressed formally through concrete institutions.49 Statutory positivists denied that law originated in any quasi-​metaphysical entity like the nation.50 The entire system of law was coextensive with what had been positively enacted, its statutes and ordinances. The source of the content of valid law was the will of the legislator, the state. The form of valid law was those legislative procedures in effect for enacting law. They believed there was no external basis to criticize the validity of law that had been enacted according to a valid procedure. Because statutory positivists theorized valid law as emerging from the will of the state, neither the constitution nor fundamental rights had any normative properties independent of that will.51 The constitution was a set of positive statutes. It determined the formal process through which the will of the state was translated into valid law.52 In other words, the constitution was the set of laws that established the framework for legislation. And, like any other law, statutory positivists argued that the constitution too was open to emendation by the will of the state when it was validly expressed, that is when it was expressed through the framework for legislation in effect. As long as the state’s will formally conformed to the procedures in effect for making or amending law, its legislative reach was in principle unlimited and it could legitimately rewrite or even abrogate the constitution.53

44

  Ibid 351, Cf. 323, 329; Caldwell 3.

45

  Loughlin 191, 214; Kennedy 61; Gusy 18; Caldwell 3; Hallowell 90.

47

 Caldwell 14.

51

  Stolleis 347; Caldwell 24, 41, 33, 36, 38.

48

 Ibid 21.

 Ibid 22.

49

  Ibid 4, 14, 16, 19; Loughlin 320.

 Caldwell 24.

52

 Stolleis 324.

46

50

  Stolleis 349; Caldwell 38.

53

 1

Positivist and Anti-Positivist Currents 

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11

Statutory positivists’ arguments about the constitution extended to basic rights. Basic rights, like any other statute, could be rewritten or abrogated by the state on the basis of a validly enacted law.54 Positivists conceived of rights through the lens of German history: rights were principally a means to limit feudal privilege and empower an independent legislative branch. Their purpose was to indicate where a statute was necessary for the state to take some action that would interfere with individuals’ freedoms.55 But with a functioning rule of law and legislature, which the statutory positivists believed the 1871 Constitution had produced, rights were unnecessary protections. In making this argument, statutory positivists limited fundamental rights’ role as a substantive protection against state power. They conceived the state’s will to be merely an extension of the will of the people.56 Statutory positivism and the Historical School were points around which nineteenth-​century jurists organized and expounded their respectively positivist and anti-​positivist theories. The theoretical core of statutory positivism was the more well-​defined of the two currents. Its tradition extended from Laband to Rudolf Stammler (1856–​1938) and Georg Jellinek (1851–​1911).57 At the turn of the century, Gerhard Anschütz inherited the mantel of Labandian positivism from Georg Meyer at Heidelberg.58 Although Stammler’s student Hans Kelsen moved well beyond Laband’s original theory, the core of his orientation was still recognizable as statutory positivism.59 A distinguishing feature of Kelsen’s thought was its completion of the purification of law begun by Gerber and Laband. Kelsen excised even the will of the state in his focus on the form of law.60 And through his purification, “the dualities of power and law . . . disappeared” and the state became identical with the “normative compulsory ordering of human relations” rather than merely acting as the law’s guarantor.61 Kelsen too concluded that any state was a Rechtsstaat if it adhered to those procedures in effect. From its nineteenth-​century origins to Weimar, the core of German statutory positivism remained fundamentally consistent. The anti-​ positivist movement had a less defined theoretical core. Nevertheless, jurists such as Lorenz von Stein (1815–​1890) and Otto von Gierke (1841–​1921) were united in their opposition to a fundamental tenet of the statutory positivists: even if law was artificial, this did not mean that either positive statutes exhausted what law was or that procedures exhausted   Caldwell 31; Stolleis 349.

54

55

 Caldwell 33.

 Stolleis 348.

56

  Caldwell 35; Hallowell 90; Gerhard Donhauser, “The State under the Rule of Law? The Relationship of State and Law in the Work of Hans Kelsen and Georg Jellinek” in Ian Bryan, Peter Langford, and John McGarry (eds), The Reconstruction of the Juridico-​Political: Affinity and Divergence in Hans Kelsen and Max Weber (Routledge 2016) 127–​30. 57

59   Caldwell 44; Kennedy 75.  Hallowell 91.   Stolleis 344, 440; Caldwell 5; Hallowell 95.    61 Stolleis 440.

58 60

12

12 

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Introduction: Constitutionality and the Weimar Crisis

the terms of legal validity.62 Anti-​ positivists combined features of the Historical School with other juridical approaches, such as Hegel’s, to defend a non-​transcendent source of the law that was nevertheless more than statute, will, and procedure. Another defining feature of this movement was the conceptualization of the state in organic terms. As a student of Gierke, Hugo Preuß (1860–​1925), the principal writer and architect of the Weimar Constitution, was one of the most visible heirs of this tradition in the early twentieth century.63 Preuß too expounded an organic theory of the state and conceived of law as ultimately deriving from “the people.” Kühne argues that Weimar’s National Assembly sided with the theoretical tradition of the Historical School by conceiving of the people organically, as a Volksgeist, in the construction of the constitution.64 Preuß and Naumann were concerned about conceiving of “the people” as an aggregate of individuals because they worried that, following the radical expansion of political enfranchisement, democratic procedures and outcomes could be destabilizing. Accordingly, Weimar’s political institutions were intended to play an educational role and dynamically incorporate individual voters into an organic whole. These positivist and anti-​positivist currents carried over into debates in the Weimar Republic in the 1920s, where they developed into a full methods and orientation dispute.65 Statutory positivism retained its methodological predominance in the Weimar Republic. Its theoretical predominance translated into a real practical impact as well. For example, the Reichsgericht (Highest Federal Court) tended to adjudicate disputes in public law on the basis of statutory positivism.66 And the center-​left SPD tended to align with the statutory positivists. Weimar’s positivists included Gerhard Anschütz, Richard Thoma (who had taken over Jellinek’s chair at Heidelberg), Karl Loewenstein, Walter Jellinek, and Hans Kelsen.67 Like their predecessors, they believed that valid law consisted in the formal procedures for enacting the will of the state into law.68 62

  Ibid 337ff, 380ff; Caldwell 14.

 Stolleis 330; Caldwell 40, 122; Cf. Carl Schmitt, On the Three Types of Juristic Thought ( Joseph W. Bendersky tr, Praeger Publishers 2004) 109. 63

  Jörg-​Detlef Kühne, “Demokratisches Denken in der Weimarer Verfassungsdiskussion—​Hugo Preuss und die Nationalversammlung” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 118–​19, 130–​1. 64

65

  Stolleis 352, 440; Friedrich.

  Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 24–​5. 66

67

  Michael Stolleis, A History of Public Law in Germany, 1914–​1945 (Oxford University Press 2004) 66, 186.

  Kennedy 135. See e.g. Hans Kelsen, “Who Ought to be the Guardian of the Constitution?” in Lars Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press 2015) 188–​9, 208–​9; Cf. Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford University Press 2007) 16ff, 86ff. 68

 13

Positivist and Anti-Positivist Currents 

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13

Weimar statutory positivists continued to equate state will with law (Recht). They did not recognize any other sources of valid law. As Heimes puts it, for the statutory positivists, the state produced its own validity; instead of legality being generated by legitimacy, legitimacy was generated by legality.69 Valid law was whatever was posited by the legislator. Weimar statutory positivists continued to separate the formal procedures for enacting law from the content of law, arguing that only satisfying procedural requirements mattered for determining valid law. For example, Vinx describes how Kelsen believed that valid legal norms “must be fully dissociated from any normative evaluation of the content of that norm.”70 The defining change introduced by the Weimar Constitution was that the legislator had become “the people,” mediated by parliament. Meyer argued that the power of state authority had become a democratic possession.71 Anschütz and Thoma argued that the state represented the people’s “basic decision” for democracy.72 Anschütz wrote that Germany had (finally) participated in democracy’s “triumphal march” and the democratically legitimated will of the state reigned supreme.73 Özmen shows that Kelsen held a similar view, writing that for Kelsen “there cannot be a common interest (volonté générale) over and above individual and group interests, excluding even a consensus in the sense of volonté de tous . . .”74 In sum, for Weimar’s statutory positivists, Weimar’s politically “active citizenry” was the visible expression of the will of the state and was the normative foundation of all state power.75 Its political institutions organized the will of the people by establishing procedures and mechanisms through which individual wills could be aggregated and expressed as validly enacted law.76 Weimar’s positivists insisted that, when it was properly organized, the expressed will of the people was in principle substantively unlimited.77 Kelsen, Vinx writes, argued that the people were “subject to nothing but their own will” and the legislative authority of the democratic state was unlimited.78 A democratic constitution merely provided “an open framework for the ongoing renegotiation   Claus Heimes, Politik und Transzendenz: Ordnungsdenken bei Carl Schmitt und Eric Voegelin (Duncker & Humblot 2009) 45–​6; Cf. Hofmann 24–​5. 69

  Vinx 30, Cf. 67ff.

  Hofmann 25–​6.

70

71

 Caldwell 66.

72

  Gerhard Anschütz, “Three Guiding Principles of the Weimar Constitution” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2002) 144. 73

  Elif Özmen, “Democracy within Pluralism: Hans Kelsen on Civil Society and Civic Friendship” in Ian Bryan, Peter Langford, and John McGarry (eds), The Reconstruction of the Juridico-​Political:  Affinity and Divergence in Hans Kelsen and Max Weber (Routledge 2016) 53. 74

  Caldwell 68–​9.

75

 Anschütz 147.

76

  Walter Pauly, “Introduction to Gerhard Anschütz” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2002) 129. 77

  Vinx 104–​14.

78

14

14 

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Introduction: Constitutionality and the Weimar Crisis

of the identity of the community.”79 Positive law and democracy were intimately linked. For Weimar’s statutory positivists, the principal site for the organization of the will of the people was parliament.80 Kelsen linked popular sovereignty to parliament through rights of participation and argued parliament was “the formation of the governing will of the state according to the majority principle through a collegial organ elected by the people on the basis of a universal and equal right to take part in the full electoral process—​that is democratically.”81 Framing his argument in terms of epistemological and metaphysical relativism, Kelsen argued that Weimar’s parliamentary democracy, like in any democratic state, was “only a form” for creating social order whose expressed content could not be predetermined.82 Parliamentary democracy had to “respect equally any political belief, any political opinion, which is after all expressed by the political will.”83 And Kelsen’s state was, as Lindahl argues, nothing more than the legal order.84 Weimar’s statutory positivists also argued the power of the people to revise the law extended into the state and constitution themselves.85 Led by Anschütz, they argued that the constitution could not stand above the will of the people. The core of the Weimar Constitution was Article 76, which governed constitutional amendment and whose range was principally unlimited.86 With reference to its power to rewrite the constitution, Thoma described the ideal of democratic self-​determination as “daring, perhaps, but sublime in its logical consistency.”87 Embracing its full implications, he argued that “from the standpoint of democracy and liberalism, from which interpretation must begin, it would be impossible to evaluate what the resolute and undoubted majority of the people wills and decides in a legal way as a coup d’état or rebellion, even if it subverts the basic pillars of the present Constitution!”88 So even if a majority becomes despotic and “offends some interest and quashes some contrary opinions” of a minority, Thoma believed it is still the only justifiable form of state in light of the alternative: the despotism of a minority of “privilege-​based and authoritarian states.”89 Kelsen echoed Thoma’s democratic sentiment, arguing that there was no justifiable 79

 Ibid 166.

  Caldwell 69, 155.

80

  Hans Kelsen, “On the Essence and Value of Democracy” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2002) 96. 81

  Ibid 106–​7; Cf. Lindahl 39; Vinx 26.

83

 Lindahl 40.

86

82 84

 Caldwell 69.

85

  Kelsen, “On the Essence and Value of Democracy” 108.

  Korioth 512–​13.

 Richard Thoma, “The Reich as Democracy” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar:  A  Jurisprudence of Crisis (University of California Press 2002) 159, 164; Peter C. Caldwell, “Introduction to Richard Thoma” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2002) 153. 87

 Thoma 163.

88

 Ibid 170.

89

 15

Positivist and Anti-Positivist Currents 

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15

basis to limit the will of the people even when it seemed to be suicidal. He wrote that a democrat “must remain true to his colors, even when the ship is sinking, and can take with him into the depths only the hope that the ideal of freedom is indestructible and that the deeper it has sunk, the more passionately will it revive.”90 Weimar’s statutory positivists were remarkably consistent in their opposition to any limits to the power of the people to enact their will, including the power to turn that will against even those constitutional statutes enabling democracy itself. Weimar statutory positivists tended to conceive of rights differently from how they are conceived today. Anschütz argued rights were a protection against the state administration but not against popular sovereignty itself; “the people” had the right and power to rewrite their basic rights however they willed.91 Any potential threat coming from the people was thought to be mitigated by the implicit identity between individual rights-​bearers and that democratic people. Thoma argued that no institution besides a democratically elected parliament had the competence to interpret basic rights.92 Weimar’s statutory positivists tended to frame the dialectic of democracy and basic rights within the context of the struggle against feudal privilege, which saw rights as superfluous in the presence of a functional democratic legislature. As the democratically elected representative of the people and the visible expression of the state’s will, parliament had the final say over what rights meant and whether a right should be written into (or removed from) the constitution. Rights were presumed to be secure in this arrangement because the guardian of rights was also their bearer.93 And, Thoma argued, there could be no rights prior to the constitution. Rights were whatever a present will (the product of democratic elections of parliamentarians) willed them to be.94 Weimar positivists rejected the argument that rights could trump the will of the people. Here too, basic rights were conceived of as merely a set of constitutional statutes that could be altered at will.95 The solution statutory positivists would offer to Hindenburg in the above dilemma is clear in light of their theoretical commitments. Hindenburg’s oath to defend the constitution entailed a duty to uphold all 181 articles of the Weimar Constitution because all 181 articles were validly enacted statutes.96 As Kelsen put it, the Reichspräsident’s oath made him into a “guardian   Hans Kelsen, “Die Verteidigung der Demokratie.” Cited by Clemens Jabloner, “Introduction to Hans Kelsen” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2002) 74. 90

 Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law 74.

91

 Ibid 77.

92

 Stolleis, A History of Public Law in Germany, 1914–​1945 186; Vinx 115, 127–​8.

93

 Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law 77–​8; Vinx 129, 131ff.

94

 Stolleis, A History of Public Law in Germany, 1914–​1945 91–​2.

95

96

  Berthold 31; Korioth 511–​14.

16

16 

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Introduction: Constitutionality and the Weimar Crisis

of the statute.”97 To allow one article to be violated would be to fail his oath. This included respecting a vote of no confidence by a Nazi and Communist majority, their annulment of his emergency decrees and ordinances, or their validly enacted amendments to the constitution.98 There was no objective basis by which Hindenburg could distinguish the validity of a party’s goals aside from its procedural legality.99 The theoretical commitments of statutory positivism led to the affirmation that “yes, the people could legally revolutionize the constitution.” Weimar’s anti-​positivists also built on nineteenth-​century jurisprudence. They included Rudolf Smend, Erich Kaufmann, Karl Bilfinger, Heinrich Triepel, Otto Koellreutter, Gerhard Leibholz, and Hermann Heller.100 The anti-​positivists continued to distinguish valid law from positive law and denied any simple or necessary identity between the two. And while democratic procedures were the source of legal validity for Weimar’s positivists, Weimar’s anti-​positivists understood democratic procedures to potentially be an obstacle to valid law. They believed that democratization had accelerated the fetishization of positive law by privileging the present and visible will of the people. Weimar’s anti-​positivists were alarmed by the potential for the newly enfranchised German “masses” to become tyrannical—​especially in the wake of right-​and left-​wing populist uprisings following the end of World War I. Weimar anti-​positivists attempted to deduce a super-​positive theory of law without resorting to a naturalistic metaphysics in order to limit mass democracy.101 They theorized foundational principles of the law above and beyond the reach of “the ‘vacillating mind’ of the masses” by invoking “objective-​ idealistic principles” and testing the coherence of the beliefs held by real individuals against the “authentic” will of the German people.102 In doing so, anti-​positivists aimed to show that a “value order” transcended “visible,” positively enacted law and that the acts of constituted powers, such as parliament, were valid only insofar as it cohered with the principles of that value order. For example, Kaufmann argued that although the state created legal statutes (Gesetz), both the state and those statutes were valid because they stood under Recht.103 Statutes did not exhaust the ways the law (Recht) could be expressed. These higher principles implied substantive normative limits to constitutional change, no matter how popular such change might be. 97

  Kelsen, “Who Ought to be the Guardian of the Constitution?” 214.

99

  Ibid 52–​3.

 Berthold 62.

98

 Stolleis, A History of Public Law in Germany, 1914–​1945 186; Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law 7, 77; Cf. Kennedy 40ff, Cf. 172, 33.

100

 Heimes 45–​ 6.   102 Stolleis, A History of Public Law in Germany, 1914–​1945 68.

101

 Korioth 520.

103

 17

Situating Schmitt within the Anti-Positivist Current 

• 

17

The anti-​positivists found the source for those principles in the “value-​ establishing basic rights part” of the Weimar Constitution, which they argued stood opposed to and above its “value-​neutral, organizational first part.”104 It was this second part, they argued, that expressed the authentic will of the German people—​the Volksrecht of Weimar. And in opposing both statutory positivism and democracy, the anti-​positivists defended the priority of the Second Principal Part of the Weimar Constitution over the First Principal Part, basic rights over democracy. They saw “basic rights as a reservoir of values rendered positive by the constitution” and thus conceived of Weimar’s Constitution, or at least those core values, as somehow existing prior to its positive written constitution.105 After almost a century of debate about the nature of valid law and over a decade after the advent of mass democracy in Germany, this methodological dispute became practically significant as a crazy situation developed. As populist revolutionary parties on the right and left adopted Lenin’s plan of seeking a democratic mandate to legally revolutionize Weimar’s liberal democratic institutions and write the constitution out of existence, Weimar’s left-​leaning positivists argued that nothing could limit the legally expressed will of the people, while Weimar’s right-​leaning anti-​positivists countered that Weimar’s basic rights defined absolute limits to democratic will and by extension the capacity of those parties to effect constitutional change.

3.  situating schmitt within the anti-​p ositivist current Although Carl Schmitt receives substantial attention for his sensational writings, he was above all a jurist.106 In Weimar, he was a recognized expert of constitutional law.107 He also practiced it. Schmitt advised von Schleicher’s planning staff on constitutional ways to prevent Hitler’s assumption of power and he defended the state in the infamous Preußen contra Reich trial. Throughout Weimar’s final years, Schmitt was preoccupied by the possibility of a Nazi or Communist “cold” revolution and his writings consistently returned to constitutional mechanisms to prevent one.108 Within Weimar’s methods and orientation dispute, Schmitt falls under the anti-​positivist current. Already in Weimar, Kelsen characterized Schmitt as a “natural lawyer” because of his opposition to statutory positivism.109

 Stolleis, A History of Public Law in Germany, 1914–​1945 92.

  Ibid 186, Cf. 162.

104

  Cf. Hofmann III; Kervegan, 1988 #800; Maus 125.

106

105

  Hofmann XV; Berthold 13.

107

  Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) XII–​XVII. 108

  Kelsen, “Who Ought to be the Guardian of the Constitution?” 218–​19.

109

18

18 

• 

Introduction: Constitutionality and the Weimar Crisis

Hofmann has argued that Schmitt’s juridical thought must be understood through its opposition to statutory positivism.110 Throughout his career as a jurist, from prior to World War I through the Bonn Republic, Hoffman notes, Schmitt wrote as a statist conservative opposed to the “contentless functionalism” of statutory positivism and its equation of legalism with legitimacy—​ against which he theorized a super-​personal idea of the state accompanied by a form of quasi-​natural law.111 Hoffman identifies Schmitt’s role in the natural law theory renaissance that occurred after 1945.112 Maus also situates Schmitt within the anti-​positivist current. She argues how Schmitt reflected the current’s broader consensus that, by introducing relativism into the public legal order, statutory positivism had endangered the state.113 He believed that statutory positivism had inadvertently opened the door to legal forms of constitutional suicide. Maus notes how for fifty years, Schmitt lamented the decline of the state and sought to reinvigorate it on a foundation of “natural law without naturalism.”114 Kervegan also analyzes how Schmitt transplants Hegel’s criticism of Kantian formalism but modified by Weberian categories and concerns in order to criticize neo-​K antian statutory positivism.115 In his seminal History of Public Law in Germany, Stolleis situates Schmitt in the anti-​ positivist current he identifies in Weimar jurisprudence.116 Important English studies of Schmitt also discuss Schmitt’s anti-​positivism. McCormick writes that, “to appreciate fully Schmitt’s enterprise one needs to see more clearly” his criticism of the infiltration of “the technological” in modern thought—​which Schmitt “often equates with the economic and the positivistic.”117 Similarly, Kennedy argues that the core of Schmitt’s early thought was shaped by fin-​de-​siècle literary and theological movements that criticized the spirit of the time’s deification of form over content.118 Both Kennedy and McCormick frame Schmitt’s thought within the broader framework of early twentieth-​century German cultural pessimism. In their penetrating analyses of Schmitt, both Dyzenhaus and Scheuerman analyze Schmitt more narrowly from the perspective of juridical anti-​positivism. Dyzenhaus rightly argues that when Schmitt uses the term “liberalism,”  Hofmann XVII.

110

  Ibid IV, XIII–​XIV, 17, 78–​9.

111

 Ibid IV.

112

 Maus, Bürgerliche Rechtstheorie und Faschismus XII–​XVII, 27; Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory” 135, 137–​8. 113

 Maus, Bürgerliche Rechtstheorie und Faschismus 30.

114

  Jean-​François Kervegan, “Politik und Vernünftigkeit Anmerkungen zum Verhältnis zwischen Carl Schmitt und Hegel” in Helmut Quaritsch (ed), Complexio Oppositorum:  Über Carl Schmitt (Duncker & Humblot 1988) 373, 383–​4. 115

 Stolleis, A History of Public Law in Germany, 1914–​1945 186.

116

 John P. McCormick, Carl Schmitt’s Critique of Liberalism:  Against Politics as Technology (Cambridge University Press 1997) 4–​5. 117

 Kennedy 40.

118

 19

Situating Schmitt within the Anti-Positivist Current 

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19

he tends to mean the positivist equation of the will of the state with positive law, and by extension legitimacy.119 Scheuerman discusses Schmitt’s criticism of (statutory) positivism’s inability to distinguish between the essential and accidental features of the constitution.120 Scheuerman also argues that Schmitt’s criticism of statutory positivism draws from nineteenth-​century theories of natural law.121 Yet both thinkers ultimately conclude that, despite his criticisms, Schmitt was just a different type of positivist. They argue that Schmitt reproduced the flaws he identified in statutory positivist formalism without any of its virtues when he reduced law to an expression of sovereign will and power.122 Cristi argues that natural law-​like arguments play a large but often overlooked role in Schmitt’s juridical thought.123 Lindahl writes that Schmitt believed positive law rested on and presupposed a super-​positive political foundation.124 Law was greater than the positive law. Schmitt was, as Vinx argues, concerned to reestablish the connection between law and “meta-​legal” or meta-​juridical phenomena.125 On this basis, Vinx rightly emphasizes how Schmitt believed legal order transcended positive legal order and violations of positive law could be undertaken for the sake of that higher legal order.126 One can see that there is broad agreement that Schmitt was, on the one hand, an anti-​positivist and, on the other, that he believed valid law rested on an at least quasi-​natural law foundation. Studies also link Schmitt’s juridical orientation to nineteenth-​century anti-​ positivist jurisprudence. In an analysis of Hugo Preuß’ state theory, Schmitt himself not only offers a flattering depiction of Preuß, but he sets up subtle parallels between his thought and the organic state theories of Preuß, Gierke, and von Stein.127 Hofmann argues that Schmitt focused on the nineteenth century and the crisis of the bourgeoisie to formulate his own solutions to   David Dyzenhaus, Legality and Legitimacy:  Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford University Press 1997) 39, 44. 119

  William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 65, Cf. 62ff. 120

 Ibid 68.

121

  Dyzenhaus 67, 84; Scheuerman 68ff.

122

  Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (University of Wales Press 1998) 69ff. 123

  Lindahl 44–​5.

124

  Lars Vinx, “Carl Schmitt’s Defense of Sovereignty” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 96–​7. 125

  Ibid 103 (see footnote 18). Vinx translates Schmitt’s remarks from Political Theology as “since the state of exception is still something other than a mere anarchy or chaos, an order in the juristic sense still exists, though not a legal order.” Vinx’ translation is extremely helpful in clarifying what exactly the nature of the exception is (an exception of positive law) and that it does not mean the suspension of order entirely—​a distinction that much of his legal thought will be shown to turn on. 126

  Carl Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre ( J.C.B. Mohr (Paul Siebeck) 1930). 127

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the twentieth century problem of mass democracy and the dissolution of the state.128 Kennedy and Maus both note how Schmitt constructs subtle parallels between himself and Savigny that allow his readers to connect Savigny’s criticism of codification to Schmitt’s criticism of positivism.129 Maus suggests that Schmitt’s concrete order thinking is derivative in some way of Savigny’s theory of the existential source of Recht [existentielle Rechtsquellenlehre].130 She suggests affinities between Schmitt’s thought and the nineteenth century tradition of Volksrecht and Volksgeist. Ulmen argues that Schmitt combined anti-​positivism, neo-​Hegelianism, the Historical School, sociological jurisprudence, and organic state theory to produce his own political and legal theory.131 Bendersky also suggests the lineage in a remark to Schmitt’s On the Three Types of Jurisprudence.132 Mehring too situates Schmitt within the “organic state theory” current, opposite the “mechanistic-​normative” state theory current predominant in Weimar.133 Finally, Bhuta argues Schmitt’s thought emerges out of the “long nineteenth century” tradition of German state theory.134 Bhuta writes that Schmitt was a theorist who understood law and state “concretely” in a sense derivative of the German Historical School, for whom “the authority of the state and law is always a concrete authority, anchored in a social whole.”135 Apparent tensions within Schmitt’s thought can be resolved by situating Schmitt within this Weimar’s broader methods and orientation conflict and emphasizing his quasi-​natural law orientation. When—​as had occurred in Weimar—​only positive laws were recognized as valid law, Schmitt’s theoretical solutions would appear arbitrary and irrational, especially his theory of dictatorship or his arguments about exceptions to positive legal order. Schmitt did not see them that way. Exceptions to positive legal statutes were justified, he believed, because positive law itself was justified instrumentally. It was a means to realize and normalize a system of right. But positive law was only one mechanism among others. If it failed to realize order or even became a source of disorder, other legal mechanisms and institutions might become necessary and justified in assuming its role. Schmitt challenged the theoretical validity and practical consequences of statutory positivism and  Hofmann XV.

128

  Kennedy 33; Maus, Bürgerliche Rechtstheorie und Faschismus 122–​3; McCormick 293ff; Cf. Carl Schmitt, “The Plight of European Jurisprudence” (1990) 83 Telos 35, 56–​9. 129

 Maus, Bürgerliche Rechtstheorie und Faschismus 122–​3.

130

  Ulmen 10–​11.

131

 Schmitt, On the Three Types of Juristic Thought 109, Cf. 79–​80, 110.

132

  Reinhard Mehring, Carl Schmitt: A Biography (Polity 2014) 224ff.

133

  Nehal Bhuta, “The Mystery of the State: State-​Concept, State-​Theory and State-​Making in Schmitt and Oakeshott” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 11. 134

  Ibid 15; Cf. Böckenförde 19–​20.

135

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refused to frame his state and constitutional theory within that methodology and orientation. And his thought cannot be fully understood without its context within that juridical methodology. The political, state, sovereign, dictator, constitution—​Schmitt theorized all within this anti-​positivist current. And this book will highlight how that orientation affects the meaning of Schmitt’s well-​known concepts. An important apparent issue to clarify in Schmitt’s thought is his relationship to liberalism. Schmitt is often characterized as “vehemently” illiberal and, less often, as some form of democrat, including by McCormick, Kennedy, Scheuerman, and Dyzenhaus.136 In fact, if there is any overwhelming consensus within the literature on Schmitt today, it is that he was profoundly anti-​liberal. Yet there is a deep ambiguity about what “liberalism” meant exactly to Schmitt. And I  will argue that it is far from clear that Schmitt is best characterized as illiberal. Others have already challenged this depiction. Hofmann, tellingly, notes that Schmitt is as often liberal as he is illiberal.137 Cristi and Urbinati have also challenged categorizing Schmitt as anti-​liberal.138 As Chapter 6 discusses, Schmitt’s attitude toward basic rights and democracy conforms to Weimar’s anti-​positivist current. Like other anti-​ positivists, Schmitt repeatedly insisted that the substantive super-​positive  Jan-​Werner Müller, “Carl Schmitt and the Constitution of Europe” (1999–​2000) 21 Cardozo Law Review 1777, 1781; Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge University Press 2008) 124; Cf. 14, 82, 127, 141; John P. McCormick, “Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” (1994) 22 Political Theory 619, 644–​5, 647; Scheuerman 255; Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford University Press 2003) 229–​31; Duncan Kelly, “Carl Schmitt’s Political Theory of Representation” (2004) 65 Journal of the History of Ideas 113, 133–​4; McCormick, Carl Schmitt’s Critique of Liberalism 5–​6; Jürgen Habermas, “Sovereignty and the Führerdemokratie” The Times Literary Supplement (London, September 26, 1986) 1053–​54; Jan-​Werner Müller, A Dangerous Mind: Carl Schmitt in Post-​War European Thought (Yale University 2003) 1ff; Ulrich K. Preuss, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution” in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press 1994) 154; Ellen Kennedy, “Introduction: Carl Schmitt’s Parliamentarismus in its Historical Context” in The Crisis of Parliamentary Democracy (The MIT Press 1988) xxxv–​xxxvi; Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (The MIT Press 1992) 232, 237–​40; Chantal Mouffe, The Return of the Political (Verso 1993) 121; Emanuel Richter, “Carl Schmitt: The Defective Guidance for the Critique of Political Liberalism” (1999–​2000) 21 Cardozo Law Review 1619, 1631; Dyzenhaus 38; John P. McCormick, “Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’s Legality and Legitimacy” in Jeffrey Seitzer (ed), Legality and Legitimacy (Duke University Press 2004) xlii; Jeffrey Seitzer, “Carl Schmitt’s Internal Critique of Liberal Constitutionalism: Verfassungslehre as a Response to the Weimar State Crisis” (1997) 10 Canadian Journal of Law and Jurisprudence 203, 203–​5; David Boucher, “Schmitt, Oakeshott and the Hobbesian Legacy in the Crisis of Our Times” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 128. 136

 Hofmann 7.

137

  Cristi 54–​5; Nadia Urbinati, “Schmitt’s Critique of Liberalism” (1999–​2000) 21 Cardozo Law Review 1645, 1647, 1649. 138

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Introduction: Constitutionality and the Weimar Crisis

core of the Weimar Constitution consisted in its commitment to basic rights. Insofar as we understand a commitment to basic rights to be a form of liberalism, Schmitt cannot be neatly categorized as anti-​liberal. Schmitt used the substantive value commitments he argued the Weimar Constitution was based on in order to criticize its democracy. As Chapter 1 discusses, some thinkers today read a theory of democracy out of Schmitt’s work. That chapter will argue that it is extremely difficult to categorize Schmitt as any sort of democrat, at least according to today’s understanding of the concept. Schmitt’s anti-​positivist orientation sheds light too on why. He criticized the claim that valid law was coextensive with whatever statutes had been posited by state institutions, that valid law was simply whatever the majority of Germans willed at a given moment. He described this conception of legal validity as empty functionalist value neutrality.139 Functionalism to emphasize the intersection of positivism and democracy, which he characterized as the evolution of the “I want this, I command this” root of a positively expressed will into “law is what the people command.” Value-​neutrality to emphasize its agnosticism toward the values expressed by that will. Still consistent with the anti-​positivist current, Schmitt criticized how Weimar’s parliamentary democracy turned the legislative process into a mechanical procedure for validating the arbitrary and vacillating will of the German electorate. It turned will, in this case the will of the masses, into valid binding law. But, Schmitt objected, will had no necessary relationship to right and a democratic majority could be just as tyrannical as any other form of government. Schmitt argued that this theoretical orientation had “relativized” the constitution. The driving force behind constitutional relativization was the implicit argument that the constitution was defined by Article 76, the article of the Weimar Constitution governing constitutional amendment. Scheuerman writes that, because of their emphasis on Article 76 and democratic legal change, Schmitt thought statutory positivism “unwittingly equips illiberal political forces with a real opportunity for destroying the final remnants of liberal normativism.”140 Roth argues that Schmitt’s late Weimar writings anticipated the later events and dissolution of the Weimar Republic and had preemptively warned about the consequences of the statutory positivist interpretation of the constitution when it was combined with formal democratic legitimation.141 Indeed, Schmitt believed Weimar’s statutory positivists had overlooked how a state organized around a relativistic commitment   Cf. Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 28, 30, 42, 45.

139

 Scheuerman 65.

140

  Klaus Roth, “Carl Schmitt—​ein Verfassungsfreund? Seine Stellung zur Weimarer Republik in der Phase der relativen Stabilisierung (1924–​29)” (2005) 52 Zeitschrift für Politik 141, 155. 141

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to value-​neutrality necessarily presupposed a shared commitment to those values—​a state without enemies. But Weimar had enemies. The Nazis and Communists were ready to take advantage of the consequences of the relativized constitution and turn legalism into a weapon of civil war. And statutory positivism did nothing to prevent, if it did not also pave the way for, the dissolution of the Weimar state.142 The political instability that the prevailing statutory positivist orientation enabled troubled Schmitt. But he also understood that instability to be a symptom of the broader problem of rationalization and disenchantment.143 Without any connection to substantive right, democracy had become justified for its own sake. Similarly to how capitalism and bureaucracy had become rationalized and self-​serving institutions, “modern mass” democracy had been rationalized and ceased to serve any substantively rational end. Cut off from right, democracy could become a power dominating its constituents. Instead of reconciling social disagreements through public reason, it exacerbated internal divisions and it aggravated and politicized tensions between factions. To solve these problems, Schmitt theorized a source of legal validity both grounded in a substantive system of value and beyond the reach of democratic procedures and constitutional change. Like other anti-​positivists in Weimar, Schmitt argued that valid law, especially the constitution, was the product of more than mere will and procedure. His claim is expressed most clearly in a defining feature of his 1928 Constitutional Theory, the distinction between constitution and constitutional law.144 Against the “relativized” theory of the constitution, Schmitt argued the value commitments laid out in the constitution’s Second Principal Part, the “Basic Rights and Duties of Germans,” defined the substantive reason of the Weimar state. The heart of those value commitments were basic individual rights that, Schmitt argued, established an individual’s negative status within the state. And he believed this “Absolute” Constitution offered a path to re-​enchant the state, at least partially, and offered a basis to resist the pathologies of modern mass democracy. The Absolute Constitution established absolute limits to the use of Article 76 to change the constitution. Its commitments denied the legitimacy of the formally legal but substantively unconstitutional goals of parties like the NSDAP and KPD. By theorizing the constitution in this absolute sense, Schmitt believed he had provided a basis to unambiguously define the values and goals of the Weimar Constitution. Parties and movements seeking to revolutionize Weimar’s Absolute Constitution could, by extension, be defined as its enemies and deemed unconstitutional. And indeed  Korioth 514.   143  Cf. Hofmann 79.

142

  Ibid 126; Korioth 521; Cf. Schmitt, Constitutional Theory 59–​74.

144

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Schmitt vocally criticized the KPD and NSDAP as enemies of the Weimar Constitution.145 Under no circumstances, Schmitt argued, should either party be granted the “political premium of the legal possession of power”—​which in the case of the Chancellorship and the cabinet included a foothold to the presidency, authority over the police and the military, the power to dissolve the Reichstag, and govern without constitutional checks and balances before the Reichstag could reconvene.146 Schmitt believed his state and constitutional theory solved Hindenburg’s Oath Trauma while also demonstrating the shortcomings of the statutory positivist alternative. The Reichspräsident’s oath to defend the constitution included identifying threats from enemies, foreign and domestic, and responding appropriately. Schmitt believed his theory of the Absolute Constitution justified grasping the first horn of the dilemma and taking action against those enemies. And Schmitt outlined several constitutional mechanisms that could be employed in conjunction with the president’s Article 42 oath in order to do so. Besides his arguments that the Absolute Constitution defined implied limits to the exercise of Article 76, determining aspects of the constitution that were legally unalterable, and that the Absolute Constitution offered a potential basis for party bans, Schmitt also argued that the Reichspräsident had a right to refuse to recognize a vote of no confidence that outlined no positive solution.147 Ignoring a negative, unconstructive exercise of Article 54 in these circumstances was consistent with defending the constitution as a whole. Hofmann has argued that the scholarly recognition of impact of Schmitt’s theory on the Bonn Grundgesetz is underdeveloped.148 This includes Schmitt’s argument for restrictions on the vote of no confidence, his theory of basic rights, and his defense of limitations on constitutional change. Hofmann adds Schmitt’s distinction between constitution and constitutional law must have shaped the Bonn understanding of the centrality of basic rights as well as Articles 67 and 79.3. Recently, in two extremely illuminating works, Berthold has established Schmitt’s efforts to combat the abuse of Article 54 in Weimar and its theoretical impact on the development of Article 67 in Bonn.149 This book examines that foundation and also looks at how the mechanisms outlined in the above paragraph are the foundation for a theory of constrained democracy, better known today as militant democracy. By framing Schmitt’s thought within this broader anti-​positivist current, this book challenges the prevailing interpretation that Schmitt was   Hofmann 89; Roth 141–​4.

  Hertweck, Kisoudis, and Giesler 70.

145

  Berthold 58, 61–​2.

147

146

 Hofmann III.

148

 Lutz Berthold, “Das Konstruktive Misstrauensvotum und seine Ursprünge in der Weimarer Staatsrechtslehre” [1997] 36 Der Staat 81. 149

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vehemently illiberal. Schmitt resists this simple categorization and to conceive of him simply as an illiberal (or as some form of democrat) obscures how multifaceted his state and constitutional theory actually was. Schmitt defended the authority of the state and constitution against subversion from below by elevating the legal status of basic rights over and against the will of the people. This is one of the main axes around which his state and constitutional theory turns. And by reevaluating his relationship to basic rights and democracy in these terms, this book will show what Schmitt can theoretically offer liberal democrats today.

4.  schmitt’s theoretical contributions versus schmitt “the man” When Hitler was sworn into office on January 30, 1933, Schmitt’s close friend Johannes Popitz advised him that he too—​as von Schleicher already had—​ must “disappear” from politics.150 Notoriously, Schmitt did not disappear from politics at all. Despite having openly condemned the Nazi party in the late years of the Weimar Republic, Schmitt quickly changed tack after Hitler took power. He embraced his former enemy and on May 1, 1933 became the 2,098,860th member of the Nazi party.151 This decision led to the most despicable moments of Schmitt’s life, which included justifying acts committed by the Nazi state and the explicit incorporation of anti-​Semitism into his published writings, including into his “third most important book,” The Leviathan in the State Theory of Hobbes. His failure to disappear from politics and his subsequent acts tainted his reception for generations and continues to affect how he is read today. Any serious study of Schmitt’s thought must grapple with two serious challenges Schmitt presents. First, Schmitt was an anti-​Semite, he was a member of the Nazi party, and from 1933–​1936 he defended the Nazi regime juridically. Because Schmitt’s work is inherently political and legal and because after 1933 he incorporated anti-​Semitism and support for the Nazi state explicitly into his work, these values appear inextricable from his juridical thought. Second, Schmitt has been accused of being a political occasionalist. Occasionalism was a charge Schmitt himself leveled against “political romantics,” arguing they had subjectified and politicized Malebranche’s philosophical occasionalism.152 Schmitt’s political occasionalist sees “the world [as] nothing more   Hertweck, Kisoudis, and Giesler 87ff. Popitz, Schmitt reports, said “Jetzt müssen Sie von der Bildfläche verschwinden.” 150

  Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton University Press 1983) 204.

151

  Guy Oakes, “Introduction to Political Romanticism” in Political Romanticism (Transaction Publishers 2011) xix. 152

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than an occasion for the free play of the individual imagination.”153 The political occasionalist lacked existential commitments and was interested only in what was immediately present. Occasionalism, Schmitt believed, was a political problem because it first relegated political decisions to individuals and second denied the need to commit to any decision in a lasting way, both factors that Schmitt thought destabilized public order. To be charged as an occasionalist himself could be a devastating ad hominem charge. As a denial of any underlying coherence to Schmitt’s thought, it suggested his concepts and ideas might be politically unserious. Regarding the first challenge, Hofmann argued decades ago that Schmitt’s anti-​Semitism has been firmly established.154 More recently, Mehring has proven that anti-​Semitism was far more than merely an opportunistic way for Schmitt to ingratiate himself with the Nazi regime after 1933. Schmitt expressed anti-​Semitism long before he joined the Nazi party, even if it was initially complicated by “philo-​Semitic” inclinations.155 Schmitt’s anti-​Semitism became “fervent” under the Nazi state.156 And during the early years of the Nazi regime, Schmitt attempted to leverage recognition of his expertise in constitutional theory to sit in what he called “the antechamber of power.” His efforts included theorizing the Third Reich and defending its controversial early acts, including the Night of the Long Knives and the Enabling Act.157 Schmitt was also close to the convicted war criminal Hans Frank, Hitler’s personal lawyer and Nazi Germany’s chief jurist.158 So, although the precise nature of Schmitt’s commitment to Nazism and Anti-​Semitism might be debated, it is beyond any doubt that Schmitt committed to both values. And afterwards he was steadfastly unapologetic about that commitment. Regarding the second challenge, Karl Löwith accused Schmitt of occasionalism in two distinct ways:  conceptually and biographically.159 Others have taken up Löwith’s accusation and charged Schmitt as being “deliberatively unsystematic.”160 Schmitt is described as a conceptual occasionalist because he placed “the decision” at the center of his political and juridical thought. Insofar as Schmitt defined the decision as an arbitrary act of sovereign will, it was difficult to see how Schmitt had not opened a window to the same “free play of the imagination” that he argued compromised political romanticism. Even if the power to play freely was concentrated in “the sovereign,” this  Ibid xx.

153

  Ibid 305, 321–​3.

157

  Hofmann XXVI–​XXVII.

154

  Mehring 53, 60.

155

 Ibid 343.

156

  Ibid 300, 342, 419.

158

  Karl Löwith, “Max Weber und Carl Schmitt” (2007) 2 Zeitschrift für Kulturphilosophie 365.

159

  Dyzenhaus 41; Jerry Z. Muller, “Introduction to Carl Schmitt, ‘When Parliament Cannot Be Sovereign’” in Jerry Z. Muller (ed), Conservatism: An Anthology of Social and Political Thought from David Hume to the Present (Princeton University Press 1997) 266. 160

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construct seemed to undermine his project of grounding political order in any definitive existential commitment. Hermann Heller accused Schmitt of formulating the Friend-​Enemy distinction in terms of a “contentless psychologism.”161 By consciously failing to provide content or limitations to the distinction, Heller believed that Schmitt turned the political into the pursuit of violence and enmity for their own sake. This charge becomes the basis for arguments today that the aestheticization of violence sits at the heart of Schmitt’s project.162 Biographically, Schmitt is described as occasionalist because he repeatedly seemed to revise his political commitments in light of changing circumstances. The clearest example was his about-​face with Nazism. In the later years of Weimar, Schmitt decried the Nazi party as “godless” and its political goals as fundamentally incoherent with the substance of the Weimar Constitution and he theorized ways to ban it from political participation. Shortly after they took power, Schmitt joined the party and he zealously tried to advance its agenda. These challenges cannot be ignored. Unlike interpretations of Schmitt’s thought that consciously limit themselves to Schmitt’s Weimar period in part to skirt these challenges, this book engages with Schmitt’s pre-​and post-​Weimar writings and argues a coherent theoretical core can be extrapolated from them. Regarding the challenge of biographical occasionalism, several studies have been written about the nature and depth of Schmitt’s Nazism and anti-​ Semitism, most significantly Mehring’s recent biography of Schmitt.163 This book does not dispute that Schmitt was a Nazi or an anti-​Semite. Yet, despite Schmitt’s personal flaws and abhorrent commitments, it is possible to focus on his theoretical contributions and to separate what is valuable in his thought from his biographical failures. This book will not debate Schmitt “the man” and his personal commitments to   Cf. Hermann Heller, “The Nature and Structure of the State” (1996–​1997) 18 Cardozo Law Review 1139, 1146–​7. 161

  Richard Wolin, “Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror” (1992) 20 Political Theory 424, 433–​5, 443–​4; Jürgen Habermas, The New Conservatism (The MIT Press 1988) 137ff; Cf. William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (The MIT Press 1994) 32–​3; Müller, A Dangerous Mind 8, 20; McCormick, Carl Schmitt’s Critique of Liberalism 283; McCormick, “Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” 626. 162

  Mehring. For English debates about Schmitt’s ideological and philosophical commitments to Nazism that occurred prior to the publication of Mehring’s biography, see Bendersky; George Schwab, The Challenge of the Exception:  An Introduction to the Political Ideas of Carl Schmitt (Greenwood Press 1989); William E. Scheuerman, “Carl Schmitt and the Nazis (Book Review)” (1991) 23 German Politics and Society 71; William E. Scheuerman, “The Fascism of Carl Schmitt: A Reply to George Schwab” (1993) 29 German Politics and Society 104; Joseph W. Bendersky, “Der Fall Carl Schmitt: Sein Aufstieg zum ‘Kronjuristen des Dritten Reiches’ by Andreas Koenen & Carl Schmitt and Leo Strauss:  The Hidden Dialogue:  Including Strauss’s Notes on Schmitt’s ‘Concept of the Political’ and Three Letters from Strauss to Schmitt by Heinrich Meier” (1997) 69 The Journal of Modern History 891; Scheuerman, Carl Schmitt: The End of Law; Mehring. 163

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anti-​Semitism and Nazism. They are inexcusable. It will instead take what it can from Schmitt “the theorist,” who still has something to offer liberal democrats today. Turning to the challenge of conceptual occasionalism, it is noteworthy that Schmitt himself responded to Löwith in 1963. Schmitt denied Löwith’s accusation and described his thought as standing between system and aphorism, between Hegel and Nietzsche.164 Although his writings may appear fragmentary and incoherent, they are actually, like the islands of an archipelago, connected beneath the surface. Schmitt’s short publications do bear signs of a coherent theoretical system.165 Hofmann and Maus both argue that Schmitt’s thought is best conceived as a steady and uninterrupted development.166 More recently, Salvatore and Croce argue that signs of Schmitt’s late Weimar “institutionalism” or “concrete order thinking” are present already in his early Weimar decisionistic phase.167 Schmitt did not “convert” from decisionism to institutionalism but, as Salvatore and Croce convincingly demonstrate, institutionalism evolved out of and was continuous with his earlier Weimar writings. In fact, this book discusses evidence of Schmitt’s “concrete order thinking” even in his pre-​Weimar writings. Across his academic career, there are signs of continuity in Schmitt’s other defining ideas, including “the political,” “representation,” and “constitution.” While this book focuses on the stable core of his theory, it draws out the continuity in Schmitt’s thought by tracing arguments spanning his pre-​war writings to late in his life. This coherence can in part answer the charge of conceptual occasionalism. Still, a coherent theoretical core does not fully respond to the charges of conceptual occasionalism or the aestheticization of violence. Whatever theoretical continuity existed, Schmitt applied his thought to both the Weimar and Nazi states. This is disquieting. Yet this concern can be addressed by looking at the essence and scope of Schmitt’s state and constitutional theory. Schmitt distinguishes the “form” of the state and constitution from its specific “content.” Schmitt focuses not on the normative content of the state, the specific values or purposes every state ought to uphold, but what form any state, whatever its normative aims, must take to exist over time. He asks

  Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien (3rd edn, Duncker & Humblot 1963) 17; Martin Loughlin, “Politonomy” in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2015) 3. 164

  Reinhard Mehring, “Esoterische ‘Hinweise’? Marginalien zum Feindbegriff und ‘anthropologischen Glaubensbekenntnis’” in Reinhard Mehring (ed), Der Begriff des Politischen:  Ein kooperativer Kommentar (Akademie-​Verlag 2003) 193–​4. 165

  Hofmann III–​XII, XXV; Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory” 128.

166

  Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt (Routledge 2013) 25.

167

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and answers different questions. And in this regard, Schmitt could be understood as a sort of proto-​Realist. This distinction between form and content can be illustrated with “the political.” Here, both Heller and Löwith infer that Schmitt holds enmity to be a substantive value and advocates the aestheticization of violence and warfare. Schmitt does at times problematically valorize enmity as such. But the theoretical value of the political does not consist in either treating enmity as a normative value nor does it consist in defining the “proper” content of Enmity. Schmitt’s deeper goal and the theoretical value of this concept lies in its articulation of a phenomenon occurring in Germany at the time and which Schmitt believed was inextricable from human political behavior. From his sociological analysis of the formal nature of the political, Heller and Löwith inferred Schmitt’s normative endorsement of the political and its violent consequences. Chapter 2 analyzes the political in depth, arguing that if we are to make sense of Schmitt’s theoretical contribution of the political, it is necessary to approach it sociologically rather than normatively. Schmitt seems largely uninterested in specifying any normative criteria for political legitimacy, at least in the way that most political philosophers do today. Put differently, Schmitt’s state and constitutional theory does not contain a theory of justice, in the way the thought of Rawls or Nozick does. Instead, he defines what the formal properties of any state and constitution—​whether its content is just or unjust—​must be in the twentieth century if that state is going to successfully maintain its authority and a stable public order. Different theories of justice may be plugged into and inform its constitutional core. For example, as described already, Schmitt argues friendship and enmity are properties of all political order—​the Nazis and Communists demonstrated that liberal democracy was no exception. And, as David Dyzenhaus has suggested, when Schmitt’s thought is tuned to the defense of constitutional democracy, the political thought of Schmitt and Rawls are not intrinsically opposed and, instead, the political orders described by Schmitt and Rawls may even be complementary in their broad strokes.168 When framed by the distinction between the goals of Schmitt’s state and constitutional theory and Schmitt’s activities, the charge of occasionalism can be addressed. Schmitt was above all a conservative, Hobbesian statist. In the context of Weimar, he reluctantly applied himself to theorizing the Weimar “bourgeois Rechtsstaat” to stabilize the German state and defend its authority. So, although he did not theorize Weimar’s bourgeois Rechtsstaat out of a freestanding commitment to the core values of liberal democracy,   David Dyzenhaus, “‘Now the Machine Runs Itself ’: Carl Schmitt on Hobbes and Kelsen” (1994–​1995) 16 Cardozo Law Review 1; Cf. Dyzenhaus, Legality and Legitimacy 219ff. 168

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this does not mean that Schmitt’s defense of the Weimar state and constitution against Nazi or Communist insurrection has any less theoretical value. Liberal democrats can adapt Schmitt’s thought in order to address contemporary threats to our states and constitutions. This book follows this distinction between form and content. The first five chapters will focus on Schmitt’s formal state and constitutional theory. The final chapter and the conclusion will look at how he filled that theory with Weimar’s specific liberal democratic content and look at what value Schmitt’s state and constitutional theory has for liberal democracies in the twenty-​first century, respectively. In making and following the above distinction, this book addresses the charges of Schmitt’s occasionalism. It argues that although Schmitt was biographically occasional he was not conceptually occasional. Moreover, his biographical occasionalism can be explained by his conceptual commitments. Above all, Schmitt was committed to the authority of “the state” as such—​as opposed to the liberal democratic substantive normative values informing the Weimar state and constitution. His commitment to the state as such led him to theorize a defense of the Weimar state and its liberal democratic constitution until it effectively ceased to exist in 1933. At that point, Schmitt applied his formal state theory to the value commitments of Nazism. Schmitt’s biographical occasionalism can be explained as a consequence of his conceptual commitment to the state. There is no reason why liberal democrats must approach the normative content of the state with the same agnosticism that Schmitt did, however. Similarly, there is no reason why we cannot take Schmitt’s theory and defense of Weimar’s “bourgeois Rechtsstaat” at face value to see what insights it offers today. There is no reason why the defects of Schmitt “the man” cannot be contained and divorced from the merits that Schmitt “the theorist” has to offer. Accordingly, this book does not delve deeply into Schmitt’s biography. It focuses on Schmitt’s state and constitutional theory and its contribution to liberal democratic states today in six chapters. Chapter  1 analyzes Schmitt’s assessment of democratic movements in Weimar and the gravity of their effects on the state and constitution. It emphasizes that the focus of Schmitt’s criticism of Weimar was mass democracy rather than liberalism. Schmitt warned that the combination of mass democracy, the interpenetration of state and society, and the emergence of total movements opposed to liberal democracy, namely the Nazis and the Communists, were destabilizing the Weimar state and constitution. Weimar, Schmitt argued, had been designed according to nineteenth-​century principles of legitimacy and understandings of the people. Under the pressure of mass democracy, the state was buckling and cannibalizing itself and its constitution. Despite this, Schmitt argued, Weimar jurists’ theoretical

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commitments left them largely unable to recognize the scope of what was occurring. Schmitt’s criticism of Weimar democracy was intended to raise awareness of how parliamentary democracy could be turned against the state and constitution. Chapter 2 reinterprets Schmitt’s concept of the political. Schmitt argued that Weimar developments, especially the rise of mass movements politically opposed to the state and constitution, demonstrated that the state did not have any sort of monopoly over the political, contradicting the arguments made by preeminent Weimar state theorists, such as Jellinek and Meinecke. Not only was the political independent of the state, Schmitt argued, but it could even be turned against the state. Schmitt believed that his contemporaries’ failure to recognize the nature of the political prevented them from adequately responding to the politicization of society, inadvertently risking civil war. This chapter reanalyzes Schmitt’s the political from this perspective. Without ignoring enmity, it argues that Schmitt also defined the political in terms of friendship and, importantly, “status par excellence” (the status that relativizes other statuses). It also examines the relationship between the political and Schmitt’s concept of representation. Chapter  3 analyzes Schmitt’s state theory. It begins with Schmitt’s criticism of “the mechanical state,” a conception of the state that he associated with positivism. Schmitt denied that the state was only machine-​like and that it should merely execute whatever commands were fed into it. Instead, drawing on his interpretation of Hobbes, he argued that a legitimate state must make an absolute commitment to some substantive value, some political commitment, if it was to overcome the state of nature. Schmitt insisted that the state could not allow this commitment to be compromised by challenges from “indirect powers” without leading to instability and civil war. This chapter also discusses Schmitt’s typology of state neutrality: the state as a neutral power mediating social forces and the state as a neutralizing power preventing internal politicization. It concludes by discussing Schmitt’s interpretation of Hobbes’ total state and how that maps onto his own state theory. Chapter 4 analyzes Schmitt’s constitutional theory and how it complements his state theory. It begins with Schmitt’s criticism of the predominant positivist conception of the constitution. Schmitt argued that the positivists’ “relativized” conception of the constitution was committed above all to the equal chance of any belief to be enacted into law. This chapter then analyzes Schmitt’s counterargument that, without a prior and “absolute” commitment to some substantive value, a constitution could not fulfill its basic purpose of providing a clearly defined and stable public order. Schmitt’s typology of Relative and Absolute Constitution maps onto his state theoretical distinction between mechanical state and Absolute State. This chapter

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concludes by discussing Schmitt’s later analysis of the concept nomos and how his analysis builds on and develops his earlier work on the concept of the Absolute Constitution. Chapter 5 analyzes Schmitt’s theory of dictatorship. Schmitt’s theory of dictatorship was part of his broader criticism of positivism and its inability to effectively respond to the instabilities mass democracy wrought on the state and constitution. Positive laws, including constitutional amendment procedures, could themselves become threats to the fundamental commitments of public order. The suspension of positive laws might be justified. Schmitt argued dictatorship was a necessary final bulwark against this sort of revolutionary threat. The dictator, as guardian of last resort capable of acting outside positive law, could become necessary for a state to survive internal enemies. Yet, although dictatorship could suspend positive law, Schmitt argued it did not suspend the fundamental public order of the state and constitution—​a distinction positivism was unable to recognize. This chapter concludes with an analysis of Schmitt’s discussion of the role of the president as guardian of the constitution. Chapter 6 analyzes how Schmitt applied his state and constitutional theory to Weimar. It shows Schmitt theorized a “counter-​constitution” that entrenched liberal basic rights absolutely against democratic amendment procedures. It challenges the belief that Schmitt was a “relentlessly” illiberal thinker. This chapter analyzes how Schmitt applied his thought to Weimar in opposition to the prevailing positivist interpretation of the constitution, which held that it committed above all to democratic equal chance. Schmitt argued that the “absolute” commitments of a liberal democratic constitution like Weimar’s could only be coherently located in basic liberty rights. This chapter also analyzes the institutions and mechanisms Schmitt theorized to guarantee these basic liberty rights, especially against democratic subversion. They include entrenchment of basic constitutional commitments, party bans, a “positive” vote of no confidence, and a stronger federal state. This chapter concludes by analyzing Schmitt’s reflections on the improvements the Bonn Grundgesetz made to the Weimar Constitution. The Conclusion uses Schmitt’s thought to analyze what is today known as “constrained” or “militant” democracy. A constrained democracy is a constitutional regime with mechanisms to prevent its own democratic subversion. Although this regime is present to varying degrees in most liberal democratic states today, efforts to provide its comprehensive normative theory and justify its use have fallen short. The Conclusion argues that Schmitt’s state and constitutional theory, when used to theorize Weimar’s liberal counter-​ constitution, provides that comprehensive normative theory of constrained democracy. Schmitt’s state and constitutional theory provides liberal democrats today with an alternative way to think about the legitimacy of the

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liberal democratic state and the limits of democratic legal change. This chapter concludes by briefly discussing how to move constrained democracy beyond Schmitt and by describing some recent parallels between early twentieth-​century extremist movements and today’s political world. In analyzing his state and constitutional theory, I  show that, despite his controversial biography, Schmitt remains worth studying today. Schmitt analyzed the existential problems facing twentieth and now twenty-​first century liberal democratic states. He diagnosed the problem arising from the tension between democracy and basic individual rights and offered original solutions to resolve it. And he did it far more seriously than critics sometimes like to admit. Schmitt dared to suggest that, in their zeal to celebrate the virtues of democracy, many overlooked how democracy too can become tyrannical and that legitimacy is more than will, even a democratic will. Schmitt’s criticism of democratic legitimacy, standing on his broader state theory, offers new insights into contemporary discussions about the relationship of constitutionalism, rights, and democracy. We have the fortune of living in a comparatively stable period of modern history. But even now the threats to liberal democratic states Schmitt articulated—​populism, extremism, and democratic disenchantment with basic liberal freedoms—​are resurging. Extremist populist parties promising to rewrite the constitutions of their particular countries in illiberal and antidemocratic ways have established a foothold in countries around the world. Even if liberal democracies today do not show suicidal tendencies as alarming as Weimar did, it makes sense to have mechanisms in place to protect our highest values. The problems Schmitt articulated were intrinsic to constitutional democracy and anticipated the worst possibilities one might face. Can a constitution legitimately commit suicide? How should a liberal democratic state respond to social movements threatening one another and the state itself ? Can an illiberal antidemocratic party legitimately obtain power through elections and then kick the ladder down by legally amending democracy and liberalism out of the constitution entirely? Schmitt’s work provides original answers to these questions. In the end, Schmitt hoped to force liberals and democrats out of their comfort zone by arguing that all political theories rest on some commitment to order. He believed that the twentieth century “triumph” of democracy and liberalism led many, thinkers and lay people alike, to forget that constitutional democracy requires authoritative constraints on its political practices. No matter how liberal or democratic one is, he argued, there were limits to what would be tolerable and permissible within a state. And these limits were where state authority entered in. Schmitt pressed his fellow jurists in Weimar that, when forced to decide, they would agree that a Nazi majority legally seizing parliament and meeting whatever threshold requirements

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necessary to rewrite the constitution could not do so legitimately. That they recognized substantive normative constraints on democracy, such as reasonability, even if they did not draw out the implications of such a constraint. He aimed to show to those who admit legitimacy is more than mere will and positive law that some degree of state authority is both necessary and valid, and that it necessarily places limits on collective freedom. Were everything merely (aggregated) will or the “normative power of the factual,” there would only be the state of nature. Even the most liberal democratic state presupposed some underlying conception of legitimacy, no matter how minimal, which provided political limits to which actions and laws were tolerable. Schmitt’s state and constitutional theory urges us not to take liberalism and democracy for granted. They are values that must be continuously defended and upheld. And Schmitt offers a theory of how to do so.

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•1• The Challenge of Mass Democracy

In the early 1930s, Schmitt warned that Weimar’s “present-​day constitutional situation is characterized first of all by the fact that numerous institutions and regulations of the 19th century have continued unchanged, while the current state of things appears to have changed entirely.”1 Huber elaborated, writing that for Schmitt “if [concepts] obtain their meaning from the concrete situation in which they arose, they cannot simply continue on with no change in their meaning when the concrete circumstances cease to be valid.”2 Schmitt thought that political instability within the Weimar state and the dilemma it had given rise to was a consequence of uncritically adopting outdated concepts. To overcome that instability, he first aimed to understand what the nature of these changes were and why they were so destabilizing. This chapter explains Schmitt’s diagnosis of the factors driving the Weimar crisis, analyzing what he thought the “current state of things” was and why he thought it was undermining Weimar’s political institutions. Schmitt diagnosed that the Weimar crisis stemmed from two related causes. The first was the coincidence of statutory positivism and democracy, as discussed in the Introduction. To recap, Weimar statutory positivists had argued that

  Carl Schmitt, “Die Wendung zum totalen Staat” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​ Versailles 1923–​1939 (Duncker & Humblot 1988) 135. As Kelsen put it, Schmitt “tirelessly reminds us” about this changed state of things. Hans Kelsen, “Who Ought to be the Guardian of the Constitution?” in Lars Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press 2015) 178. Indeed, Schmitt made variations of this argument fairly often. Schmitt was also fond of citing Heraclitus’ fragment on change:  one cannot step into the same river twice. He wrote one cannot make the same speech or write the same essay twice, and, likewise, the great problems of democracy in the twentieth century should not be dealt with and answered using terms from the age of Talleyrand and Louis Philippe. Carl Schmitt, “Vorwort zu Positionen und Begriffe im Kampf mit Weimar–​Genf—​Versailles (1940)” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles (Duncker & Humboldt 1988) 5; Carl Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” (2011) 18 Constellations 299, 314; Carl Schmitt, “Der Begriff des Politischen; Vorwort von 1971 zur italienischen Ausgabe” in Helmut Quaritsch (ed), Complexio Oppositorum: Über Carl Schmitt (Duncker & Humblot 1988) 271; Carl Schmitt, “La Unidad del Mundo” (1951) 9 Anales de la Universidad de Murcia 343, 347. 1

  Ernst Rudolf Huber, “‘Positionen und Begriffe’: Eine Auseinandersetzung mit Carl Schmitt” (1941) 101 Zeitschrift für die gesamte Staatswissenschaft 1, 3–​4. 2

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

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valid law was whatever the state will, which reflected the will of the people, enacted into law through formal procedures. Yet Germany had no significant prior experience with democracy. Its sudden onset left many—​even committed democrats—​uncertain about what exactly democracy meant in practice.3 Schmitt worried that many of Weimar’s theorists reacted by conceiving democracy through rose-​tinted glasses, using it as a conceptual placeholder for “everything that is ideal, beautiful, and appealing.”4 But what it meant concretely was far from clear. He argued the term democracy could be and had been attached to many different political practices and that “everything depended on how the will of the people is formed.”5 A second cause of “the current state of things” was the rise of modern mass democracy. Based on nineteenth-​century conceptions of state and society, Weimar’s parliamentary democracy had been conceived as the means to politically integrate an educated and propertied middle class—​ the Bildungsbürgertum—​into government.6 Yet participation had dramatically expanded in the twentieth century to become “mass” democracy. The rise of mass democracy posed an unanticipated problem for parliamentarism: the political integration of the lower classes, which may be at odds or openly hostile to the ideals of the bourgeois Rechtsstaat. In her analysis of Schmitt’s criticisms of the dynamic between mass democracy and the Weimar state, Maus argues that Schmitt was motivated above all by a desire to protect bourgeois property rights against the threat of socialism.7 Maus is correct to draw attention to Schmitt’s opposition to politicized socialism. His fear of the radical left kept him looking in the wrong direction as the Nazis consolidated their power.8 But Schmitt rarely raises property rights in his writings. They appear to be more of a peripheral concern. Although the threat to property rights posed by communism certainly did alarm Schmitt, it was only one problem among a far broader set introduced by modern mass democracy that were destabilizing the state and constitution.

  Marcus Llanque, “Massendemokratie zwischen Kaiserreich und westlicher Demokratie” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 38. 3

  Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 257; Carl Schmitt, Political Romanticism (Guy Oakes tr, Transaction Publishers 2011) 59ff; Schmitt, Constitutional Theory 136–​8. 4

  Carl Schmitt, The Crisis of Parliamentary Democracy (Ellen Kennedy tr, The MIT Press 1988) 22, 23; Renato Cristi, Carl Schmitt and Authoritarian Liberalism:  Strong State, Free Economy (University of Wales Press 1998) 81, Cf. pp. 56–​7. 5

 Schmitt, Constitutional Theory 334–​7; Cf. Hasso Hofmann, Legitimität gegen Legalität:  der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 157. 6

 Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus:  Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) 119–​20; Ingeborg Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory” (1997) 10 The Canadian Journal of Law and Jurisprudence 125, 131–​2; Cf. Hofmann 116. 7

8

  Cf. Maus, Bürgerliche Rechtstheorie und Faschismus 21–​7.

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Llanque identifies the most significant characteristics of mass democracy leading up to and during the Weimar Republic as rapid industrialization, urbanization and enormous population growth, revolutions in technology including communications and transportation, de-​militarization, the development of mass-​psychology and mass-​sociology, and party politics.9 Simultaneously, there seemed to be a structural transformation in the nature of the public that led to a marked decline in the quality of political debates and discussion. The values and goals motivating political movements and parties had changed along with the methods they used to reach and motivate their voters. The value of reason, reasoning, and deliberation themselves seemed to be in question. The newly enfranchised masses were instead motivated and bound together politically by emotions and instincts. Parties relied on enemy propaganda [Feindpropaganda], suggesting that the conflicts among parties and movements were total and substantive conflicts over worldviews [Weltanschauungskämpfen]. They did so to galvanize and mobilize their supporters.10 Combined, these developments produced what were frightening displays from the perspective of the educated middle-​classes, including mass parades led by radical movements, and socially disruptive demonstrations and strikes, the staging and visualization of power.11 And radical movements repeatedly showed their willingness to transform those demonstrations of power into violent action, against one another and against the state itself. Schmitt believed these two causes combined to strain Weimar’s political institutions and erode the authority of the state and constitution. The substantive goals of Weimar’s various movements, especially the Nazis and Communists, were clearly at odds with the values of the constitution and were threatening to undo whatever stability and order the state had been able to realize since 1919. He emphasized democratic disagreement and power-​sharing only worked within the framework of a common basic structure and a consensus that the rules of the game were legitimate to begin with. Democratic rule presupposed some overlapping consensus on the rules of the game—​in this case a commitment to the basic liberal democratic values of the Weimar Constitution. But because their conflict were total, there would be no circumstances in which, for example, the members of a Nazi movement would view an SPD-​led Weimar state as having any right to rule. Or vice versa. The general theoretical agnosticism toward the content of the values of radical parties and movements held by Weimar democrats alarmed Schmitt. 9

 Llanque 40.

 Ibid 60; Cf. Carl Schmitt, “Der Begriff der modernen Demokratie in seinem Verhältnis zum Staatsbegriff ” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles (Duncker & Humbolt 1988) 19; Schmitt, Constitutional Theory 256. 10

 Llanque 43.

11

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He thought there was something profoundly wrong with allowing parties expressly inimical to liberal democracy to participate. The democratic commitment to value-​neutrality, he believed, was actually undermining the legitimacy of the Weimar state and constitution and driving it toward a Hobbesian state of nature.12 Political theorists working on Schmitt tend to focus on the direct or indirect contributions he made to democratic theory, particularly radical democracy. Kalyvas offers one of the strongest and most well-​known interpretations of Schmitt as a theorist of radical democracy. He argues that Schmitt offers a way to salvage Weimar’s democracy against the constraints of its liberal structure.13 Mouffe in part draws on and moderates Schmitt’s ideas in her work on agonistic democracy14 and Norton finds inspiration for a theory of democratic sovereignty in Schmitt.15 But the idea that Schmitt endorsed any form of democracy at all has been contested. Maus argues that Schmitt was deeply antidemocratic in his fears about the consequences of universal suffrage (specifically, the enfranchisement of the proletariat).16 In a rejoinder to Kalyvas, Cohen argues that Schmitt was no democrat.17 Müller argues “a careful reading of Schmitt does not yield a theory of ‘radical democracy’.”18 More strongly, Galli argues Schmitt diagnoses modern mass democracy as the cause of the crisis of the state.19 Cristi compellingly argues that Schmitt actually was an “authoritarian liberal” and no democrat at all.20 Even Kalyvas admits that Schmitt’s vision of democracy is “mute and thus crippled.”21 Setting aside whatever positive disposition Schmitt may have held toward the unconstituted democracy of extraordinary politics, there seems to be a broad consensus that Schmitt opposed all forms of constituted democracy.22   Cf. Schmitt, The Crisis of Parliamentary Democracy 17.

12

  Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge University Press 2008) 8, 82, 93–​7, 115, 122, 131–​2, 143–​6, 155, 181. 13

  Chantal Mouffe (ed), The Challenge of Carl Schmitt (Verso 1999); Chantal Mouffe, The Democratic Paradox (Verso 2000); Cf. Bonnie Honig, “Between Decision and Deliberation: Political Paradox in Democratic Theory” (2007) 101 American Political Science Review 1; Andrew Schaap, “Political Theory and the Agony of Politics” (2007) 5 Political Studies Review 56. 14

  Anne Norton, “Pentecost: Democratic Sovereignty in Carl Schmitt” (2011) 18 Constellations 389.

15

 Maus, Bürgerliche Rechtstheorie und Faschismus XVIII, 16.

16

  Jean L. Cohen, “Beyond Political Theology:  Comment on Kalyvas on Carl Schmitt” (1999–​2000) 21 Cardozo Law Review 1589, 1589ff. 17

  Jan-​Werner Müller, “Carl Schmitt and the Constitution of Europe” (1999–​2000) 21 Cardozo Law Review 1777, 1788; Cf. Cohen 1594; Torben Bech Dyrberg, “The Leftist Fascination with Schmitt and the Esoteric Quality of ‘the Political’” (2009) 35 Philosophy and Social Criticism 649, 651; William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 41–​2, 50. 18

  Carlo Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno (Il Mulino 1996) 98, 465, 477. 19

 Cristi 16.

20

  Kalyvas 86; Cf. 83.

21

  Ibid 128ff, 176ff.

22

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Hofmann wrote that Schmitt’s fixation on the nineteenth century and the crisis of the middle classes, Schmitt’s class, has not received sufficient attention in its relationship to his state and constitutional theory.23 This chapter addresses this concern by analyzing Schmitt’s portrayal of nineteenth-​century bourgeois values and institutions and the effect he believed twentieth-​century democracy had on them. It shows the degree to which he was alarmed by twentieth-​century trends in democracy, especially modern mass democracy and its effects on parliament. And it carefully reconstructs Schmitt’s reasons. Schmitt was frustrated by the systematic abuse of Weimar’s democratic institutions by parties uncommitted to its constitutional structure and who were only participating in order to undermine and revolutionize it.24 And, he was frustrated by how—​because they held value-​neutrality and democratic procedures to be Weimar’s highest commitments—​Weimar’s liberal democrats stood by while this happened. In his analysis of Weimar democracy, Schmitt aimed to limit democratic legitimacy in order to deprive everyday democratic practices of their power to affect or alter the core of the state and the constitution. One finds evidence of his opposition to democracy even in Weimar’s period of relative stability. In 1924, he argued “with all due respect for the power and irresistibility of democratic ideas, one cannot leave the decision on conceptual determination [such as ‘political value judgments’] to public opinion.”25 One year later, drawing a parallel between Weimar and the events of 1848, he wrote that the twentieth-​century state would be characterized by conflict over who should rule concretely: the bourgeois or the masses, liberalism or democracy.26 Even more pointedly, in his 1926 preface to The Crisis of Parliamentary Democracy, he argues the crisis of the modern state ultimately stems from the fact that “no state can realize a mass democracy.”27 Huber notes how the denial of any necessary relationship between liberal constitutionalism (the bourgeois Rechtsstaat) and democracy is a recurring theme in Schmitt’s work.28 On Huber’s reading, Schmitt’s criticisms were not directed at the abstract normative standing of either liberalism or democracy in themselves. They were directed at the corrupting influence mass democratization had on the liberal democratic state, which caused latent tensions between liberalism and democracy to be made manifest. The mechanical application of nineteenth-​century constitutional democratic principles to   Hofmann XV; Cf. Llanque 43. For a discussion of the social origins of Schmitt’s perspective, see Fritz Ringer, The Decline of the German Mandarins (Harvard University Press 1969). 23

  Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory” 133.

24

  Schmitt, “Der Begriff der modernen Demokratie in seinem Verhältnis zum Staatsbegriff ” 22.

25

 Schmitt, Political Romanticism 13.

26

 Schmitt, The Crisis of Parliamentary Democracy 16.

27

  Huber 11; Cf. Klaus Roth, “Carl Schmitt—​ein Verfassungsfreund? Seine Stellung zur Weimarer Republik in der Phase der relativen Stabilisierung (1924–​29)” (2005) 52 Zeitschrift für Politik 141, 151. 28

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twentieth-​century mass democratized society would not produce the effects intended. Maus argues that Schmitt saw mass democracy as a means to the “revolutionary abuse of classical legality,” by which the nineteenth-​century state, the legislative state, was unintentionally transformed.29 Lübbe rightly emphasizes that Schmitt’s criticisms were motivated by the (reasonable) concern that parliament’s impotence in the context of Weimar’s social, economic, and political disasters was suicidal.30 This chapter is divided into three sections. The first section discusses Schmitt’s understanding of liberal metaphysics and how he believed it translated into nineteenth-​century ideas of political legitimacy and institutions. The second section discusses how Schmitt believed modern mass democracy strained Weimar’s democratic institutions, especially its parliament. It analyzes the changes in civil society Schmitt described and discusses how he thought they contributed to Weimar’s crises. Finally, the third section draws out Schmitt’s conclusion: modern mass democracy has undermined the ability of parliamentary democracy to represent the political community and, from the perspective of the different movements, make legitimate decisions. The crisis of twentieth-​ century parliamentary democracy was, for Schmitt, not due to liberalism, basic rights, or the rule of law by themselves. The inability of the state to establish a stable public order, due in part to modern mass democracy, provided fertile ground for civil war to germinate.

1.  better talk had gone: nineteenth-​c entury liberal democracy and its presuppositions Schmitt believed that the legitimacy of parliamentary democracy as a system of rule hinged on presuppositions about political legitimacy itself. In The Crisis of Parliamentary Democracy, Schmitt frames his discussion of the legitimacy of parliamentary democracy with the question “why has parliament been the ultimum sapientiae for many generations, and on what has the belief in this institution rested for over a century?”31 Why was parliamentary democracy considered to be the most legitimate form of political rule? Schmitt famously argued the “theological” beliefs of an epoch structure its conception of political legitimacy.32 Schmitt believed parliamentary democracy was the politicization of nineteenth-​century “liberal” metaphysics. By 29

 Maus, Bürgerliche Rechtstheorie und Faschismus 44–​5; Cf. Hofmann 99.

  Hermann Lübbe, “Carl Schmitt Liberal Rezipiert” in Helmut Quaritsch (ed), Complexio Oppositorum: Über Carl Schmitt (Duncker & Humblot 1988) 433. 30

 Schmitt, The Crisis of Parliamentary Democracy 33.

31

 Schmitt, Political Romanticism 18, 64; Carl Schmitt, Political Theology:  Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 2005) 36–​52. For an extremely illuminating 32

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analyzing the metaphysical, or “theological,” beliefs underlying political liberalism, Schmitt believed one could better understand the basis of its legitimacy. He also believed doing so would reveal how the changed “state of things” in the twentieth century could fracture and erode that basis. a.  Liberal metaphysics: the theoretical underpinnings of the nineteenth-​century state Schmitt oriented his readers by asking them to bear in mind that “liberalism be understood as a consistent, comprehensive metaphysical system.”33 Liberal metaphysics “renounces a definite result” and is “relative in a specific sense.”34 Although committed to discovering truth, it recognizes truth can be known only in a limited way: truth may need to be revised in light of new evidence.35 So although liberalism is a rationalistic metaphysics, it commits to truth-​claims only conditionally. Its epistemological reservation about truth trumps any absolute commitment to a particular truth-​claim, any definitive “dogma.”36 For this reason, liberalism could be considered to be more of an epistemological than a metaphysical form of rationalism.37 Alternatively, one could say Schmitt characterizes liberal metaphysics as a second-​order commitment, regulating one’s first-​order commitments. Schmitt’s understanding of liberalism draws on nineteenth-​century liberal theorists like Mill and Guizot. In On Liberty, Mill’s defense of liberal political discussion of Schmitt’s concept of political theology, see Aaron B. Roberts, “Carl Schmitt—​Political Theologian?” (2015) 77 The Review of Politics 449.  Schmitt, Constitutional Theory 236; Schmitt, The Crisis of Parliamentary Democracy 2; Cf. Hofmann 99.

33

 Schmitt, The Crisis of Parliamentary Democracy 35 (my emphasis); Cf. Reinhard Mehring, “Liberalism as a ‘Metaphysical System’: The Methodological Structure of Carl Schmitt’s Critique of Political Rationalism” (1997) 10 Canadian Journal of Law and Jurisprudence 105, 117. 34

 Schmitt, Constitutional Theory 236; Cf. Carl Schmitt, Der Hüter der Verfassung (4th edn, Duncker & Humblot 1931) 147. 35

  Mehring 110–​11. From his account of nineteenth-​century liberalism, one can see better why Schmitt thinks romanticism arises out of liberalism and how he ties his arguments about occasionalism into his analysis of liberalism. Because “truth” is at best viewed skeptically, it can lead to a lack of commitment and conviction—​it entertains alternative beliefs and opinions because it cannot, logically, make any definite metaphysical commitment (Schmitt, Political Romanticism 17). And while liberalism recognizes the uncertainty of its own truth claims, romanticism goes one step further by instrumentalizing it: one does not even temporarily commit to anything but “samples freely,” that is, arbitrarily, from Weltanschauungen whenever it is “interesting” (ibid 65–​7, 116). Schmitt sometimes seems to want to go further and argue that liberalism is metaphysically no different than romanticism. But he is wrong to do so, since liberalism is hardly uncommitted to truth for reasons of aesthetic “play,” as he suggests (Cf. ibid 98, 103–​8; Carl Schmitt, “The Age of Neutralizations and Depoliticizations” (1993) 96 Telos 130, 133). To the contrary, it is because of a deep-​seated agnosticism about what truth is and the possibility to know any truth—​a negative metaphysics that is more an epistemological commitment. 36

  Cf. for example Steven G. Crowell, “Transcendental Logic and Minimal Empiricism” in Rudolf A. Makkreel and Sebastian Luft (eds), Neo-​K antianism in Contemporary Philosophy (Indiana University Press 2010) 156; Peter Gordon, Continental Divide: Heidegger, Cassirer, Davos (Harvard University Press 2010) 54–​5; Cf. Hans Vaihinger, The Philosophy of “As If ” (C. K. Ogden tr, Routledge & Kegan Paul Ltd. 1965) 320. In making these claims, Schmitt no doubt has in mind the then dominant neo-​K antian school, which had 37

42

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institutions hinges in part on what Bilgrami has identified as “the argument from meta-​induction.”38 Mill’s argument begins with the observation that past convictions, no matter how deeply held they once were, have been shown to be wrong. The meta-​induction is that, so too might current convictions be wrong, no matter how convincing they may seem. Mill concluded it would be irrational to close off critical routes for evaluating truth. This means allowing oneself to be exposed to new arguments, which will either strengthen one’s already-​held beliefs or lead one to revise them in light of better arguments. Thus, basic liberal freedoms and a sort of agonistic competition between “truths” are justified as a basis for the continued pursuit and approximation of truth and the good. It is only through this competitive, discursive, and rationalistic process that mistakes in our beliefs and our knowledge will be exposed and corrected.39 Liberalism commits epistemologically to this second-​order rational skepticism, which constrains the certitude of whatever first-​order “truth” commitments one might hold. By guaranteeing the possibility for individuals to investigate and scrutinize truth and belief through deliberation,40 Schmitt believed that liberalism achieves two goods.41 First, not arbitrary drives or powers but reason itself will be the force working behind the backs of individual and collective life. Second, the greater good of all will be served by providing an open forum for the critique of beliefs about truth and right because the most rationally founded beliefs will eventually triumph in this process. Either way, he argues, liberal metaphysics presupposes some form of transcendent natural reason exists and that legitimacy is determined by the triumph of reason over arbitrariness, including arbitrary willing—​ratio over voluntas, nomos over thesmos.42 explicitly shifted Kant’s claims in the First Critique from metaphysics to epistemology in order to overcome both objections to Kant (e.g. from Hegel and Nietzsche) as well as avoid the perceived bankruptcy of German Idealism and accommodate the rise of (positive) science.   See Akeel Bilgrami, “Secularism and Relativism” (2004) 31 boundary 2 173. As Bilgrami notes, this is not the only argument Mill provides, but too often it is the only argument his readers take away from his work. Schmitt seems to be guilty of reading Mill in this way. 38

  According to Schmitt, according to liberal metaphysics, reason emerges out of individuals, or even behind their backs, as they engage in a discursive process. Yet it is also a property of individuals and a source of both inherent value or dignity and their utility to broader society. In the 1926 preface to The Crisis of Parliamentary Democracy, Schmitt describes liberalism as an individualistic-​humanitarian ethic and Weltanschauung. Schmitt, Political Theology 47–​51; Schmitt, “The Age of Neutralizations and Depoliticizations” 131–​6; Schmitt, The Crisis of Parliamentary Democracy 13. 39

  Schmitt was not alone in characterizing parliament as discursive or discussion in Weimar. For example, Kelsen too conceived of Weimar’s partliamentary democracy as an above all discursive body. See Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford University Press 2007) 122. 40

 Schmitt, The Crisis of Parliamentary Democracy 35.

41

  Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 10–​11; Cf. Gregory Vlastos, Studies in Greek Philosophy: The Presocratics, vol 1 (Princeton University Press 1997) 98; Douglas M. 42

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Schmitt believed liberal theories like Mill’s demonstrated the persistence of natural law and reason in nineteenth-​century bourgeois state and society, even if it had been relegated to second-​order reasoning about truth rather than a claim about the nature of truth itself. And Schmitt’s claim is not outlandish.43 The universality of human reason, and the power of this faculty to move individuals beyond egoistic, private interests, allows for a narrow type of natural law.44 Reason can even indirectly be described as sovereign in such a condition, even if it does not yield any definitive metaphysical or political systems. Individual belief could still converge on a single point. Rational arguments were nevertheless persuasive and this epistemological minimum could nevertheless ground consensus on legitimate political order. b.  The nineteenth-​century legislative state and the liberal commitment to liberty Schmitt believed the commitment to liberal metaphysics generates political consequences. Metaphysical and theological commitments have practical consequences because they shape how an agent perceives and acts intentionally in the world. Liberalism’s epistemic reservation leads adherents to commit to the freedom of all to evaluate and explore truth, even if they disagree with the results of others’ conclusions. The process of discursive, rational scrutiny becomes the means by which political “truth” and right come to be discovered and applied to the political community. At the same time, it also demands liberals hold their own conclusions at arm’s length and submit them to rational scrutiny. At the level of public law, Schmitt argued this liberal epistemological commitment to relative rationalism translates into political and legal guarantees for individuals to develop their truth-​claims autonomously. He wrote that, politically, liberalism is a decision for “Liberté,” for individual liberty, including a private sphere of belief and ownership, and for their protection against abuses of power by both the state and social forces.45 Schmitt argued the political decision for liberty leads to two principles of state form: a “distributional” principle and an “organizational” principle.46 The distributional principle establishes a sphere of individual freedom by constraining the state’s ability to interfere in individuals’ private lives. MacDowell, The Law in Classical Athens (Cornell University Press 1986) 44ff; Michael Oakeshott, Lectures in the History of Political Thought (Imprint Academic 2006) 78, 80.   Cf. Martin Loughlin, Foundations of Public Law (Cambridge University Press 2010) 190.

43

 Schmitt, Constitutional Theory 65.

44

  Ibid 169–​70, 198, 205; Carlo Galli, “Carl Schmitt’s Antiliberalism: Its Theoretical and Historical Sources and its Philosophical and Political Meaning” (1999–​2000) 21 Cardozo Law Review 1597, 1598–​1600. 45

 Schmitt, Constitutional Theory 170; Cf. Max Weber, Economy and Society:  An Outline of Interpretive Sociology, vol. 2 (Guenther Roth and Claus Wittich eds, University of California Press 1978) 652. 46

4

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Guaranteed basic rights establish this space, both for individuals in isolation (such as freedom of religion and speech) and individuals in association with one another (such as freedom of the press and to assemble).47 Schmitt believed that, for a liberal state, legitimacy hinged on the ability to guarantee an in principle unlimited sphere of individual autonomy (and the state, in turn, was in principle limited and could only interfere in that sphere of individual autonomy when explicitly authorized to do so). Individual rights against the state and against other individuals ground the conviction that the determination of truth and right occurs best through that meta-​inductive process and when qualified by that second-​order epistemological reservation about absolute truth claims. Schmitt argued that an organizational principle complements this distributional principle. He wrote, “the principle of the separation of powers, as a mere organizational principle, serves to secure basic rights and is subordinate to them.”48 The legitimacy of the organizational principle is thus contingent on its ability to balance state power to promote individual liberty. The organizational principle organizes the state to balance its power internally in three ways. First, it creates an agonistic competition among the potential laws the legislative branch can enact.49 Greenberg writes that Schmitt argued “parliament had not originally been an institution of democracy and national politics [but aimed] to provide a forum for capable and independent individuals to engage in free discussion and peaceful competition of ideas, then legislate laws for the benefit of the general public.”50 The legislative branch is balanced internally: legislators oppose one another, theoretically limiting the ability of the legislative branch as a whole to interfere too extensively in society. He argued that the cunning of reason operates behind the backs of legislators: as they deliberate, it will naturally separate out less reasonable laws.51 Schmitt described how this dialectical process realizes a qualified form of natural law—​rational-​legal legitimacy is tied to the deliberative reasoning of parliamentary legislation.52 But Schmitt thought that it is not merely the adherence to the arbitrary formal enactment criteria of positive law that makes law rationally legitimate. Rational-​legal legitimacy is generated by the  Schmitt, Constitutional Theory 202–​12.

47

  Carl Schmitt, “Grundrechte und Grundpflichte” in Carl Schmitt (ed), Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 Materialien zu einer Verfassungslehre (Duncker & Humblot 1958) 198. 48

 Schmitt, Der Hüter der Verfassung 88, 101.

49

  Udi Greenberg, The Weimar Century:  German Émigrés and the Ideological Foundations of the Cold War (Princeton University Press 2014) 85–​6. 50

 Schmitt, Constitutional Theory 186, 235; Carl Schmitt, “The Plight of European Jurisprudence” (1990) 83 Telos 35, 48–​9. 51

 Schmitt, Constitutional Theory 181–​2, 184; Schmitt, Legality and Legitimacy 4. Other Weimar thinkers conceived of parliament in similar dialectical terms, such as Kelsen. Kelsen 194. 52

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role that reason plays in that legislative process, for example through the discursive rationality of parliament. Second, the organizational principle creates multiple internal competencies (e.g. executive, legislative, and judiciary) to further limit the power of the state.53 Schmitt argued the third way the organizational principle limits state power is by making it transparent, especially its legislative branch.54 Through public scrutiny, the state ends up better representing the interests of the entire political community.55 The organizational and distributional principles were intended to minimize the possibility of arbitrary, irrational interference in individual life. They concretized the political decision for liberty. Schmitt believed liberals theorize political legitimacy by conceiving of the individual as prior to the state.56 In his early writings, he classified this tendency as a form of justice-​oriented natural law [Gerechtigkeitsnaturrecht].57 He believed liberalism tends to conclude that the legitimate state is the one which leaves its constituents as unconstrained as possible. This culminates in a theoretical distinction between state (a sphere of “public” power) and society (a sphere of “private” freedom).58 Schmitt concluded that the “size” of the nineteenth-​century state adjusted to match its political commitments. Galli describes Schmitt’s conception of that state as passively neutral, meaning it merely executes formally legal rules, without regard to substantive values.59 The state’s role, beyond guaranteeing its constituents’ freedom through its two principles, was limited to enforcing law. It shrank accordingly,60 thereby maximizing individual freedom and fostering the rule of reason. For Schmitt, the “neutral” bourgeois Rechtsstaat adopted the maxim laissez-​passer with regard to its constituents’ beliefs and values, no matter which sphere they fall under.61 In doing so, it consistently sought to realize its purpose, of maximizing individual liberty, which happened also to define its legitimacy.  Schmitt, The Crisis of Parliamentary Democracy 39–​41; Schmitt, Constitutional Theory 220–​34.

53

 Schmitt, The Crisis of Parliamentary Democracy 37–​9, 44–​5; Schmitt, Constitutional Theory 184, Cf. 65, 106, 195–​6, 205–​6, 250–​2, 337–​8. 54

 Schmitt, Constitutional Theory 334–​5, 341; Schmitt, The Crisis of Parliamentary Democracy 46, 47–​8 (Cf. 35–​6). The Weimar Constitution was designed exactly according to this principle of representation. 55

 Schmitt, Constitutional Theory 112–​14, 169, 202.

56

  Carl Schmitt, Die Diktatur: von den Anfängen des modernen Souveränitätsgedanken bis zum proletarischen Klassenkampf (Duncker & Humblot 1989) 21, 118–​19; Cf. Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Michael Hoelzl and Graham Ward trs, Polity 2013) 16–​17. 57

 Schmitt, Constitutional Theory 203, 235–​7; Schmitt, Der Hüter der Verfassung 73, 79. This decision produces a series of antitheses that he thinks are the crux of liberal politics: state/​society; executive and administration/​the people; executive/​legislative; politics/​society (as religion, culture, and economics); and domination and power/​freedom and right. 58

 Galli, La Genealogia della Politica 367–​8.

59

  Schmitt, “Die Wendung zum totalen Staat” 150–​2.

60

 Schmitt, Der Hüter der Verfassung 111–​14.

61

46

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But the political decision for liberty was only partial, Schmitt added.62 The organizational and distributive principles say little about the form the state takes. They only define what the state’s normative purpose or aims are. The constitutional decision for political liberalism thus produces a “negative” decision for the bourgeois Rechtsstaat. But the bourgeois Rechtsstaat, Schmitt argued, must be paired with some positive state form. That state form could be monarchy, aristocracy, parliamentarism, or democracy. But state form says little about that state’s substantive purpose. It merely specifies the governmental powers and institutions that guarantee that purpose. Instead, Schmitt argued, liberty is its purpose. Schmitt wrote of the political decision for the bourgeois Rechtsstaat, “its sense and goal, its telos, is in the first instance . . . liberté, protection of the citizen against the misuse of state authority.”63 Accordingly, regardless of whichever positive state form the negative decision for liberty ends up being paired with, its negative political commitment takes priority. Schmitt believed liberalism prioritized individual liberty as a value and its state form, traditionally parliamentary democracy, was a means to achieve that end. Liberalism and parliamentary democracy occurred together historically because parliamentary democracy happened to be the best way to realize the distributional principle. Parliament represented both “the people” as a whole and provided a natural, rational process for representing its will.64 Maus draws attention to Guizot’s influence on Schmitt here: parliamentary representation was intended to be representation of the relative reason of that people, a “reasonable” people.65 And Schmitt believed parliament actually did work in the nineteenth century—​it actually did realize the decision for liberty concretely.66 Huber writes that, in his afterword to Lorenz von Stein’s anonymous essay, Schmitt argued that nineteenth-​century parliament did genuinely represent the people by bringing it into the public realm and forming its status.67 Mehring, too, argues that Schmitt for a long time “considered a functioning parliamentary system desirable.”68 And, as Cristi writes, “when [Schmitt] stated the ‘early liberal Rechtsstaat . . . still subscribed to a Weltanschauung and was capable of a political confrontation,’ Schmitt could not have come up with a more flattering observation with regard to [nineteenth century] liberalism.”69 Schmitt made  Schmitt, Constitutional Theory 78, 169.

62

  Ibid 170; Cf. ibid 169; Schmitt, Legality and Legitimacy; Carl Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre (J.C.B. Mohr (Paul Siebeck) 1930); Schmitt, “Grundrechte und Grundpflichte” 191ff, 206ff, 226–​7; Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 158ff. 63

  Cf. Mehring 117–​20.

64

65

 Maus, Bürgerliche Rechtstheorie und Faschismus 43.

 Schmitt, Der Hüter der Verfassung 78; Schmitt, “Die Wendung zum totalen Staat” 150; Carl Schmitt, Roman Catholicism and Political Form (G.L. Ulmen tr, Greenwood Press 1996) 26; Carl Schmitt, “Was bedeutet der Streit um den ‘Rechtsstaat’?” in Günter Maschke (ed), Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916–​1969 (Duncker & Humblot 1995) 126; Cf. Cristi 156. 66

67

  Huber 21ff; Cf. Hofmann 157.

68

  Reinhard Mehring, Carl Schmitt: A Biography (Polity 2014) 196 (my emphasis).

 Cristi 156.

69

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this argument in 1935, long after hiding any “vehement illiberalism” had lost all meaning.70 Schmitt also argued, citing Jellinek, that parliament was legitimate when it aimed at representing the natural reason inherent within its distinct constituent individuals because it functioned as a complexio oppositorium, uniting a plurality of diverse interests and movements into a unity.71 Not only did Schmitt believe liberal institutions had worked in the nineteenth century, but parliament guaranteed the political commitment to individual liberty and guarded its constitutional form.72 To be sure, however, Schmitt argued that parliament’s value was instrumental. The commitment to liberalism had been best maintained by parliament in the nineteenth century. But it was not the only political institution capable of ensuring individual liberty and nothing prevented democracy and individual liberty from becoming opposed.

2.  modern mass democracy In 1928, Schmitt wrote After half a century, all the demands of the German liberal bourgeoisie of 1848 and from the period of the conflict of 1862 to 1866 came to fruition . . . Now their demands were realized, but meanwhile the political and social situation was fully changed and their fulfillment acquired a different sense than it would have had fifty years before . . . the success that the German bourgeoisie had achieved with the introduction of parliamentary government in Germany was in a certain sense enjoyed posthumously.73

By the time Germany had become a constitutional democracy, the German people had by and large lost interest.74 Large segments of society had even become opposed to constitutional democracy. Schmitt compared Weimar to an off-​the-​rack suit into which the German people had been squeezed.75 This   Schmitt, “Was bedeutet der Streit um den ‘Rechtsstaat’?” 126.

70

 Schmitt, Roman Catholicism and Political Form 26.

71

 Schmitt, Der Hüter der Verfassung 78; Schmitt, “Die Wendung zum totalen Staat” 150.

72

 Schmitt, Constitutional Theory 357–​8; Cf. Schmitt, “Der bürgerliche Rechtsstaat” 45. In this text, Schmitt famously remarks, “the Weimar Constitution is in some sense something posthumous. It realizes demands, ideals, and programs that prevailed back in 1848. Only a small portion of the liberal-​constitutional ideas of that time were taken up in the re-​foundation of the empire in Bismarck’s 1870 Constitution. The rest were pushed back two generations. They first came to be implemented when in 1918, with the collapse of the monarchy, the opponents of 1848 were vanquished—​but not because they were politically defeated internally but because an external, military defeat eliminated them by itself. After two generations the ideas of 1848 were victorious without a fight. It was as if a man, who lost to a rival the girl he dedicatedly sought since his youth, ‘wins’ her as a widow decades later. So must the realization of the liberal program, which had it been won in 1848 would have been a brilliant victory, comes too late in 1919, as it fell because of a collapse and without a fight into the laps of its heirs [my translation].” Otto Kirchheimer makes similar remarks. See Otto Kirchheimer, “Weimar—​and What Then?” in Frederic S. Burin and Kurt L. Shell (eds), Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer (Columbia University Press 1969) 71–​2. 73

  Schmitt, “Der bürgerliche Rechtsstaat” 44.

74

 Ibid 47.

75

48

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“nineteenth century” constitution was no longer tailored to its people’s values, beliefs, and political goals. Although the English title reads “The Crisis of Parliamentary Democracy,” Schmitt wrote in its later 1926 preface that this crisis is actually threefold: of mass democracy, the state, and parliament.76 He identified the root of the crisis as mass democracy. Greenberg writes that Schmitt believed the underlying cause of Weimar’s parliamentary instability was the expansion of the electorate to include “the masses, huge parties, powerful pressure groups, and private interests that no longer cared about the public good and sought only to serve their own constituencies.”77 Mass democracy altered how parliament and the bourgeois Rechtsstaat functioned.78 Schmitt concluded his 1926 preface noting that, even if fascism and bolshevism were contained, the crisis caused by mass democracy would remain.79 The Nazi and Communist movements were only symptoms of this underlying problem. Under these changed circumstances, parliamentary democracy, could no longer play a politically integrative role. Instead, it was actually aggravating Weimar’s political instability. This section outlines Schmitt’s analysis of the crisis caused by modern mass democracy in seven parts. It first reconstructs the core of Schmitt’s analysis of the decline of natural law in the German tradition, which Schmitt had argued was linked to a decline in the legitimacy of reason itself. Next, it shows how Schmitt thought this metaphysical decline was politicized by irrationalist, extremist movements like the Nazis and Communists. The third part discusses how Schmitt thought modern social-​psychology and technology offered these movements tools to manipulate the newly enfranchised masses, in effect to operate as indirect powers. The fourth part discusses how Schmitt saw parliament becoming an “arena” in which these movements struggled to impose their worldviews on one another, rather than a deliberative forum. The fifth part discusses how the changes in society affected the nature of the state itself. Schmitt thought the state had changed from a qualitatively to a quantitatively total state. The sixth discusses how Schmitt argued parliament was becoming an apocryphal sovereign rather than a mere constituted power. And, finally, the seventh shows how Schmitt thought mass democracy was a problem affecting both parliamentary and 76

 Schmitt, The Crisis of Parliamentary Democracy 15–​16; Cf. Schmitt, Legality and Legitimacy 27–​36.

77

 Greenberg 86.

  Cf. Hofmann 117.

78

 Schmitt, The Crisis of Parliamentary Democracy 13. This book’s structure is noteworthy. Schmitt ends the first chapter arguing democracy can ally with dictatorship. After writing parliamentarism has been corrupted by mass parties in the second chapter, he turns to two instances of democracy’s alliance with dictatorships: Marxism (rationalist) and bolshevism and fascism (irrationalist). Ibid 17; Cf. Cristi 16, 35, 154–​6; Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford University Press 2003) 196, 245. 79

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plebiscitary democracy—​that is, plebiscitary democracy would not solve any of the pathologies of modern mass democracy, but instead may even exacerbate them. a.  The interrupted dream of natural reason Fin-​de-​siècle Europe was characterized by a strong reaction against the “decadence” of the previous century. Toward the end of the nineteenth century, movements fed up with Enlightenment rationalism, positivism, and bourgeois society flocked to counter-​virtues of nihilism, irrationalism, and emotionalism. They aimed to sweep the legs out from under “liberal” ideals and values in order to overthrow modernity, especially its Enlightenment heritage. Schmitt’s understanding of his time and its events, like so many of his generation, was shaped by Max Weber. Weber had argued that, as knowledge of “scientific” facts and causal laws increased, human life was robbed of substantive meaning, disenchanting it. Christianity’s role in unifying the different aspects of human life had vanished by the twentieth century. But the disenchantment of the world had not annihilated theological or metaphysical belief altogether. It just forced it inwards in a process of romantic, subjective mystification. Faith was both individuated and pushed into the realm of irrationality, as rationalism and scientific method became more and more synonymous. This process undermined the foundations of external authority and crystallized into a hiatus irrationalis, separating knowledge of facts of material reality from knowledge of “unscientific” things, like values and metaphysics.80 Simultaneously, increasing social and intellectual complexity resulted in greater specialization of knowledge. This increase in specialization multiplied the number of competing frameworks or “value-​spheres,” all founded on irreconcilable and opposed presuppositions with which to scientifically understand the world.81 As belief was forced inwards, Weber argued it also pluralized democratically.82 Seemingly paradoxically, disenchantment leads to “polytheism.” Individuals were on their own to determine what meaning the world had (if any). The pluralism resulting from both the individuated, increasingly irrational nature of faith and the centrifugal effects of specialization was shattering the unity of society and whatever shared commitments communities had. Value pluralism and nihilism, or polytheism (“warring gods”) and atheism (the death of god), appear to be two sides of the same coin in Weber’s thought.83 Without objective values, all that mattered was the   Max Weber, “Religious Rejections of the World and their Directions” in H. H. Gerth and C. Wright Mills (eds), From Max Weber: Essays in Sociology (Oxford University Press 1959) 328. 80

 Cf. ibid.

81

  Weber, “Science as a Vocation” 147.

82

  Cf. Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno 91–​2.

83

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degree to which a particular conviction affected an individual. Weber believed that polytheism meant individual commitments would dissolve into a series of “warring gods,” any of which an individual might be affected most by and choose to serve.84 This polytheism was distinctively modern.85 These gods were disenchanted too, Weber added. Sober reflection revealed faith in any particular god to be groundless, even if affectively compelling. Although Schmitt does not often write directly about the decline of natural law and reason, he was disturbed by these conclusions. Schmitt believed Weber’s disenchantment (especially when framed by terms like polytheism) was really an argument about “political theology.”86 Building on Weber, Schmitt argued that reason itself went into a crisis in the twentieth century: beliefs about what was “rational” would no longer converge—​worse, reason and reasoning were no longer considered legitimate.87 The rise of irrationalist philosophies, celebrating impulse and spontaneity over reason and thought (which Schmitt thought had begun with Nietzsche and was carried on in the work of Henri Bergson and his “philosophy of life”)88 had undermined whatever vestiges of natural law and objective reason remained. In his otherwise sober and systematic Constitutional Theory, Schmitt occasionally lamented the loss of natural reason and natural law. He wrote the Weimar crisis was rooted in the loss of the “metaphysical assumptions of the bourgeois belief in natural law,”89 the loss of “the old liberal belief ” in the “sovereignty of reason.”90 In other texts, he lamented the evaporation of “Cartesian idées générales,” that is transcendental justification, and its replacement by an immanent one.91 In all of these cases, Schmitt portrayed a crisis in reason itself as the underlying cause of Weimar’s political crisis. He suggests 1848 was the 84

  Weber, “Science as a Vocation” 152–​3; Cf. Hofmann 215.

  Weber, “Science as a Vocation” 148; Max Weber, “Between Two Laws” in Peter Lasswell (ed), Political Writings (Cambridge University Press 1999) 99. 85

  Cf. Carl Schmitt, Die Militärzeit 1915 bis 1919. Tagebuch February bis Dezember 1915, Aufsätze und Materialien (Akademie Verlag GmbH 2005) 15–​16; G. L. Ulmen, “The Sociology of the State: Carl Schmitt and Max Weber” (1985) 1 State, Culture, and Society 3, 20, 44; G. L. Ulmen, “Introduction to Roman Catholicism and Political Form” in Roman Catholicism and Political Form (Greenwood Press 1996) xixff; Thierry Gontier, “From ‘Political Theology’ to ‘Political Religion’: Eric Voegelin and Carl Schmitt” (2013) 75 The Review of Politics 25, 34, Cf. 33–​6 NRW265-​21861. 86

87

 Schmitt, The Crisis of Parliamentary Democracy 3, 5, 50, 76.

  Ibid 66–​8; Carl Schmitt, “State Ethics and the Pluralist State” in Arthur Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2000) 302. 88

89

 Schmitt, Constitutional Theory 65. Kelsen recognized Schmitt as a natural lawyer. Kelsen 218–​19.

90

 Schmitt, Constitutional Theory 106; Cf. Cristi 149.

 Schmitt, Legality and Legitimacy 10–​11; Carl Schmitt, “Nationalsozialistisches Rechtsdenken” (1934) 4 Deutsches Recht, 225; Cf. Hofmann 167; Mehring, “Liberalism as a ‘Metaphysical System’ ” 110, fn. 19. Interestingly, Franz Neumann adopts Schmitt’s contrast of transcendental justification and immanent 91

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turning point for natural reason and natural law. It was then that “the dream of natural law [was] over.”92 From then on, objectivity, Platonic Forms, and so on were in full retreat. Reason, he believed, had been killed along with god. b.  Politicized irrationalism Believing that politics reflected metaphysical beliefs, Schmitt concluded that just as metaphysical disenchantment had undermined natural reason so too would the political authority of reason be undermined.93 Fischer draws attention to how Schmitt relates the processes of secularization and democracy.94 Fischer argues that, for Schmitt, democratization led to disenchantment and secularism. Indeed, the two phenomena are connected for Schmitt. But it was not democracy that led to disenchantment and secularism, as Fischer argues, but disenchantment that led to democratization. Theology and metaphysics precede and drive politics. Still following Weber, Schmitt believed that what began as the Protestant individuation of theological authority gradually expanded into other values-​spheres, including politics and jurisprudence.95 In making this claim, Schmitt seemed also to have adopted Kelsen’s earlier arguments about the relationship between philosophical relativism and a democratic Weltanschauung.96 But unlike Kelsen, Schmitt was troubled by philosophical relativism and disenchantment. And he criticized Kelsen for conceiving of state and constitutional legitimacy in those terms.97 Schmitt believed that this process had peaked with the work of Georges Sorel, who politicized philosophical irrationalism.98 Schmitt described Sorel’s justification. Franz L. Neumann, “The Social Significance of the Basic Laws in the Weimar Constitution” (1981) 10 Economy and Society 333; Franz L. Neumann, “The Decay of German Democracy” in W.E. Scheuerman (ed), The Rule of Law under Siege (University of California Press 1996) 31.   Schmitt, “The Plight of European Jurisprudence” 44–​5; Cf. 44–​64.

92

 Schmitt, Political Theology 46ff.

93

  Karsten Fischer, “Hobbes, Schmitt, and the Paradox of Religious Liberality” (2010) 13 Critical Review of International Social and Political Philosophy 399, 400; Cf. David Dyzenhaus, “Leviathan in the 1930s: The Reception of Hobbes in the Third Reich” in John P. McCormick (ed), Confronting Mass Democracy and Industrial Technology: Political and Social Theory from Nietzsche to Habermas (Duke University Press 2002) 174. But Fischer reverses the relationship. 94

 Schmitt, The Crisis of Parliamentary Democracy 22.

95

  Cf. Hans Kelsen, “State-​Form and World-​Outlook” in Ota Weinberger (ed), Essays in Legal and Moral Philosophy (Reidel Publishing Co. 1974); Hans Kelsen, “God and the State” in Ota Weinberger (ed), Essays in Legal and Moral Philosophy (Reidel Publishing Co. 1974); Hans Kelsen, “On the Essence and Value of Democracy” in Arthur J. Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2002). 96

  Cf. Christoph Schönberger, “Elitenherrschaft für den sozialen Ausgleich: Richard Thomas ‘realistische’ Demokratietheorie im Kontext der Weimarer Diskussion” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 166. 97

  For Sorel’s debts to Bergson, see Georges Sorel, Reflections on Violence (Thomas Ernest Hulme and Jeremy Jennings trs, Cambridge University Press 2009) 113ff, 237. 98

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theory of the myth as “the most powerful symptom of the decline of the relative rationalism of parliamentary thought.”99 Schmitt argued Sorel buried the last vestiges of natural law when he declared irrationality and intuition to be virtues and urged avoiding all deliberation, any reasoning, with the bourgeoisie.100 Sorel argued that victory could only come through reason’s antithesis:  spontaneity and direct violence.101 Sorel’s political theory was in turn put into practice by movements like fascism and communism.102 Inspired by Sorel, these total movements did not care about relative rationalism or liberty. Yet they were inherently unstable and Schmitt argued the closest thing to political community either could generate was fanaticism—​ community based on pathos, rather an Idea.103 Neither could withstand the effects of its own irrationalism in the long run, which undermined whatever solidarity and community the state generated. In an unmistakable reference to Weber, Schmitt wrote that the pathos irrationalist movements thrived on and encouraged led to disintegrative pluralism, which, “for political theology, is polytheism.”104 Movements like fascism and communism were symptoms of the disintegrative effects that twentieth-​century relativistic “political theology” had on the state. Polytheism drove states toward irreconcilable politicized pluralism. Similarly, Schmitt saw disenchantment driving democratization. Kelsen had argued that philosophical relativism was an essential justification for democratic legitimacy.105 Schmitt agreed that relativists like Kelsen would conclude in a democratic society and a legal system whose laws and the 99  Schmitt, The Crisis of Parliamentary Democracy 76. Despite frequent depictions of Schmitt as sympathetic to politicized irrationalism in the secondary literature, I find little indication that Schmitt was either sympathetic to extremist mass movements or to irrationalism itself. Cf. Reinhard Mehring, “Ein ‘katholischer Laie deutscher Volks-​und Staatsangehörigkeit’? Carl Schmitts Konfession” (2012) Supl. Extroaordinario Revista de Ciencias Sociales.

 Schmitt, The Crisis of Parliamentary Democracy 69; Cf. Mehring, Carl Schmitt:  A  Biography 139–​40. Some have argued Schmitt esteemed Sorel. (Stathis Gourgouris, “The Concept of the Mythical (Schmitt with Sorel)” (1999–​2000) 21 Cardozo Law Review 1487; John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press 1997) 16, 103–​4, 191–​2). But Schmitt writes Sorel politicized Bergson, continued Bakunin’s tradition, valorized mass pathos, and was ultimately an irrationalist. Given how Schmitt despised all these, it seems difficult to reconcile any admiration for Sorel with Schmitt’s actual writings. Cf. Cristi 89. 100

  Sorel 78, 85, 105, 175, 211ff, 246ff, 279ff; Cf. Schmitt, The Crisis of Parliamentary Democracy 71.

101

  Cf. Schmitt, “State Ethics and the Pluralist State” 319; Schmitt, Legality and Legitimacy 48.

102

  Cf. Mehring, “Liberalism as a ‘Metaphysical System’ ” 115; Peter C. Caldwell, “Controversies over Carl Schmitt: A Review of Recent Literature” (2005) 77 The Journal of Modern History 357, 371. Mehring draws attention to Schmitt’s qualified “endorsement” of fascism: although fascism may have been preferable to bolshevism, both were ultimately too dangerous and destructive of stability and community. As I discuss in Chapter 3, Schmitt did appreciate fascism’s Hegelian aspects. But its dependence on the masses made it too unreliable and unstable a state form. 103

 Schmitt, The Crisis of Parliamentary Democracy 76.

104

  For example, see Kelsen, “God and the State”; Kelsen, “State-​Form and World-​Outlook.”

105

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normative commitments those laws realized were justified only through facticity: the number of people who held those commitments without regard to the rationale or justification for holding them. Law here, Schmitt believed, became the command of an enthusiastic majority. And here too Schmitt was unconvinced a procedure could provide an enduring basis for public order and stability. Overall, disenchantment politically impacted the bourgeois Rechtsstaat by undermining its capacity to generate consensus on legitimate policies and laws through relative reasoning. Hofmann argues that this discrepancy between the idea and reality of parliament was destroying the state and public order.106 The nineteenth-​century bourgeois Rechtsstaat had presupposed its citizens were at least committed to the value of reason and could be united on that basis. Yet movements inspired by Sorel, like fascism and communism, were openly hostile to reason. Moreover, worldviews like fascism, communism, and liberalism were mutually exclusive. So there could be no “cunning of reason.” There was no willingness to listen or to compromise.107 The crisis in reason affected rational-​legal legitimacy too.108 Rational-​legal legitimacy was divorced from any rational content and became merely formal and procedural.109 Under these circumstances, the legislative acts of parliament, Schmitt argued, may have had the appearance of legitimacy because of their formalism. But this appearance did not completely hide the fact that the crisis in reason had turned law into a reflection of will. It has been argued that Schmitt rejected the values of parliamentarism and relative reason. For example, Kalyvas writes that Schmitt “renounced the political significance of speech as a means of will formation.”110 But, as we have seen, Schmitt did believe there were circumstances in which these nineteenth-​century institutions worked. Schmitt criticized the introduction of parliamentary institutions to circumstances they did not fit—​where the participants were openly hostile to values of discursive reasoning and compromise, presuppositions of parliamentarism. Nevertheless, Schmitt thought, parliamentarism could persist long after its “idea” lost its legitimacy.111 He wrote “[Weimar’s parliament] lost its moral and intellectual foundation and only remained standing through sheer mechanical perseverance as an empty apparatus.”112 Its concrete existence   Hofmann 97–​8, 103; Cf. Maus, Bürgerliche Rechtstheorie und Faschismus 30.

106

 Schmitt, Der Hüter der Verfassung 88, 101; Cf. Roth 149–​50.

107

 Schmitt, Constitutional Theory 106; Schmitt, Legality and Legitimacy 97.

108

 Schmitt, Legality and Legitimacy 11, 97.

109

 Kalyvas 125.

110

 Schmitt, The Crisis of Parliamentary Democracy 3, 8.

111

 Schmitt, Political Theology 46; Schmitt, The Crisis of Parliamentary Democracy 21; Cf. Schmitt, Legality and Legitimacy 23–​4. Mehring, “Liberalism as a ‘Metaphysical System’ ” 118–​22. See Smend’s remark “ideology can decay and integration remain.” Ibid 118. 112

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provided it with a sort of temporal momentum that kept it alive long after the conditions it was intended to apply to had decayed or vanished. He saw parliament as a shade [Schattendasein], writes Hofmann; its existence a mere façade behind which other political forces hid, including enemies of the constitution.113 As a result, Schmitt believed Weimar’s parliamentary democracy had become an arena in which parties—​uninterested in reasonability, and compromise for the common good and driven by their fundamentalist worldviews—​struggled for power over one another by manipulating the newly enfranchised masses. c.  Manipulating mass democracy While Schmitt was troubled by the irrationalism and pluralism of modern mass democracy, he was more troubled by the potential for manipulation it invited. He describes how “a modern election [became] a technique to put the masses in motion, by virtue of which they are exposed to a committee.”114 He writes universal suffrage gave (the strongest) voice to the least educated, the least capable of reason, the least likely to revise their beliefs in light of better arguments, and the most susceptible to emotional and psychological manipulation.115 He believed their enfranchisement opened a direct route for politicized irrationalism to destabilize the state. But the irrationality of the masses was by itself a minor problem when compared to the effects of the manipulation of that irrationality by movements hostile to the state and constitution. As early as 1923, Schmitt focused on the explosion of social-​psychological work on crowds, parties, mass psychology, and other similar phenomena had expanded the power to manipulate the masses even as it revealed its existence.116 While voters were manipulated before the twentieth century, Schmitt thought “modern” techniques were qualitatively different. The advent of the sciences of sociology and psychology had greatly expanded the possibilities for manipulation.117 At the same time, communications innovations broadened the reach of that power. Schmitt wrote “today, everyone knows how routinely and safely a massive ‘psycho-​technical’ apparatus can  Hofmann 98.

113

  Carl Schmitt and Rudolf Smend, “Auf der gefahrenvollen Straße des öffentlichen Rechts” Briefwechsel Carl Schmitt—​Rudolf Smend 1921–​1961 (Reinhard Mehring ed, Duncker & Humblot 2010) 40–​1 (my translation). 114

 Schmitt, Constitutional Theory 280, 334–​7.

115

  Schmitt was most influenced by Michels and Lippmann, to whom he sent Political Theology and The Crisis of Parliamentary Democracy. Carl Schmitt and Ludwig Feuchtwanger, Briefwechsel 1918–​1935 (Rolf Rieß ed, Duncker & Humblot 2007) 192–​3; Cf. Schmitt, The Crisis of Parliamentary Democracy 6, 20; Paul Gottfried, Carl Schmitt (Claridge Press 1990) 20. 116

 Schmitt, The Crisis of Parliamentary Democracy 6, 20; Schmitt, Constitutional Theory 206, 275.

117

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be used to mold the masses through propaganda and how easy it is to make moral pathos subservient to political intentions.”118 Twentieth-​century scientific and technological advances yielded a powerful tool for shaping the will of “the people.” Schmitt was in particular concerned about the impact of visual media on the masses—​enough to remark in Constitutional Theory that, in contrast to other forms, freedom of speech in film should not be protected.119 He felt its power over emotions was too great to be left unregulated. This concern would be reproduced in the 1970s regarding television.120 Schmitt was also concerned about radio’s potential for abuse.121 Schmitt held printed media in a higher regard.122 He argued it was an important institution for promoting reason and individual freedom that enabled the formation of a rational public opinion by spreading information and helping individuals to form and refine their opinions and beliefs. Yet, Schmitt was concerned that the printed media in the twentieth century was becoming a tool for concentrated private powers to beam their interests and views directly into the uncritical masses and “dominate public opinion.”123 He worried that advanced capitalism in particular had twisted the press against itself, so press freedoms could be turned against their original liberal purpose.124 The institutional guarantee of the freedom of the press was justified, Schmitt argued, as a means to further the more intangible and more difficult to institutionalize value of individual liberty, rooted in liberal metaphysics. Yet, Schmitt cautions, these institutional guarantees can develop a life of their own. In the case of freedom of the press, he worried it was moving toward no longer safeguarding individual liberty at all   Schmitt, “Macchiavelli. Zum 22. Juli 1927” 104–​5. My translation.

118

 Schmitt, Constitutional Theory 206–​7.

119

 Carl Schmitt, “Von der TV-​Demokratie. Die Aggressivität von Fortschritts” Deutsches Allgemeines Sonntagsblatt ( June 28). 120

  Schmitt, “Weiterentwicklung des totalen Staats in Deutschland” 185-​6.

121

 Carl Schmitt, “Diskussion über Presse und öffentliche Meinung” in Deutsche Gesellschaft für Soziologie (ed), Verhandlungen des Siebenten Deutschen Soziologentages: vom 28 September bis 1 Oktober 1930 in Berlin; Vorträge und Diskussionen in der Hauptversammlung und in den Sitzungen der Untergruppen ( J.C.B. Mohr 1931) 57–​9; Schmitt, Der Hüter der Verfassung 84–​7; Schmitt, Legality and Legitimacy 87; Schmitt, Constitutional Theory 206; Carl Schmitt, “Strong State and Sound Economy” in Renato Cristi (ed), Carl Schmitt and Authoritarian Liberalism (University of Wales Press 1932) 217, 219. For more on Schmitt’s approach to press freedoms, see the section in Chapter 6 about Schmitt’s theory of Institutional Guarantees. 122

 Schmitt, The Crisis of Parliamentary Democracy 20; Schmitt, Der Hüter der Verfassung 87; Schmitt, “Diskussion über Presse und öffentliche Meinung” 57–​8; Schmitt, “The Age of Neutralizations and Depoliticizations” 139–​ 40; Schmitt, “Konstruktiv Verfassungsprobleme” 58-​ 9; Cf. Ernst-​ Wolfgang Böckenförde, “The Concept of the Political:  A  Key to Understanding Carl Schmitt’s Constitutional Theory” in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 47; Scheuerman 94. 123

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 170–​1.

124

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but instead ensuring private socio-​economic powers’ “right” to manipulate individuals by controlling their information, by extension determining how they perceived and understood the world. Similarly, Schmitt argued, film and radio were oligarchical and would be used by those wielding their power to advance their own agenda. Schmitt cautioned that technology was neutral with respect to its purpose. Technology could be revolutionary or reactionary, liberating or oppressive.125 In Weimar, far from advancing human freedom, Schmitt believed that technology only increased the potential for very powerful movements to dominate large swaths of society. They manipulated “the immediate interests and passions” of the masses to win as much “legitimacy” as possible for their particular interests.126 In an age of monopolies and the collapse of the rule of reason, classical liberal freedoms like freedom of the press were bent against their original purpose.127 But because of the belief in the qualities of these freedoms as essential freedoms, their perversion into undemocratic and illiberal was imperceptible. d.  Warring gods in the arena of twentieth-​century parliament Weimar’s parties and movements had adapted to these changes, incorporating them into their methods for obtaining power. Each movement had a massive organizational apparatus devoted to maintaining, reinforcing, and expanding its base and pursuing its factional interests, including newspapers, propaganda machines, bureaucracies and hierarchies, and, in most cases, even a private army.128 Even the SPD had such an apparatus, including a paramilitary army the Reichsbanner Schwarz-​Rot-​Gold. Because of this apparatus, Schmitt believed “[these movements] encompassed their members in respect to their worldview and their economic and other perspectives [and] transform all jurisdictions into points in their power constellations.”129 They enabled a “collusion of press, party, and capital” both to undercut individual liberty and hijack the people’s will for their own projects and interests. Schmitt argued these movements were total.130 Each movement, and its corresponding party, was inflexibly organized according to a particular   Karl Löwith, “Max Weber und Carl Schmitt” (2007) 2 Zeitschrift für Kulturphilosophie 365, 370–​1; McCormick 24ff. 125

 Schmitt, The Crisis of Parliamentary Democracy 6–​7.

126

 Ibid 20; Schmitt, Der Hüter der Verfassung 83–​4; Schmitt, “Diskussion über Presse und öffentliche Meinung” 57–​8; Carl Schmitt, Gespräch über die Macht und den Zugang zum Machthaber (Klett-​Cotta 2012) 16. 127

 Schmitt, Der Hüter der Verfassung 83; Schmitt, “Strong State and Sound Economy” 219.

128

 Schmitt, Legality and Legitimacy 87.

129

  See also Franz Neumann’s characterization of Weimar’s total movements and parties. Neumann, “The Decay of German Democracy” 31–​2. 130

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worldview.131 In the case of Weimar, he thought five irreconcilable total movements had politicized parliament and turned it into an arena [Schauplatz] in which each movement vied for the right to impose their beliefs across the entire community.132 In particular, the Communists and Nazis were totally opposed to the commitments defining the Weimar state and constitution.133 Hofmann writes that for Schmitt “the Reichstag, torn and nearly incapacitated, reflected the pluralism of anonymous dominating power and interest groups.”134 They participated in its institutions solely because these institutions could be turned into tools to dominate both the Weimar state and one another. This all was evidence that the German “people” had ceased to be politically homogenous and that parliamentarism was incapable of regenerating any shared commitments. Yet Weimar’s democrats and statutory positivists tended to interpret liberalism’s epistemological reservation politically as a commitment to value-​ neutrality and the “equal chance to obtain office.”135 Accordingly, from their perspective, any belief—​no matter its content—​had to be treated as potentially politically legitimate and be given the opportunity to compete in democratic elections. This, they believed, was the purpose of the Weimar state and constitution. Because Weimar democrats were principally committed to recognizing the participatory rights of any and every belief-​holder—​no matter how extreme their beliefs were—​they had no basis to oppose the Nazi and Communist parties’ participation in parliament. And extremists were probably thrilled by the predominance of the statutory positivist interpretation.136 By conceiving of the constitution as a tool for furthering any worldview and any commitment, the positivist interpretation seemed to condone extremist abuses. The coincidence of democratic legitimacy and statutory positivism had “denatured into a weapon of civil war.”137 Thus, democratic value-​neutrality and the equal chance to participate politically provided total movements with the opportunity to colonize the state and promulgate their political values, all under the guise of democratic legitimacy.138 The  Schmitt, Der Hüter der Verfassung 84, 88, 90; Schmitt, Legality and Legitimacy 87ff.

131

  Schmitt, “Strong State and Sound Economy” 220; Cf. Schmitt, Der Hüter der Verfassung 85; Schmitt, Constitutional Theory 341–​2; Reinhart Koselleck, Critique and Crisis:  Enlightenment and the Pathogenesis of Modern Society (The MIT Press 1988) 70, 84–​5. Besides the Nazis (NSDAP) and Communists (KPD), the other three movements must have been the SPD, the Catholic Zentrum, and the conservative nationalists (DNVP). 132

 Schmitt, Political Romanticism 13; Cf. Cristi 80.

133

 Hofmann 156.

134

 Schmitt, Legality and Legitimacy 48; Cf. Cristi 115.

135

  Hofmann 249; Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik (Duncker & Humblot 1999) 87. 136

  Hofmann 19–​20.

137

  Schmitt, “Die Wendung zum totalen Staat” 151–​2; Schmitt, Legality and Legitimacy 87–​8; Cf. Weber, Economy and Society: An Outline of Interpretive Sociology 641–​900; John P. McCormick, “Max Weber and the 138

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predominance of this procedural interpretation had left liberalism unable to recognize its Enemies.139 Against this prevailing interpretation of Weimar’s political and legal situation, Schmitt argued that merely satisfying the formal requirements for enacting law did not actually generate rational-​legal legitimacy.140 He argued that not all legislation automatically became legitimate simply because a numerical majority had rammed it through parliament.141 He thought technical attempts at generating an overlapping consensus could not bridge the substantive differences among Weimar’s total movements.142 Liberalism on communists, communism on fascists, fascism on liberals—​not one of these movements would consider legitimate the major political and constitutional changes the others respectively sought. There was not even agreement among them that the “rules of the game” of parliamentary democracy themselves were reasonable or legitimate. By severing the relationship between law and reason, Schmitt argued statutory positivism had unintentionally installed the tyrannical principle sic volo sic jubeo [I want this, I command this] at the heart of the state—​repackaged for mass democracy as “lex est, quod populous jubet [law is what the people command].”143 Despite the aspiration of the Weimar constitution to create a rule of law, its institutions smuggled in the rule of man. For Schmitt, the possibility for any movement to use the state’s legislative mechanisms to impose its values—​no matter what they were—​across all society represented a qualitative shift in the relationship between state and society. With, as Kervegan puts it, the state reduced to merely a mechanism or a procedure for applying the will of whoever controlled it, it was no longer the state or the constitution that politically organized society.144 The state and constitution mechanically reproduced the agenda of social movements aggravating internal political factionalism.145 He thought that Legal-​Historical Ramifications of Social Democracy” (2004) 17 Canadian Journal of Law and Jurisprudence 143, 149–​52; John P. McCormick, “Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’s Legality and Legitimacy” in Jeffrey Seitzer (ed), Legality and Legitimacy (Duke University Press 2004) xiv.  Berthold 54ff.

139

 Schmitt, The Crisis of Parliamentary Democracy 21; Schmitt, Constitutional Theory 306; Schmitt, Legality and Legitimacy 48. 140

 Schmitt, Legality and Legitimacy 11, 43, 97; Cf. Schmitt, Constitutional Theory 303–​7.

141

 McCormick, Carl Schmitt’s Critique of Liberalism 42–​6, 69–​72, 166ff.

142

 Schmitt, Legality and Legitimacy 20, 23; Cf. ibid 29; Schmitt, Constitutional Theory 183; Carl Schmitt, “Das Problem der Legalität” in Verfassungsrechtlich Aufsätze aus den Jahren 1924–​1954 (Duncker & Humblot 2003) 55, 62. 143

  Jean-​François Kervegan, “Politik und Vernünftigkeit Anmerkungen zum Verhältnis zwischen Carl Schmitt und Hegel” in Helmut Quaritsch (ed), Complexio Oppositorum:  Über Carl Schmitt (Duncker & Humblot 1988) 376. 144

 Schmitt, Constitutional Theory 275–​6; Schmitt, “Strong State and Sound Economy” 219.

145

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parliament itself underwent a transformation from the republican representation of the common interest to a space where delegates from politicized factions competed.146 As a result, parliament was no longer the guardian or representative of the public good and the values of Weimar’s constitution. It was becoming its enemy. e.  The structural transformation of the total state Schmitt defined an authentic state as qualitatively total.147 This concept will be discussed in Chapter  3. But briefly, a qualitatively total state is “strong enough” both to maintain its authority over whatever is “political” and to liberalize and withdraw from spheres of society that fall outside that political identity.148 No total party or movement could triumph decisively in the struggle to determine its public order because the constitution itself determined what the core political commitments of the state were.149 Accordingly, the possibilities of democratic legislation were limited by the constitution. Yet the predetermined nature of the public order defined the limits of state intrusion into social, non-​political spheres. Because of this firm distinction, Schmitt conceived of the qualitatively total state as a depoliticizing force because it acted as the disinterested arbiter of social disputes. The qualitatively total state was defined by its adamant enforcement and guardianship of the community’s political status and its judicious neutrality outside that political domain. A consequence of mass democratization was the instrumentalization of parliament by total movements to enact their particular social, economic, religious, and cultural agendas into positive law. According to Schmitt, this situation created something like an arms race, whereby every movement risked being dominated by others if it did not seek to control the state via parliament.150 As control alternated among total movements and as each sought to defend, entrench, and expand its own particular worldview, the entwinement of state and society deepened and widened.151 Schmitt saw the state, Kervegan argues, as having been colonized and commandeered by society; society had become self-​organizing.152 Schmitt argued that the state  Schmitt, Legality and Legitimacy 27.

146

  Schmitt, “Strong State and Sound Economy” 217.

147

 Schmitt, Legality and Legitimacy 90, 92; Schmitt, “Weiterentwicklung des totalen Staats in Deutschland” 186–​7; Schmitt, “Strong State and Sound Economy” 217; Cf. Cristi 19, 31; Galli, La Genealogia della Politica 370, see in general 364–​79. 148

 Schmitt, Der Hüter der Verfassung 83–​4; Cf. Cristi 27; Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton University Press 1983) 280. 149

 Schmitt, Der Hüter der Verfassung 79–​82.

150

 Schmitt, Legality and Legitimacy 92; Schmitt, Der Hüter der Verfassung 79; Schmitt, “Strong State and Sound Economy” 218–​19. 151

  Kervegan 376–​7.

152

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becomes more and more of an administrative state as its legislative activity envelopes society.153 The state determines large swaths of every subject’s life. The competition among the total parties prevented the state from settling on any definite order and determining which spheres should be regulated and which left autonomous. Clarity was lost over what was political, that is what fell under the state’s authority, and what was non-​political. State and society fused. In the end, Schmitt seems to argue, many feel the state dominating their lives and many come to resent it. Schmitt thought the social sphere most interpenetrated with the state was the economy.154 And while each total party vied to use the state to legislate its vision of what “right” economic relations were, the reverse was also true and private economic powers were successfully dictating to the state what public policy should be. State and economy had become codetermining.155 Ostensibly private decisions had profound effects on the state, especially its military and defense, as well as on core segments of industry, such as high finance and railroads.156 To explain the new relationship of state and economy, Schmitt appropriated Popitz’ concept of “polycracy.” A polycracy was a system of juridically autonomous and independent firms legally and formally operating outside the state’s discretion yet affecting the state’s ability to function because they commandeer state competencies while undermining its autonomy to make political decisions.157 Through their lobbying power, polycratic firms demand concessions from the state that further undermined its political autonomy and its authority.158 As a result of this interpenetration, Schmitt writes, the nineteenth-​ century antithesis of state and society collapsed.159 The state had undergone a structural transformation.160 The domination of the state by a secession of total movements had rendered the state total in a different, inauthentic sense. Schmitt used the term “quantitative” to reflect its unprincipled nature—​that it was a superficial attempt to reproduce the meaningful or substantive totality that it once had. It had become quantitatively total because there was no longer a sphere of society that was liberalized and stood outside the state’s legislative oversight. Such a state was no longer an authentic state at all but instead reflected the politicization of society.161 And lacking clarity on what   Schmitt, “Strong State and Sound Economy” 223, 227.

153

  Ibid 225–​6; Schmitt, “Demokratie und Finanz” 86–​7; Schmitt, Der Hüter der Verfassung 82.

154

 Schmitt, Der Hüter der Verfassung 80.

155

 Ibid 107ff.

156

  Ibid 91–​2, 107. Cf. Schmitt, Legality and Legitimacy 142.

157

 Schmitt, Der Hüter der Verfassung 106.

158

  Schmitt, “Die Wendung zum totalen Staat” 146–​7.

159

 Schmitt, Der Hüter der Verfassung 80.

160

  Schmitt, “Strong State and Sound Economy” 219; Cf. Cristi 140–​1, 180; Heinz O. Ziegler, Autoritärer oder Totaler Staat ( J. C. B. Mohr (Paul Siebeck) 1932) 8. 161

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its basic public order consisted in, the state could no longer neutralize or depoliticize antagonistic factions.162 Schmitt believes two undesirable political outcomes unfold in the parliament of a quantitatively total state. First, parliament may become impotent, incapable of political action because parties too weak to impose their will are nevertheless strong enough to prevent parliament from accomplishing even the most minimal governmental functions, like passing budgets and emergency spending or addressing a crisis.163 More than mere harassment, these acts undermine the legitimacy of both parliament and the state as a whole as crises become aggravated by government inaction. Second, and far more alarming, parliament in a quantitatively total state commits apocryphal acts of sovereignty. This next section addresses this problem. f.  Apocryphal sovereignty in parliament Schmitt argues, the presence of these total movements enable parliamentary “ruptures” of the constitution. They may pass substantively unconstitutional but formally legitimate law. Schmitt cautioned that ad hoc parliamentary majorities were able to make individual “exceptions” to constitutional rules without changing the content of the constitution itself.164 Through these “exceptions,” constitutional practice came to differ from the written constitution. But Schmitt argued the far more threatening source of constitutional ruptures came from Article 76, which governed constitutional amendments.165 Because, according to statutory positivism, the only restriction on the exercise of Article 76 was adherence to the procedures in effect, the entire constitution could in fact be amended out of existence if an antidemocratic and illiberal parliament attained sufficient popular support. Caldwell and Kalyvas both note how, for Schmitt, these constitutional “ruptures” demonstrated parliament’s alarming capacity to assume sovereignty apocryphally, to make sovereign decisions without actually possessing sovereign authority.166 Constitutional ruptures were not just a theoretical problem. Schmitt writes the authors of the Weimar constitution, Preuß and Triepel, had rightly protested the increasing regularity of this practice.167 Total movements used whatever ephemeral majority they could cobble together to enact and expand their particular Weltanschauung.168 And, as a temporary majority, they tried to limit the possibility for other movements   Cf. Loughlin 349–​50.

162

 Schmitt, Der Hüter der Verfassung 115–​21; Caldwell 372.

163

 Schmitt, Constitutional Theory 154ff, 216–​17.

  Ibid 215–​17.

164

165

  Ibid 188; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Duke University Press 1997) 105–​6; Kalyvas 176ff. 166

 Schmitt, Constitutional Theory 155–​6.

167

 Schmitt, Der Hüter der Verfassung 89–​91.

168

62

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The Challenge of Mass Democracy

to gain a majority, effectively kicking down the ladder to power that equal chance represents. Parliament also committed other apocryphal sovereign acts. Schmitt writes parliament began to tacitly breach the limits of the legislative branch, expanding into the executive. According to the distributional principle of the bourgeois Rechtsstaat, parliament should only be able to determine the content of general, formal statutes and the executive branch should execute the general statutes that parliament passed.169 But, in fact, Schmitt thought it had managed to assume executive power by enacting statutes that were not formal.170 In addition, he argues, parliament’s authority to appoint both judges and bureaucrats undermined the independence of the other two branches.171 g.  Mass democracy and democratic legitimacy While Schmitt most explicitly attacks parliamentary democracy, his criticism of democracy goes beyond parliamentarism.172 Schmitt trashes universal suffrage. He also criticized the secret ballot, which he dismisses for enabling politics to become egoistic (a concern perhaps also inspired by Mill’s Considerations on Representative Government).173 He argues it reduces the democratic process to merely a private, individual act in which a voter is publically unaccountable. He argues the secret ballot shifts the popular will from being a volonté générale to an aggregated, apolitical volonté des tous, undermining the common interest and public authority.174 Much of Schmitt’s criticism of Weimar’s parliamentary democracy is broadly oriented by his concerns about its ability to transform the German multitude into a politically unitary people. Because of his focus on parliamentarism and related features, Schmitt has been read as a proponent of plebiscitary democracy. Indeed, when one reads his The Crisis of Parliamentary Democracy (1923), Schmitt does appear to endorse it. Although he raises concerns about its polytheistic qualities, he writes that dictatorial and Caesaristic democratic methods, unlike liberal democratic ones, “not only can produce the acclamation of the people but can also be a direct expression of democratic substance and power.”175 Read alongside his arguments that the people is a strictly “public” and “present” entity, Schmitt does seem to make a case for plebiscitary democracy.  Schmitt, Constitutional Theory 191, 214.

 Schmitt, Der Hüter der Verfassung 130.

169

170

  Ibid 100–​8; Schmitt, Legality and Legitimacy 31.

171

  I am indebted to Nadia Urbinati for pushing me to take up this discussion.

172

 Schmitt, The Crisis of Parliamentary Democracy 16; Schmitt, “Der bürgerliche Rechtsstaat” 48; Schmitt, Constitutional Theory 256,273–​4. I am indebted to Jennie Ikuta for bringing to my attention Schmitt’s parallels to Mill on this matter. 173

 Schmitt, Constitutional Theory 274.

174

 Schmitt, The Crisis of Parliamentary Democracy 17.

175

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Modern Mass Democracy 

63

But Schmitt’s arguments in The Crisis of Parliamentary Democracy are not so unequivocally positive. There, although Schmitt writes plebiscitary democracy is a better expression of the people’s will than the aggregate private wills expressed in parliamentary democracy, he also argues the dictatorial methods needed to produce this “more democratic,” more direct public will may well make it as illegitimate as parliamentary democracy methods of political will formation. He also writes that, while political power should ideally come from the people’s will, the experience with bolshevism shows how little democratic legitimacy actually requires the people.176 He concludes that, whether one uses parliamentary or plebiscitary procedures, the will of the people is something manufactured (and manipulated). Schmitt suggests in this text, that although plebiscitary democracy is a more legitimate expression of the will of the people, it is so only relatively. Schmitt’s view had changed by 1928, however. In Constitutional Theory and “Der bürgerliche Rechtsstaat,” he criticizes plebiscitary democracy as well as parliamentary democracy. He writes that “the people” make no actual decision in either form of democracy. In plebiscitary democracy, political decisions are often already fait accompli when they are presented to a plebiscite.177 Moreover, in plebiscites, “the people” most often take the path of least resistance and choose the easier option—​whatever that may be.178 Finally, Schmitt notes that all real power resides in whoever poses the questions to the plebiscite in the first place. From this analysis, plebiscitary democracy appears to be both politically impotent and highly manipulable.179 Plebiscitary democracy then suffers from the same objections Schmitt deployed against parliamentary democracy, including the apocryphal exercise of sovereignty. By 1932, Schmitt condemns plebiscitary democracy in Legality and Legitimacy. He criticizes Weimar’s provisions for plebiscitary democracy alongside parliamentary democracy, noting both are located in its First Principal Part. Schmitt writes there is no reason why plebiscitary democracy should be accorded higher constitutional value than parliamentary democracy in determining Weimar’s core constitutional questions.180 He argues that plebiscitary democracy only exacerbates the (already problematic) “majoritarian functionalism” of Weimar democracy.181 He reprised his 1928 arguments, arguing that in plebiscites the people do not actually govern at all—​at most, they can sanction decisions already made.182 He added that, unlike in parliament, plebiscitary democracy presupposes an authority posing it questions.183 This higher authority is the true representative of the   Ibid 28–​9.

  Schmitt, “Der bürgerliche Rechtsstaat” 48–​9.

176

177

 Schmitt, Constitutional Theory 305; Schmitt, “Der bürgerliche Rechtsstaat” 48–​9.

178

 Schmitt, Constitutional Theory 304.

179

 Ibid 89.

182

 Ibid 90.

183

 Schmitt, Legality and Legitimacy 60.

180

 Ibid 63.

181

64

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The Challenge of Mass Democracy

people. The plebiscite merely confirms that representation by acclaiming it. Moreover, as Berthold points out, Schmitt had come to recognize that referenda work to the advantage of the most active voters and movements.184 Circumventing parliament would not bypass the source of Weimar’s paralysis. A plebiscite would instead give those destabilizing forces freer rein and exacerbate Weimar’s crises. The popular referendum was Weimar’s clearest expression of plebiscitary democracy. And Schmitt criticized it for being more immediate, more irrational, and more emotional than Weimar’s parliament.185 He argued plebiscitary democracy was extremely dangerous as an extraordinary lawmaker.186 Kirchheimer argued that Schmitt sought to “[disqualify] the people from engaging in direct democratic decision making” altogether.187 Schmitt objected to how a referendum only needed a simple majority to petition a constitutional amendment, a lower threshold than the 67 percent supermajority required of parliament. Schmitt seemed flabbergasted by this discrepancy. He questions why one would settle for a 51 percent threshold from “a people who bursts onto the scene in its complete, though incommunicative, directness, and emotionality” when one requires a higher threshold from parliament, an institution with no less constitutional legitimacy?188 He answers there is “no compelling reason” why plebiscitary democracy should have any greater latitude in amending the constitution than parliamentary democracy and concludes “the constitution undoubtedly did not intend this.”189 In the end, Schmitt seemed to have thought much of any of the forms democratic rule could take in Weimar.190 Always, at least in the background of his thought, there is the concern about the power of a democratic majority to use positive law procedures against the state and constitution. He did not think the substantive problems of modern mass democracy would be overcome with a plebiscite.

3. 

pacta sunt servanda

and the state of war

Schmitt thought the collapse of agreement on even the most basic questions of public order demonstrated the failure of Weimar’s authority.191 Each total movement in Weimar interpreted indeterminate concepts in the constitution,  Berthold 68.

184

 Schmitt, Legality and Legitimacy 60–​4.

  Ibid 64, 91.

185

  Kirchheimer, “Remarks on Legality and Legitimacy” 82.

187

186

 Ibid 64.

188

  Ibid 60. And indeed, Schmitt seems relieved that the Bonn Grundgesetz does away with the mechanisms for popular referendum that Article 76 allowed specifically because it shields the constitution from radical democratic revision. Cf. Carl Schmitt, “Das Grundgesetz der Bundesrepublik Deutschland” in Klaus Hansen and Hans Lietzmann (eds), Carl Schmitt und die Liberalismuskritik (Leske + Budrich 1988). 189

  Schmitt, “Das Grundgesetz der Bundesrepublik Deutschland” 181.

190

 Schmitt, Constitutional Theory 184.

191

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Pacta Sunt Servanda and the State of War 

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65

such as “freedom,” “equality,” “justice,” “democracy,” and even “humanity,” in light of its particular metaphysical and political commitments.192 Weimar seemed to be stuck in the interaction of mass democracy, the celebration of irrationality, statutory positivism, and value-​relativism, which had undermined the state’s authority to reconcile the interpretations put forth by the different total movements. Each movement wrestled for control over the state in order to impose its interpretation of right order, both defensively for self-​protection and offensively to concretize “right” in the world. As each total movement obtained power and attempted to enact its interpretation of those legal concepts concretely, other movements decried their acts of determination as threats to justice, political legitimacy, democracy, and equal chance, and therefore at odds with the neutrality and liberal principles of the Weimar state.193 This behavior begged the question of whether anyone could claim to have the right and authority to interpret these concepts at all.194 While it would prevent any one total movement from obtaining permanent domination, the balance of power their plurality created was not substantial enough to provide Weimar with a basis to defend its “bourgeois” constitution.195 But Schmitt argued these ideological fissures did not stop a peculiar type of coalition from forming in parliament. Political consensus for the sake of the common good had been replaced by private “business” compromise.196 Different factions would cooperate temporarily to satisfy their immediate particular interests. But, Schmitt cautioned, quid pro quo bargaining to further private interests had nothing to do with the community as a whole.197   The Concept of the Political, 54. Schmitt famously wrote of the polemical use of the concept humanity that “whoever invokes humanity wants to deceive.” Hauke Brunkhorst remarks that despite the overuse of this citation today, Schmitt’s claim is nevertheless “sometimes correct and that there are cases of stubborn abuse in which a hegemonial power uses the egalitarian formalism of human rights so effectively that hardly anyone notices.” Hauke Brunkhorst, “The Right to War: Hegemonial Geopolitics or Civic Constitutionalism?,” Constellations 11, no. 4 (2004): 513. Schmitt illustrated this juridical indeterminacy through the meaning of basic rights. He argued there was widespread agreement that basic rights were an essential component of 20th century constitutions. Yet what constituted a basic right was completely unclear. For early 20th century liberals, basic rights were individualistic and included property rights. But, for the communists, the “basic rights” enshrined in bourgeois constitutions like the Weimar Constitution were “only the instruments of the capitalist rule of private property.” Ibid 197–​200. They were not basic rights at all but their antithesis and a barrier to the realization of authentic basic rights. These two interpretations came to a head as the Stalin-​backed KPD tried to seize power to concretize its substantive commitments. Interpretative impasses resolved only through the exercise of power. Cf. Martin Loughlin, “Politonomy” in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2015) 5. Schmitt points out that this indeterminacy even included the concept Rechtsstaat, which “could mean as many different things as the word law itself.” Schmitt, Legality and Legitimacy 14. 192

 Schmitt, Legality and Legitimacy 33–​4, 92–​3.

193

  Cf. Schmitt, Constitutional Theory 88–​93.

194

  Cf. Schmitt’s discussion of the types of emergencies in Schmitt, Der Hüter der Verfassung 115–​31.

195

  Schmitt, “Strong State and Sound Economy” 220–​1.

196

 Schmitt, The Crisis of Parliamentary Democracy 6.

197

6

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The Challenge of Mass Democracy

And while business compromises could hold enmity in abeyance, it would resume once there was nothing left to be gained. And they raised deeper questions of legitimacy. He wrote that “a state dominated by these methods of the formation of political will is reduced to the principle of pacta sunt servanda and the defense of ‘established rights.’ ”198 Pacta sunt servanda is often described as a basis for forming covenants in the absence of any authoritative public legal order. But Schmitt argued this interpretation divorces the concept from its original meaning and context, which is essential to make sense of it juridically and practically. He wrote the concept originated with the Roman Praetor, who could declare “certain contracts are to be treated as valid in the execution of his office . . . The Praetor presents the agreements, for which he secures protection and execution through the official power to decide.”199 It dealt with the exercise of sovereign authority: the Praetor decided which contracts were valid, determined the meaning of those valid contracts as an authoritative but impartial third party, and guaranteed those valid contracts by the power of his office. Pacta sunt servanda presupposed a recognized juridical authority. The practice of pacta sunt servanda became profoundly different in the absence of juridical authority. Whatever juridical agreement comes about, whatever “unity” there is, is merely the result of agreements and coalitions formed with “existential reservations [existentiellen Vorbehalten].” That is, Schmitt argued “the contract [based on pacta sunt servanda] only has the sense of a peace treaty between the contracting groups, and a peace treaty, whether the parties want it or not, is always linked to the, though perhaps remote, possibility of war.”200 He adds, such agreements are politically toxic and become the means to “stab another party in the back” as soon as conditions are right.201 The contractors see one another as political enemies, even if the potential for gain leads them to suspend their enmity temporarily. Schmitt added to his discussion of the degeneration of pacta sunt servanda that, “when the decisive Friend-​Enemy groupings are determined in civil society instead of foreign relations, it is civil war.”202 When movements within  Schmitt, Der Hüter der Verfassung 110; Cf. Kalyvas 162.

198

 Schmitt, Constitutional Theory 120.

199

 Schmitt, Der Hüter der Verfassung 141 (my translation, my emphasis).

200

Schmitt quotes from his article Staatsethik und pluralistischer Staat. In the context of existential reservations, one can also refer to Schmitt’s discussion of reservations of the Kellogg Pact of 1928, which purported to abolish war (and exit the international state of nature) but in fact was filled with so many reservations [Vorbehalte] it not only failed to achieve its aim but actually created new possibilities for even more violent and polemical warfare by “giving an international hostis declaration new content and new vigor.” Carl Schmitt, The Concept of the Political (George Schwab tr, The University of Chicago Press 1996) 50–​1.   Schmitt, “The Plight of European Jurisprudence” 69–​70.

201

 Schmitt, Der Hüter der Verfassung 142.

202

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Pacta Sunt Servanda and the State of War 

• 

67

a political community no longer agree on an accepted existential core of political meaning, each side will jealously compete for the power to impose its own interpretation and existential commitments. These battles, precisely because they are so existentially important to the movements involved, bring the participants out of a state of peace and into a state of war—​where war consists not in actual fighting but in the lack of assurance to the contrary. Schmitt concluded the concept pacta sunt servanda, in the absence of sovereign authority, was practically no different from Hobbes’ war of all against all—​it signaled the total breakdown of the Weimar state. As McCormick has shown, Schmitt thought that “radical subjectivity” fractured the state and returned its inhabitants to the miserable condition of the state of nature.203 Schmitt argued that, without legitimate sovereignty backing it, the legal principle pacta sunt servanda thus lacks the capacity or even the will to decide what constitutes a valid contract or even a valid vocabulary for articulating a legal language.204 Pacta sunt servanda could not overcome the problems of Hobbes’ state of nature. And, as the Weimar state was reduced to a condition of pacta sunt servanda, each faction jealously defended whatever “rights” it had acquired on the basis of the sanctity of positive statutes. Schmitt saw parallels in the opposition between dogmas in the Confessional Civil War of Hobbes’ time and those of his time.205 That the “dogmas” in Weimar were secular did not make the resulting enmity any less vicious. And he worried Weimar was moving toward a similar outbreak of violence. Yet Schmitt also recognized that the causes of the breakdown, including the nature of civil society, technology, and even belief, were rather different from Hobbes’ time. Accordingly, Hobbes’ solutions to the problem of civil war needed to be updated too. As Schmitt was fond of noting, the great problems of democracy in the twentieth century could not be dealt with using tools from the age of Talleyrand and Louis Philippe.206 In conclusion, Schmitt had argued the source of the “changed current state of things” was that parliament had become an arena for indirect powers to struggle to seize the reins of power.207 The “objective reason” grounding the   John P. McCormick, “Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” (1994) 22 Political Theory 619, 623. 203

 Schmitt, Constitutional Theory 119–​20; Cf. George Schwab, “Enemy or Foe:  A  Conflict of Modern Politics” (1987) 72 Telos 194, 200–​1. Schwab notes that pacta sunt servanda presupposes some common status. 204

  Carl Schmitt, The Leviathan in the State Theory of Hobbes:  Meaning and Failure of a Political Symbol (George Schwab and Erna Hilfstein tr, University of Chicago Press 2008) 10–​11, 86; G. L. Ulmen, “Between the Weimar Republic and the Third Reich: Continuity in Carl Schmitt’s Thought” (2001) 119 Telos 18, 30–​1; McCormick, “Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” 621–​3. 205

  Schmitt, “Vorwort zu Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles (1940)” 5.

206

  Carl Schmitt, “Im Vorraum der Macht: Aus einem Gespräch über den Einfluß auf den Machthaber” Die Zeit ( July 29). Reproduced as the “Intermezzo” to, Gespräch über die Macht und den Zugang zum Machthaber. 207

68

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The Challenge of Mass Democracy

rule of law had given way to the “subjective interests” of the shifting and contradictory motives of various “egoistic parties and factions.”208 Parliament’s representative character had eroded, publicity has given way to arcane committees, lobbying groups, and business interests.209 Schmitt argued mass democracy’s effects on parliament not only affected the rational-​legal legitimacy of the laws it produced, but also the limits of the constitution on legislation and the separation of powers. Parliament in this quantitatively total state was rewriting, and effectively abandoning, the liberal principles at the heart of the Weimar Constitution. Statutory positivism, in conceiving of legislative procedures as the foundation of the state and constitutional order, had changed the nature of parliament in a quantitatively total state. Statutory positivism’s approach to legislative change and democratic procedures, Schmitt believed, had allowed extremist parties to exercise sovereign power apocryphally in order to dismantle Weimar from within. Democracy, Schmitt thought, could be a beneficial and functional system of government, but only when the parties within a state shared a basic set of beliefs and commitments, which would enable them to form governing coalitions through compromise and agreements and the recognition of the other parties’ right to govern. As Schmitt succinctly puts it, parliament in a politically stable state “presents only differences of opinion, not a Friend/​ Enemy Grouping.”210 This was not the case in Weimar. Its total movements were inimically opposed to one another and, in some cases, did not even recognize the legitimacy of liberal democracy—​let alone any common commitments with one another. But to make full sense of his claim, it is necessary to analyze Schmitt’s concept of the political directly.

  Schmitt, “The Plight of European Jurisprudence” 48–​9.

208

 Schmitt, Constitutional Theory 341–​ 2.   210  Ibid 345 (my emphasis).

209

 69

•2• The Concept of the Political

“The concept of the state presupposes the concept of the political.”1 Schmitt claimed this first sentence of his well-​known The Concept of the Political was state theory’s “Copernican moment.”2 In two overlooked passages, he emphasized just how important he thought it was for making sense of his state and constitutional theory. In his 1963 “Foreword” to The Concept of the Political, Schmitt reflected, Who could understand such an abstractly formulated thesis? To me it is still unclear whether it made sense to begin this analysis with such a lack of clarity and abstraction, for often the first sentence decides the fate of a publication. Yet this almost esoteric conceptual assertion is not entirely out of place here. This provocative thesis encapsulates what was intended to be understood by its audience in the first place, namely those familiar with the jus publicum Europaeum, its history, and its current problems.3

And in 1970 Schmitt raised it again, The Concept of the Political begins with a sentence that I once deleted because it seemed too difficult to use as the first sentence of a text. That sentence reads, “The concept of the state presupposes the concept of the political.” It sounds too abstract. But it is a summary of everything I have experienced; with this sentence, I  can describe the entire constitutional-​juridical history of my life. Until then, every textbook of international law, constitutional law and constitutional law or administrative law defined the concept of the political in terms of the state. Political is that which refers to the state. Then I upended

  Carl Schmitt, The Concept of the Political (George Schwab tr, The University of Chicago Press 1996) 19. The sentence was not present in the original, shorter 1927 article. 1

  Carl Schmitt, “Un giurista davanti a se stesso” in Giorgio Agamben (ed), Carl Schmitt: Un giurista davanti a se stesso (Neri Pozza Editore 2012) 156. 2

  Carl Schmitt, Der Begriff des Politischen:  Text von 1932 mit einem Vorwort und drei Corollarien (3rd edn, Duncker & Humblot 1963) 13 (my translation). 3

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

70

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The Concept of the Political

this and said, the state has to be defined in terms of the political. This is an amazing twist [eine erstaunliche Wendung].4

In these passages, Schmitt raised questions for readers of The Concept of the Political: what did he “upend”; what is so esoteric about that sentence; how does it summarize his entire juridical life; how exactly does it implicate the crisis of the state; and how would the answer to these questions bear on “the political”? Schmitt’s hints suggest there is more to his concept than might appear. The political is most often defined in terms of the Friend-​Enemy distinction and its possibility of mutual killing.5 While this definition is faithful to his concept, Schmitt’s (deliberately) provocative language of “enmity” and “killing” can distract from his deeper concern for stability. Fortunately, the political, as well as the Friend-​Enemy distinction, can be de-​mystified by focusing on the relationship of the political to public order, law, and the state. This chapter will develop the political by approaching it as a descriptive concept, which identifies when a community seeks to realize a shared basic normative commitment concretely as an authoritative public status or order, to create and sustain a “right” public order—​even to the point of self-​sacrifice. Hofmann has argued that the concept of the political was Schmitt’s reformulation of that concept from German state theory.6 With his reformulation, Schmitt intended to identify and fill a theoretical gap in German state theory and public law that his colleagues were unable to recognize. Section 2 of this chapter analyzes his goals, looking in particular at what it was Schmitt had upended and why he was motivated to do so. It also answers a related, largely overlooked question: why does Schmitt rarely discuss a central concept of state theory, raison d’état? Section 3 looks at the concept of the political in terms of Schmitt’s infamous Friend-​Enemy distinction. Critics, such as Habermas and Wolin, read the political as a celebration of violence and enmity.7 Yet, as Norris has  Carl Schmitt, “Von der TV-​Demokratie. Die Aggressivität von Fortschritts” Deutsches Allgemeines Sonntagsblatt ( June 28, 1970) (my translation). 4

  Lars Vinx, “Carl Schmitt” (The Stanford Encyclopedia of Philosophy, Spring Edn, 2016) accessed January 7, 2017; Ellen Kennedy, Constitutional Failure:  Carl Schmitt in Weimar (Duke University Press 2004) 105; Gabriella Slomp, Carl Schmitt and the Politics of Hostility, Violence and Terror (Palgrave Macmillan) 21–​37.

5

  Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) XXIII–​XXIV. 6

  Richard Wolin, “Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror” (1992) 20 Political Theory 424, 433–​5, 443–​4; Jürgen Habermas, The New Conservatism (The MIT Press 1988) 137ff; Cf. William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (The MIT Press 1994) 32–​3; Jan-​Werner Müller, A Dangerous Mind: Carl Schmitt in Post-​War European Thought (Yale University 2003) 8, 20; John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press 1997) 283; John P. McCormick, “Fear, Technology, and the State; 7

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The Concept of the Political 

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71

convincingly argued, this sort of approach fails to do justice to Schmitt’s explicit goals.8 Hofmann and Böckenförde have both argued that the political focuses on identifying the conditions for Friendship; those conditions that enable a people to peacefully coexist in a public state of “togetherness” [Zusammenhörigkeit].9 Schmitt was above all preoccupied by the fact of the absence of Friendship in Weimar. That is, he was concerned about the politicization occurring within Weimar, which he thought was related to its problem of instability. His goal was to depoliticize Weimar’s antagonisms—​ rather than to fan the flames. Yet, critics’ concerns do point to a confusing tension in Schmitt’s thought: politicization and its related concepts, particularly enmity, seem directed against peace, order, and stability. While this section does not deny that enmity is a cornerstone of the political, it moves beyond enmity by examining the relationship of the political to “friendship” and “status.” Section 4 links the political to Schmitt’s understanding of the state through the concepts of status and representation. Kennedy and Böckenförde have shown that Schmitt wrote the first draft of The Concept of the Political concurrently with his Constitutional Theory and that the ideas in the former are a key to understanding the latter.10 Yet Kelly has challenged the centrality of “the political” for understanding Schmitt’s constitutional and state theory, arguing that instead representation is the crucial concept for unlocking them.11 Kelly is correct to highlight the importance of representation. But representation is already embedded in the political.12 Representation “makes present” a political community’s basis for cooperation and unity. This section develops Schmitt’s concept of representation through the lens of the political. Schmitt believed misunderstanding “the political” and its relationship to the state was a cause of Weimar’s disintegration. By focusing on these neglected aspects of the political, this chapter establishes a firmer foundation for his state theory, developed in the next chapter.

Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” (1994) 22 Political Theory 619, 626. 8

  Andrew Norris, “Carl Schmitt on Friends, Enemies and the Political” (1998) 112 Telos 68, 69–​72.

 Hofmann XXII–​ XXIII; Ernst-​ Wolfgang Böckenförde, “The Concept of the Political:  A  Key to Understanding Carl Schmitt’s Constitutional Theory” in David Dyzenhaus (ed), Law as Politics:  Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 38–​9. 9

  Ellen Kennedy, “Hostis Not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt” in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 92; Böckenförde 37, 41. 10

  Duncan Kelly, “Carl Schmitt’s Political Theory of Representation” (2004) 65 Journal of the History of Ideas 113, 114. 11

  Ibid 128–​9.

12

72

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1.  schmitt’s criticism of german state theory The meaning of Schmitt’s concept of the political and its relationship to his state theory is best situated by looking at his criticism of two well-​known turn of the century German state theorists:  Georg Jellinek and Friedrich Meinecke. Schmitt argued both misunderstood the state by overlooking its fundamental features. And Schmitt thought their oversight characterized a broader tendency of misunderstanding the state in German thought. a.  Jellinek’s subsumption of the political With that first sentence of The Concept of the Political, Schmitt claimed to have inverted a well-​established tradition of German state theory. What tradition was that? The literature in English does not directly take up this question. But there are hints. Jellinek’s Allgemeine Staatslehre (1900) was the defining German work on state theory in the early twentieth century. It should not be surprising at all that Schmitt, like most other German public lawyers of the era, conceived of his thought in dialogue with Jellinek. Indeed, several scholars working on Schmitt have noticed the relationship between his concept of the political to and Jellinek’s state theory. Kelly argues that Jellinek anticipated Schmitt’s definition of the political.13 Bhuta, Loughlin, and Caldwell all note the importance of Jellinek for the development of Schmitt’s political thought.14 And finally Böckenförde notes the inadequacy of Jellinek’s state theory when confronted by Schmitt’s concept of the political.15 Turning to scholarship on “the political” by Schönberger and Galli, the relationship between Schmitt and Jellinek becomes clearer.16 Both note how Jellinek, in his Allgemeine Staatslehre, conceived of the political as derivative of the state. By arguing the state presupposes the political, Schmitt inverted Jellinek’s definition. Analyzing Jellinek’s argument can reveal Schmitt’s own aims with the concept of the political.   Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford University Press 2003) 100; Cf. 93–​108. 13

 Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law:  The Theory & Practice of Weimar Constitutionalism (Duke University Press 1997) 41ff; Nehal Bhuta, “The Mystery of the State: State-​Concept, State-​Theory and State-​Making in Schmitt and Oakeshott” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015); Martin Loughlin, Foundations of Public Law (Cambridge University Press, 2010), 216–​21; “Nomos” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 73. 14

 Böckenförde 37.

15

 Christoph Schönberger, “‘Staatlich und Politisch’ (20–​6):  Der Begriff des Staates in Carl Schmitts Begriff des Politischen” in Reinhard Mehring (ed), Der Begriff des Politischen: Ein kooperativer Kommentar (Akademie-​Verlag 2003) 21–​2; Carlo Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno (Il Mulino 1996) 754. 16

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Jellinek’s Allgemeine Staatslehre was written to confront the question of how individuals could make legal claims on a supposedly sovereign entity, how the state could both be a sovereign entity positing law yet be constrained by subjective right. To answer this question, he analyzed the state in terms of two juridical approaches:  associational theory [Soziallehre] and “closed corporative” theory [Staatsrechtslehre].17 With the former, Jellinek sought to understand the state in terms of legitimacy and subjective right. With the latter, command and positive law. This division seems to reproduce the neo-​ Kantian hiatus irrationalis, positive law’s facticity (sovereign power) confronts the constraints of the state as an entity that its members voluntarily associate into and can make claims on. That is, Jellinek divided the state into its factical and normative facets. A key feature of Jellinek’s positivistic state theory is his concept of the “normative power of the factual [normative Kraft des Faktischen].” This concept determines the validity of law by virtue of its prior existence, which legal subjects in turn recognize as effective and therefore valid law. Donhauser describes this concept as expressing “a kind of domestication of political power.”18 Jellinek argued that the will of the state, expressed effectively in formal legal terms, generated its own validity. He wrote “the transformation of initially pure actual power of the state into legal power always occurs by means of the additional idea that this factual power had a normative nature so that something should be as it is.”19 Schmitt, in turn, criticized Jellinek’s “normativism” precisely for its positivistic reduction of values to facticity, writing for example that the normative power of the factual expresses only “the arbitrary right of the stronger.”20 Schmitt criticized Jellinek’s state theory because it was at that time one of the most visible and recognized articulations of Weimar statutory positivism and, in doing so, he could clearly align himself against that position. Schmitt also criticized the associational component of Jellinek’s state theory and it is here that “the political” enters into the picture. In discussing the associational (Soziallehre) component, which deals with subjective  Kelly, The State of the Political 98–​9; Caldwell 35, 41–​3; Martin Loughlin, Foundations of Public Law (Cambridge University Press 2010) 192–​4, 217–​19; Hans Lindahl, “Law as Concrete Order:  Schmitt and the Problem of Collective Freedom” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 51, 53. 17

  Gerhard Donhauser, “The State under the Rule of Law? The Relationship of State and Law in the Work of Hans Kelsen and Georg Jellinek” in Ian Bryan, Peter Langford, and John McGarry (eds), The Reconstruction of the Juridico-​Political: Affinity and Divergence in Hans Kelsen and Max Weber (Routledge 2016) 129–​30. 18

  Georg Jellinek, Allgemeine Staatslehre (Verlag von O. Häring 1914) 354 (emphasis added). Citation from Donhauser 130. 19

  Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (G.L. Ulmen tr, Telos Press Publishing 2003) 73. 20

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legitimacy not the fact of domination, Jellinek built to his final definition of the state by noting basic features of the state as an association: it is not natural, but a function of human community and human artifice; it consists of voluntary relationships; it is a principled unity; it is a unity of space, time, cause, and form; and it is a teleological unity.21 Jellinek defined the state sociologically as “an associational unity of a people settled in a location, who are equipped with sovereign power [Herrschermacht].”22 The state was thus “a function of the social relations among men.”23 Meanwhile “the political” did not even find its way into Jellinek’s final definition of the state. Jellinek did mention it immediately prior to that final definition, however. There, Jellinek completely subsumed the political under the state, writing that “ ‘Political’ means ‘state’; with the concept of politics, one has already thought the concept of the state.”24 In defining it so, Jellinek dismissed the significance of the political outright. He implied that the state by definition has a de facto monopoly over the political. Schmitt thought Jellinek’s definition of the state was obviously contradicted by the real circumstances in Weimar:  movements had politicized violently and they sought to restructure the state according to their political commitments. Not only did the Weimar state not have any monopoly over the political—​but politicized movements were wrestling for control over the state. Clearly, Schmitt concluded, the political could exist entirely independent from the state. For jurists to continue to conceive of the relationship between state and political in Jellinek’s terms could theoretically blind them to the real political-​revolutionary potential of Weimar’s politicized movements. Schmitt aimed to show that the state did not hold any de facto monopoly over the political. Rather, he believed, the state must strive to become a political community, such that what was political coincided with the associational features of the state: that it was a purposeful and voluntary unity existing in a definite space and time. Schmitt’s inversion of Jellinek’s definition meant he thought that “the political” was not only independent of the state but could even end up opposed to it, a possibility inconceivable from the perspective of traditional German state theory. Reflecting on the Weimar crisis, Schmitt aimed to show that not the state but Weimar’s total movements provided their “constituents” with a principled telos or goal; the appearance of legitimacy; and a unity of space, time, cause, and form. Yet because all were subject to the state’s unitary 21

  Jellinek 174–​80.

  Ibid 180–​1.

22

 Stefan Breuer, Georg Jellinek und Max Weber:  Von der sozialen zur sociologischen Staatslehre (Nomos Verlagsgesellschaft 1999) 14. Quoted from Kelly, The State of the Political 101–​2. 23

  Jellinek 180 (my translation). The original reads “ ‘Politisch’ heißt ‘staatlich’; im Begriff des Politischen hat man bereits den Begriff des Staates gedacht.” Cf. Loughlin 194. 24

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public order, all were in an agonistic competition to defend and expand those values within a discrete territory by using the state’s legal apparatus. Schmitt thought German state theorists were by and large at a theoretical loss to explain the politicization occurring within Weimar. Because they uncritically accepted Jellinek’s definition and theoretically subsumed the political under the state, they had deprived themselves of an important explanatory tool for making sense of what was happening in Weimar, not to mention other outbreaks of civil war. For Schmitt, inverting Jellinek’s definition was a step toward overcoming the politicization and factionalism undermining the Weimar state. That Weber’s state theory was related to Jellinek’s was not lost on Schmitt.25 Immediately after inverting Jellinek’s definition, Schmitt wrote Weber’s definition of the state is guilty, like “many others of that time,” of putting the political and state in a circular relationship.26 Weber’s sociological definition, “that the state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory,”27 shares with Jellinek’s definition its focus on human community, territory, and location, and the idea of the (sociologically) legitimate use of force.28 Weber emphasized more than Jellinek that the legitimacy, and thus efficacy, of a legal order hinged on the degree to which its subjects perceived it to be legitimate.29 But both Jellinek and Weber fell back on the fact that the state has established order through its power to command law. Their definitions of the state, Schmitt argued, presupposed a stable political community. They would be valid only as long as the state was “a clear and unequivocally eminent being.”30 Since Weimar was no longer clearly, unequivocally eminent and since it was neither total nor a unity, traditional state theory was at a loss to address its crisis. The state no longer had a monopoly on the legitimate use of force or existed as a sovereign authority. Schmitt believed that modern mass democracy pushed Jellinek’s state theory beyond its limits. But ideas have their own momentum. Schmitt’s contemporaries continued to base their own concepts of the state and the  Jellinek was a member of Weber’s “Heidelberg Circle.” See Caldwell 34; Kelly, The State of the Political 93ff. 25

 Schmitt, The Concept of the Political 20.

26

  Max Weber, “Politics as a Vocation” in H. H. Gerth and C. Wright Mills (eds), From Max Weber (Oxford University Press 1959) 78. 27

 Kelly, The State of the Political 94–​5.

28

  Weber 310–​12; Max Weber, Economy and Society: An Outline of Interpretive Sociology vol 1 (Guenther Roth and Claus Wittich eds, University of California Press 1978) 33–​4; Cf. Sung Ho Kim, “Max Weber” (The Stanford Encyclopedia of Philosophy, Fall Edn, 2012) accessed January 7, 2017. 29

 Schmitt, The Concept of the Political 21–​2.

30

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political on theories that subsumed the political to the state, failing to see how internal politicization was the gravest threat to stable public order. Schmitt thought restoring the authority of the state required counteracting this tendency. Thus, as Böckenförde has argued, for Schmitt, it was not a question of the monopoly of power at all, but a question of the monopoly of the decision over what the terms of the unity are—​the coincidence of the political with the territorial domain of the state.31 b.  Meinecke’s theory of raison d’état Schmitt rarely engaged with the concept raison d’état. His limited discussion of it seems strange, given how important it is for state theory. Schmitt mentioned it briefly in Dictatorship (1921). He described how the modern state emerged from political “technology” and with it begins the doctrine of raison d’état.32 He defined raison d’état as a maxim dealing with “the assertion and extension of political power.”33 He distinguished the “technicity” or expertise of raison d’état from ratio status, which he described as an “almost mystical” concept.34 But Schmitt offered little further insight into the concept in Dictatorship. It is only in a review of Friedrich Meinecke’s Machiavellianism (1924) that Schmitt confronted the concept of raison d’état head on. Meinecke begins Machiavellianism by writing that “raison d’état is the fundamental principle of national conduct, the State’s first Law of Motion.”35 Meinecke argued that the material preservation of the state took priority over any other consideration and that the state was justified in its pursuit of that rationale by any means, just or unjust. In doing so, Meinecke reduced reason of state to consideration of power and power politics, separating these considerations from other normative ones. Meinecke had effectively positivized the state. In his review, Schmitt argued raison d’état is a vestigial concept of state theory from the sixteenth and seventeenth centuries, when the will of the state was identical to that of the absolute monarch.36 Old concepts continue to evoke their original meaning, however, even when that original meaning   Böckenförde 40, 43–​4; Cf. Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Duncker & Humboldt GmbH 2004) 22–​43. 31

  Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Michael Hoelzl and Graham Ward trs, Polity 2013) 9–​10. 32

33

 Ibid 9.

  Ibid 10, see also footnote 32 on page 238. The English translators define ratio status as raison d’état. But because Schmitt distinguishes the two concepts from one another, this definition seems incorrect. 34

 Friedrich Meinecke, Machiavellianism:  The Doctrine of Raison d’État and Its Place in Modern History (Douglas Scott tr, Westview Press 1984) 1; Cf. Loughlin 88. 35

  Carl Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles (Duncker & Humboldt 1988) 51. 36

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does not fit its new practice and context.37 The divergence between theory and practice can become misleading. In such circumstances, conceptual history and reevaluation of their meaning can reveal where theory and practice have become opposed. Schmitt argued that the concept raison d’état presupposed a ratio status, firmly distinguishing the two concepts.38 Schmitt thought that both concepts originated in the Venetian Republic’s adage vita nostri status, which connoted a definite political entity, that is its public “sphere,” its particular res publica or civitas. He wrote that, “In [that] same sphere, concepts such as representation, person (which differs profoundly from personality or even individuality), dignitas, and honor belong.” Status, Schmitt wrote, originally meant “the fundamental and comprehensive unity of a substantial, ontological, essential public order. A  public status has the inherent rationality of a being and it will, therefore, ‘in suo esse perseverare.’ ”39 Ratio status implied a specific type of existence, of political life, which was far more than mere material survival.40 Schmitt argued it indicated a status civilis, that is that an idea of public order had been normalized and concretized through positive public law. And he argued that “status itself originally meant a condition of stability,” a continuous and ongoing political identity over time.41 This formal continuity must be filled by some positive content, some particular concrete normative order. And, when normalized, that abstract status was thought to persist over time despite material changes in the constituency, territory, and amendments to the institutions and governors of the state. Schmitt argued that raison d’état, on the other hand, had come to mean technical knowledge and “Machiavellian” reasoning about the state’s  Schmitt, The Concept of the Political 42–​3; Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 2005) 38. 37

  Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’ ” 51; Cf. Carl Schmitt, “Die Wendung zum totalen Staat” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles 1923–​1939 (Duncker & Humblot 1988) 148; Carl Schmitt, Der Hüter der Verfassung (4th edn, Duncker & Humblot 1931) 75–​6. 38

  Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’ ” 51.

39

  Schmitt believes that mere material survival is meaningless, a sort of living death. Life, he believes, requires positive determination through values and belief. In his “The Age of Neutralizations and Depoliticizations,” Schmitt explicitly argues Hobbes’ justification of the state is merely existentially negative and that when a state is so construed, if it succeeds in forestalling the state of nature it does so at the cost of any positive existential meaning (there is merely the negative reason to avoid death). Carl Schmitt, “The Age of Neutralizations and Depoliticizations” (1993) 96 Telos 130, 141. If such a “negative” community does not actually factionalize and fragment, it succeeds because its constituents are themselves neutralized, thoughtless, and mechanized. Later in his career, Schmitt backpedals and argues Hobbes’ state theory does not imply total neutralization. As I discuss in the following chapter, it must instead be premised on some positive neutralizing Idea. Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122. 40

  Loughlin 187; Istvan Hont, “The Permanent Crisis of a Divided Mankind: ‘Contemporary Crisis of the Nation State’ in Historical Perspective” 42 Political Studies 166, 183–​4. 41

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interests. Interpretations, like Meinecke’s, had reduced raison d’état to a mere technical consideration about power.42 As long as that state maintained a monopoly over the political, this reduction would not generate any practical problems. But if the state were quartered by total movements, Schmitt thought, it ceased making sense to think in these instrumental terms. Such a “state” has no inherent rationality. Instead, every total movement strives to inject its own reason into the state, its own ideal of public order. Schmitt argued that because a quantitatively total state has no res publica and no civitas, its status—​insofar as it can be said to have one—​is “natural” in Hobbes’ sense. It is this absence of any rational status that leads Schmitt to deny the authenticity of the quantitatively total state. From this, it is clear that Schmitt believed that concepts like raison d’état presuppose a normal situation.43 For there to be raison d’état, there must first be a state. For there to be a state, there must be some underlying reason or purpose. Schmitt also criticized Meinecke for adhering to the (neo-​Kantian) separation of facts and values, Sein and Sollen.44 He argued that asking whether power or morality is in the state’s interests, as Meinecke does, has already framed the question wrong. Meinecke created a false opposition between the two concepts. Instead, Schmitt argued, the state bridges the two phenomena by using its power to actualize and maintain a rational normative status. The exercise of power could take the form of juridical commands and sanctions but it could also take the form of resistance to insurrectionary movements seeking to install an alternative normative order. Here, Schmitt hints that the rationale of the state is to bring about some particular idea of public order. The state exists to actualize that reason. Because the state is justified by that order, Schmitt thought an important question to ask was when the positive commands and institutions of the state must be violated for the sake of preserving its underlying ratio status. If the state’s positive expression of that status, its “cosmos,” can be turned against itself and threaten “chaos,” a decision is necessary on whether there is an existential threat and what response should be taken.45 And this response may mean violating the positive legal expression of that status to preserve

42

  Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’ ” 45, 52.

44

  Ibid 46, 48.

43

  Ibid 46–​7.

  Ibid 46; Schmitt, “Die Wendung zum totalen Staat” 148–​9; Carl Schmitt, On the Three Types of Juristic Thought ( Joseph W. Bendersky tr, Praeger Publishers 2004) 62; Cf. Jacob Taubes, To Carl Schmitt: Letters and Reflections (Columbia University Press 2013) 54; Joseph W. Bendersky, “Introduction to Carl Schmitt’s On the Three Types of Juristic Thought” in On the Three Types of Juristic Thought (Praeger Publishers 2004) 12; Carlo Galli, “Carl Schmitt’s Antiliberalism: Its Theoretical and Historical Sources and its Philosophical and Political Meaning” (1999–​2000) 21 Cardozo Law Review 1597, 1605–​7; Rüdiger Voigt, “Thomas Hobbes und Carl Schmitt: Ausgangspositionen konservativen Denkens” in Rüdiger Voigt (ed), Der Hobbes-​Kristall: Carl Schmitts Hobbes-​Interpretation in der Diskussion (Franz Steiner Verlag 2009) 16. 45

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the status itself.46 Here, for the first time, Schmitt raised Hobbes’ question “quis judicabit?,” a reformulation of his earlier work on political theology.47 Quis judicabit translates as “who decides,” who decides what that ratio status means concretely, whether its concrete existence is in jeopardy, and what acts are necessary to perpetuate that existence. Schmitt argued that facts and norms are bound together.48 Norms are empty unless they are actual and the fact of order is meaningless unless it at least approximates some normative idea of order. Schmitt concluded that ratio status is a more fundamental concept of state theory than raison d’état discussed by twentieth-​century German state theory. Besides setting up his own state theory, Schmitt’s 1926 critique of Meinecke anticipates his work on the political, which he first wrote about in 1927. Just as raison d’état was grounded on some concrete ratio status, so too was the state grounded on the political. And if the state itself is “devoured” by a plurality of total movements, if it has lost its monopoly of the political, then its “raison” becomes directionless. Schmitt believed the tendency in German state theory had been to presume there was a civil status and focus on practical questions related to the state’s exercise of power. But the factionalization occurring within Weimar demonstrated that a civil status could not simply be assumed. States did not simply obtain a monopoly over the political by definition. It was something they needed to work to obtain, and to hold onto.

2.  the political: enmity, friendship, relativizing status Schmitt’s criticism of Jellinek and Meinecke sheds light on how he understood the relationship between state and the political. German state theory, he thought, had not recognized the autonomy of the political and its potential to destabilize the state. In articulating its autonomy, Schmitt defined the nature of “the political” famously in terms of the Friend-​Enemy distinction.49 Over an issue that is political, one confronts others either as Friends or as Enemies. This definition has been controversial. And it does have disturbing implications. Of particular concern is Schmitt’s apparent valorization of enmity and homogeneity and its violent and exclusionary consequences. And   Schmitt’s distinction here seems to draw on Aristotle’s argument about equity and correcting the deficiencies of the law from the Nicomachean Ethics. Aristotle, Nicomachean Ethics (Terence Irwin tr, Hackett Publishing Company 1985) 1137b. See the discussion in Chapter 5 of Dictatorship, particularly the relationship between Rechstnormen and Rechtsverwirklichungsnormen. 46

  Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’ ” 51.

47 49

 Schmitt, The Concept of the Political 26.

48

  Ibid 50–​1.

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to be sure, Schmitt did treat enmity as an existential virtue at times. While acknowledging its normative usage is disturbing, this section focuses on the analytic value of Schmitt’s concept. The moral disagreeability and undesirability of phenomena like politicization and enmity did not mean that violent antagonisms have not and would not continue to occur in the terms Schmitt describes.50 His concept offers a way to identify and understand the formation of antagonistic groups and their meaning for the state. And he sought to apply this concept to understand how to overcome the violent antagonisms plaguing the Weimar state. Considered in this light, Schmitt’s concept is not a celebration of violence and enmity. It is his observation of what occurs in the absence of shared political identity. Schmitt used “the political” and related concepts in an extremely narrow sense. It is easy to lose sight of this narrower meaning in light of its broad ordinary meaning. But to do so would alter Schmitt’s message. Taken descriptively, the political defines relations antagonistic enough to lead to violence and warfare. It defines those commitments one is willing to die to realize or maintain. It defines commitments one is willing to kill for. In a well-​ordered state, the overwhelming majority of what occurs for example in parliament, in the public sphere, and on campus is not political in Schmitt’s sense of the concept. Heated disagreements about policy and values are not political until they generate existential insecurity for those involved. With this concept, Schmitt aimed to identify and distinguish what made the antagonisms within Weimar’s parliament and society different from “normal” disagreements among political parties. Some of Weimar’s largest political parties were the faces in parliament of total movements that had their own private armies and that held mutually exclusive worldviews aiming at total domination through whatever means available, from legal revolution to street battles. “The political” was intended to capture the gravity of this situation. Schmitt’s charged language reflected how serious he thought the situation in Weimar was. Although it receives most of attention from interpreters today, Enmity is not the only facet of Schmitt’s concept of the political. The political also deals with Friendship and determining a ratio status. This section reinterprets the political in light of the above to better understand how Schmitt saw the threat politicization poses to the state and stable public order as well as what he believes the proper relationship between the state and the political should be. a.  Enmity: the political as “negated otherness” Even if it is not the end of the political, enmity is certainly the beginning. Schmitt analyzed the political first as “negated otherness.”51 Kervegan and 50

 Hofmann 108.

 Schmitt, The Concept of the Political 63.

51

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Derrida describe how Schmitt developed the political through a reading of Hegel.52 Hegel analyzed the development of self-​consciousness through negation: to understand what one is, one must understand first what one is not.53 Schmitt transposed Hegel’s analysis from the individual to public order. What is negated is no longer individual identity but public order and political identity. Enmity existed for Schmitt only in the public realm. It expresses the consequence of when rival conceptions of public order compete to be realized in the same territory or space. An Enemy is strictly a public being, derivative of that other conception of order, and strictly an object of public hatred and opposition.54 Indeed, Schmitt suggested that Enemies might even be privately amicable and that similarly public Friends might privately despise one another. One way Schmitt illustrated enmity was with the identity of the proletariat.55 Drawing on Marx, Schmitt argued that the proletariat has no positive identity. One cannot say exactly what it is. But it is possible to say what it is not:  the proletariat is the antithesis of the bourgeoisie. By theorizing what the bourgeoisie was, constructing a positive point to negate, it would be possible to reveal what the proletariat was. The proletariat was the political antithesis of the bourgeoisie because the basic commitments of the bourgeois public order—​individual rights, deliberative democracy, private property—​threatened the political existence of the proletariat. But public enmity did not mean individual proletariats could not relate to individual bourgeoisie. They may share other facets of their identity and normative concerns, like for example ethnicity or gender, that would otherwise lead them to identify and sympathize with one another. Yet, insofar as their ideals of public order are constituted by economic identity, the proletariat and bourgeoisie would find no basis for political Friendship. Schmitt’s understanding of political identity may seem tautological at first: a political unity determines its identity through its “enemy”—​but an enemy is such only because its identity is the antithesis of another identity. But Derrida argued that relations of friendship and enmity were not static. They are constantly in a process of renegotiation and redetermination.56 And what becomes apparent when this dialectic is illustrated is that it is more

 Jean-​François Kervegan, “Politik und Vernünftigkeit Anmerkungen zum Verhältnis zwischen Carl Schmitt und Hegel” in Helmut Quaritsch (ed), Complexio Oppositorum:  Über Carl Schmitt (Duncker & Humblot 1988) 387; Jacques Derrida, The Politics of Friendship (George Collins tr, Verso 1997) 139, 152ff. 52

  Kervegan 388–​91.

53

  George Schwab, “Enemy or Foe: A Conflict of Modern Politics” (1987) 72 Telos 194, 194–​5, 199n23.

54

  Carl Schmitt, The Crisis of Parliamentary Democracy (Ellen Kennedy tr, The MIT Press 1988) 60–​4.

55

  Derrida 86ff. Derrida seems to provide a solution to his own confusion about whether Friendship or Enmity comes first with this recognition. Ibid 100ff, 116. 56

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refining than defining.57 For example, although Catholics and Protestants originated from the same point in the sixteenth century, both denominations came to recognize differences in their respective dogmas on which neither could compromise nor tolerate disagreement. What had begun over seemingly minor differences turned out to be polarizing value commitments. And these commitments were antagonizing enough for adherents of both denominations to kill and risk being killed to realize their commitments in the world. Economic class is also illustrative of the refining dialectic of public identity. Property rights were important in the bourgeoisie’s struggle against the nobility and feudal privilege. But once introduced, bourgeois property rights would go on to become contentious for what it denied to the proletariat. Political identity emerges dynamically. Because the political deals with the subjective bases of meaningful public life, Schmitt also characterized it as existential.58 Political values are existential because, from the perspective of those committed to them, to be deprived of them would render life not worth living.59 Should an Enemy threaten those commitments, violence and war appear to be the only conceivable response.60 For Schmitt, recognizing the phenomenon of Enmity aided understanding the Weimar crisis. Appearances aside, the friction among Weimar’s parties and movements was not something occurring within the framework of constitutional democracy. It was not a disagreement parliamentary “politics” would be able to resolve. Weimar’s extremist movements, the communists and the Nazis, were its Enemies: they held rival conceptions of public order, had organized private militaries, and were willing to resort to violence in their efforts to overthrow its liberal democratic order. Citing Plato, Schmitt described factionalism as the presence of Enemies within what should be a unified public order, upsetting its stasis, its stability.61 Schmitt then argued that the study of political parties should be called “stasiology” because of their dynamic and destabilizing effect on public order. Its study mattered for Weimar because many of its defenders were unable to reconcile its value-​ neutral, ostensibly depoliticized nature with the presence of parties and movements that conceived of themselves as its Enemies and were committed to revolutionizing it. Schmitt thought that statutory positivists’ pursuit of depoliticization was not only quixotic, it was suicidal. They were unable to recognize that 57

  Carl Schmitt, Ex Captivitate Salus: Erfahrungen der Zeit 1945/​47 (Duncker & Humblot 2010) 88–​91.

58

 Schmitt, The Concept of the Political 27, 49; Norris 78.

60

 Norris 81.

 Schmitt, The Concept of the Political 65.

59

 Schmitt, The Concept of the Political 28–​9; Schmitt, Der Begriff des Politischen:  Text von 1932 mit einem Vorwort und drei Corollarien 118–​19; Carl Schmitt, Political Theology II (Polity 2008) 121–​3. 61

 83

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Weimar’s extremists were Enemies of its liberal democratic order, let alone mount a credible defense against them. Liberal democracy was not a universally compatible, neutral public order. It contained a distinctive political-​ existential identity. The Enmity that Weimar’s liberal democracy aroused in other political movements was evidence of this fact for Schmitt. And Weimar’s liberal democrats’ ongoing struggle to recognize the depth of the threat extremists posed as their Enemies was evidence of the danger in that belief. Although Schmitt wrote that “the ever present possibility of war” is a part of the political, he did not advocate the pursuit of war.62 This claim is descriptive: war is an ever present possibility because people form existential commitments. Groups organized around opposed public orders may violently conflict with one another as they seek to realize or perpetuate their commitments. His concept of Enmity identified the consequence of politically organized groups competing with one another to realize their commitments within the same territorial space. b.  Friendship: the political as positive association But Enmity is not the last word in the political. It does not fully explain why a group coheres. Like in Hegel, negation is only the starting point of determinacy and it moves dialectically toward the affirmation of some positive quality. Indeed, the political makes little sense if those constituting and organizing a public order do not agree on any shared commitments. Friendship is sometimes overlooked in interpretations of Schmitt’s concept of the political and some critics have argued that the political is just a celebration of Enmity and violence.63 But many have emphasized the importance of Friendship to the political. Leo Strauss argued that, for Schmitt, “all political behavior is oriented toward [acquiring] friends and enemies” (Strauss’ emphasis).64 Hofmann argues that to base a state’s order on shared Enmity cannot provide lasting stability over time.65 Derrida and Galli argued that Schmitt’s concept of Enmity cannot be made sense of independently from Friendship.66 Norris has recently written that “it would be a mistake to think that what Schmitt means by an enemy can be grasped without  Schmitt, The Concept of the Political 33–​4.

62

  Cf. Wolin 433–​5, 443–​4; Habermas 137ff; Cf. Scheuerman 32–​3; Müller 8, 20; McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology 283; McCormick, “Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” 626. 63

  Leo Strauss, “Notes on The Concept of the Political” in The Concept of the Political (The University of Chicago Press 1996) 103–​4, 106. 64

  Hofmann 136–​7.

65

  Derrida 86ff; Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno 750.

66

84

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understanding what he means by a friend.”67 Slomp argues that it was “all-​ important” for Schmitt that thinkers recognize “the political does not contain only enmity but it must contain also friendship.”68 This section analyzes the role Friendship played in Schmitt’s thought, arguing it is as important for understanding the political as Enmity. Schmitt was not the first to discuss “the political” in terms of Friendship and Enmity. While it differs in some core features, it also has important affinities with both Plato’s and Aristotle’s accounts.69 Plato discussed friendship and enmity in terms of when a state is or is not “one” with itself.70 He described how the complete guardian, the soul of his republic, can rightly identify its friends from its enemies and, aided by auxiliary guardians, he will defend the city against those enemies.71 Aristotle argued friends share the same fundamental identity and end (telos).72 Political community is the product of friends deliberately choosing to associate in order to realize those values.73 Aristotle argued that rulers will make political decisions the ruled recognize as consistent with their own interests because all share the same end.74 Like Plato, Aristotle believed friendship is the greatest (political) good:  it guarantees communal harmony and its absence leads to factionalism.75 Aristotle argued the supreme authorities must be “friends” of the constitution and the community and be able to distinguish friends from enemies.76 Political friendship for the Greeks defined a condition of solidarity and altruism due to shared fundamental commitments.77 Schmitt also understood political Friends as individuals who share the same commitments and associate to realize those values publicly.78 And Schmitt argued that a state’s stability presupposes this political solidarity.79 67

  Norris 72, 79–​80.

 Slomp 9.

68

  Christian Meier draws attention to the similarities between Schmitt and Aeschylus on the political. Christian Meier, The Greek Discovery of Politics (David McLintock tr, Harvard University Press 1990) 123, Cf. 4, 15–​17. Although it is unlikely Aeschylus was a main source, that Schmitt’s account of the political has such deep parallels to Greek thought is suggestive of the degree to which he was inspired by their communitarianism. 69

 Plato, Republic (Allan Bloom tr, University of Chicago Press 1968) 351ff; Cf. ibid 462d–​463a; Cf. Plato, Laws (Thomas L. Pangle tr, University of Chicago Press 1988) 693b, 701s, 743c, 744de, 862c, 880de. In each of these passages, Plato insists on the city “being a friend to itself.” 70

71

 Plato, Republic 375e–​376e; Cf. Plato, Laws 760bff.

72

 Aristotle, The Politics (C. D. C. Reeve tr, Hackett Publishing Company 1998) 1167b2–​3, 1287b33.

73

 Aristotle, Nicomachean Ethics 1156b20, 1159b3, 1280b38.

 Aristotle, The Politics 1287b33. Schmitt uses this definition for his ideal-​type of democracy. Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 249, 259; Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 7–​8. 74

 Aristotle, The Politics 1262b7.

75

 Ibid 1309a.

76

  Cf. Loughlin 150.

77

 Schmitt, The Concept of the Political 37; Cf. Aristotle, Nicomachean Ethics 1164a12.

78

  Böckenförde 39; Norris 71, 78.

79

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85

In his polemics against total movements, Schmitt argued like Aristotle that the political community is prior to all other associations—​non-​political (i.e. social) associations may make legitimate claims on individuals, but they are subordinate to the political ends of the community.80 Yet Schmitt departed from Plato and Aristotle in important ways. Schmitt argued the “high point” of the political is the ability to distinguish friends and enemies in concrete clarity.81 The basis for friendship, for Schmitt, can be anything sufficient to generate an intense feeling of association—​it need not be “the good” or virtue. Unlike the Greeks, Schmitt seemed mostly uninterested in articulating which public order is right. His aim instead seemed to be to understand what makes a community or public order stable and endure over time, regardless of whether it was substantively legitimate or not. He analyzed the formal qualities of political Friendship rather than evaluating which of the various possible commitments should be the basis of political community. In other words, Schmitt’s interests were sociological rather than normative.82 The content of the political according to Schmitt is indeterminate.83 It could be applied to many different public orders. Kervegan writes that, distinct from Hegel, Schmitt did not recognize any objective reason in history. There was no single “correct” “rational” commitment but instead a plurality of commitments to various gods.84 The role Friendship plays in Schmitt’s thought can be further clarified by one of his recurring criticisms of Weimar’s parliamentary democracy. He defined a negative majority as a majority in the legislative body that exists solely to impede legislation or government.85 The members of this majority share no positive goals. They are only interested in opposing the government and the state. In Weimar, although the Nazis and Communists were diametrically opposed to one another over their political aims, they nevertheless managed to coordinate and prevent Weimar’s republican parties from governing in the 1930s. Although their shared Enmity for Weimar permitted temporary cooperation against it, that Enmity could never generate any political order. The type of cooperation that Enmity generates is only destructive. Similarly,  Schmitt, The Concept of the Political 47–​ 8.   81 Ibid 67.

80

  Carl Schmitt, Gespräch über die Macht und den Zugang zum Machthaber (Klett-​Cotta 2012) 46.

82

  Cf. Ingeborg Maus, “The 1933 ‘Break’ in Carl Schmitt’s Theory” (1997) 10 The Canadian Journal of Law and Jurisprudence 125, 126; Claus Heimes, Politik und Transzendenz: Ordnungsdenken bei Carl Schmitt und Eric Voegelin (Duncker & Humblot 2009) 47; Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik (Duncker & Humblot 1999) 58. 83

  Kervegan 388–​91.

84

  Carl Schmitt, “Reichstagsauflösungen” in Carl Schmitt (ed), Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 Materialien zu einer Verfassungslehre (Duncker & Humblot 1958); Schmitt, Constitutional Theory 364; Schmitt, Der Hüter der Verfassung 115–​21. 85

86

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as the next chapter discusses, Schmitt argued a purely procedural but politically contentless state, a “mechanical” state, cannot generate any lasting public order because its subjects have no common orientation or purpose.86 Its subjects share only subjection to its public order. And when tensions arise as groups struggle to gain control of the state, as happened in Weimar, this sort of state will only accelerate this process of internal politicization. To summarize, Schmitt suggested that in the absence of Friendship, a definitive political status, there cannot be any enduring peace, movements opportunistically will betray one another as soon as it is advantageous. Schmitt defined the political as “the authoritative [maßgebende] human grouping.”87 Political identity “pushes aside” and depoliticizes other non-​ political identities, enabling peaceful coexistence. Although there will always be social (non-​political) disagreement and difference among individuals, Schmitt argued shared political identity will “neutralize” social conflicts by preventing them from escalating to the point of violent conflict. “Friends” will see their disagreements as just that, disagreements. The character of these disagreements will not lead to attempts to violently impose one identity over the other because a higher shared identity trumps them. Schmitt’s argument can again be illustrated through the political opposition between proletariat and bourgeoisie. Once economics has politicized, he believed that other identities would be trumped and depoliticized by class identity. Social disputes over, for example, ethnicity might still occur within a proletariat political community. But Schmitt thought these differences will remain civil as long as they share that common political commitment. The opposite face of neutralization is politicization. Although Enemies may share much, Schmitt believed the opposition of their political identities means those similarities will not become a basis for peace.88 For example, if economic identity has politicized, other commonalities will not be sufficient to diffuse tensions. Moreover, politicized identity can extend Friendship beyond national borders. Schmitt confronted this situation in Weimar:  the KPD (Kommunistische Partei Deutschlands—​the Communist Party) was just an extension of the Comintern in Moscow. And as he analyzed the international character of politicized economic identity, he doubtlessly had in mind Hobbes’ concerns about indirect power and the politicization of religious identity as the Catholic Church interfered within states borders in the seventeenth century. Both illustrated the threat to the “direct” power of the state posed by “indirect” powers, how those indirect powers risked a return to the state of nature. 86

 Schmitt, Constitutional Theory 59–​60. See the discussion in Chapter 3.

 Schmitt, The Concept of the Political 38; Cf. Martin Loughlin, “Politonomy” in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2015) 5. 87

  Schwab 194–​5, 199.

88

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87

c.  Relativizing status: the political as the ends of community Kervegan argues that, according to Schmitt, German state theory had taken the relationship between state and the political for granted because, since the end of the Confessional Civil Wars, the state had been so successful in maintaining its monopoly over the political.89 But that monopoly was slipping from the state’s grasp. As identities politicized and freed themselves from the state’s control, domestic relations shifted toward a state of civil war.90 As Weimar society politicized, Schmitt recognized that common existential commitments, and not directly the state at all, were what relativized internal antagonisms.91 Internal politicization in the absence of a common political commitment or status was the cause of civil war and the greatest threat to be addressed. Schmitt’s concept of the political is a theory of civil war. Interpreters of Schmitt, such as Scheuerman, Preuss, and Dyzenhaus, have raised concerns about what the political means for domestic politics because the Friend-​Enemy distinction suggests potential violence.92 More recently, Vinx has argued that Schmitt advocated a “prior violent repression and exclusion of all ethical and cultural diversity.”93 These thinkers worry Schmitt advocated the violent exclusion of political difference in at least two ways. First, they are alarmed that Schmitt’s concept was normative. Schmitt thought violent exclusion should be the goal of human community. Second, political homogeneity is deeply immoral. In particular, the exclusion of difference is inconsistent with the values of liberal democracy. Schmitt’s deplorable behavior after 1933 seemed to confirm their interpretation:  Schmitt adopted the political goals of Nazi Germany and, as Scheuerman puts it, “enthusiastically endorsed the Nazi quest to guarantee ethnic and racial homogeneity within Germany.”94 These concerns must be taken seriously. Schmitt’s usage of the political did slip into the normative sense interpreters are concerned about. Yet Kalyvas  Kervegan 384.

89

 Derrida 120.

90

 Schmitt, The Concept of the Political 30.

91

  William E. Scheuerman, Carl Schmitt:  The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 127, 280; David Dyzenhaus, Legality and Legitimacy:  Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford University Press 1997) 101; Ulrich K. Preuss, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution” in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press 1994) 153–​5; Richard Wolin, “Carl Schmitt, Political Existentialism, and the Total State” (1990) 19 Theory and Society 389, 390ff; Wolin, “Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror” 425ff; William E. Scheuerman, “The Fascism of Carl Schmitt: A Reply to George Schwab” (1993) 29 German Politics and Society 104, 106ff; William E. Scheuerman, “Carl Schmitt and the Nazis (Book Review)” (1991) 23 German Politics and Society 71, 74–​5. 92

  Lars Vinx, “Carl Schmitt’s Defense of Sovereignty” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 114, 119. 93

 Scheuerman, Carl Schmitt: The End of Law 127; Cf. Carl Schmitt, Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit von Staatsrat (Hanseatische Verlagsanstalt 1935). 94

8

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The Concept of the Political

rightly argues that by focusing so intently on Schmitt’s glorification of substance, homogeneity, and identity, political and legal theorists today lose sight of the utility of the political.95 Although Schmitt did employ the political in a völkish way during the Nazi regime, Hofmann argues there is nothing inherently völkish about it.96 The problematic normative sense of the political can be separated conceptually from its descriptive, analytic sense. Moreover, as Lepsius argues, it should be borne in mind that discussing “the people” in terms of “homogeneity” was normal in Weimar public law and that even recognized democrats like Kelsen did so.97 “Homogeneity” then was an answer to the question of what constituted the ontological or “positive” substance of a community.98 “The political” adds a concept to our vocabulary that identifies when domestic relations among movements threaten to undermine public order itself, because the fundamental commitments of those movements become the basis for violent exclusion. To illustrate this phenomenon, Schmitt described different historical cases of unanticipated politicizations and their violent outcomes.99 Politicized religious identity caused the Thirty Years’ War, politicized ethnic identity led to the expulsions from Greece and Turkey, and politicized economic identity caused the communist revolts and insurrections in the early twentieth century. Framed this way, Derrida’s argument that Schmitt sought to “exclude from all other purity (objective, scientific, moral, juridical . . .) the purity of the political”100 does not make sense. The political is anything but pure. Schmitt argued that anything could become political.101 The Confessional Civil Wars demonstrated just how far-​ reaching politicization could be:  “heretical” interpretations over for example the transubstantiation were a contributing factor to violence. The political, in Schmitt’s descriptive sense, acts heuristically to identify when a particular commitment to public order has become potentially violent. It presupposes content from other value-​spheres. This descriptive understanding of the political is cautionary. Conceived in this sense, Schmitt attacked the statutory positivists’ belief that law and the

95   Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge University Press 2008) 155; Cf. Loughlin, “Politonomy” 4.

  Hofmann 106, 147.

96

  Oliver Lepsius, “Staatstheorie und Demokratiebegriff in der Weimarer Republik” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 408–​9. See Hans Kelsen, Allgemeine Staatslehre, (1925), 324 and Hans Kelsen, Vom Wesen und Wert der Demokratie, (1929), 65f. 97

  Hofmann 137–​8.

98

 Schmitt, Constitutional Theory 259–​63; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122–​3. 99

 Derrida 116.

100

 Schmitt, The Concept of the Political 37.

101

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state could be depoliticized. Faith in depoliticization was tied to the design of the state as a value-​neutral institution. But, Schmitt argued, a purely procedural account of law only blinds itself to the fact that positive law can and will be used for political-​exclusionary purposes by those politicized factions. A public order that conceives of itself as value-​neutral or apolitical creates a space it has no political control over. But the statutory positivists had not purified and could not actually purify law in the way they intended.102 They had only moved politicization outside their conceptual system. In a sense, Schmitt inverted the arguments of the statutory positivists. Public law could be formally depoliticized, in his narrow sense of the political—​but this allows law to become an instrument of any politicized purpose. Purifying the law of politics does not actually depolicitize the law, it just stifles recognition of law’s political nature. Following his inversion of Jellinek’s definition, Schmitt argued the historical link between “state” and “political” is valuable for understanding what the state’s role or purpose ought to be. He wrote, in its linguistic and historical sense, “state” is a particular type of condition of a people, and that, in decisive cases, it is the authoritative condition and thus, opposed to the many conceivable individual and collective statuses, the status par excellence.103

Schmitt thought that, historically, “state” described the overarching status or condition [Zustand] that united a people. He writes it was the authoritative status [maßgebende Zustand]; the status par excellence [der Status schlechthin]. He also argued that the word state derived from the concept status.104 Authoritative status implies that politicized status prevented other forms of identity from becoming publicly violent and escalating into civil war-​ like condition. Huber adds that, for Schmitt, “status” denoted a basic and comprehensive entity of a substantially, ontologically, and essentially public order.105 Böckenförde offers further insight into Schmitt’s thought by arguing that the political, as a relativizing status, keeps “all domestic distinctions,  Hofmann 108.

102

 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 20–​1. Translation altered. Cf. Schmitt, The Concept of the Political 19–​20. 103

 Schmitt, Constitutional Theory 100; Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’ ” 51 Cf. NRW-​12605 20383. For a discussion of the relationship of “state” and “status,” see Quentin Skinner, “The State” in Terence Ball, James Farr, and Russell L. Hanson (eds), Political Innovation and Conceptual Change (Cambridge University Press 1989); H. C. Dowdall, “The Word ‘State’” (1923) 39 Law Quarterly Review 98; L. G. Baxter, “‘The State’ and Other Basic Terms of Public Law” (1982) 99 South African Law Journal 212; Harvey C. Mansfield, “On the Impersonality of the Modern State: A Comment on Machiavelli’s Use of Stato” (1983) 77 The American Political Science Review 849; Loughlin, Foundations of Public Law 186–​90. 104

  Ernst Rudolf Huber, “‘Positionen und Begriffe’: Eine Auseinandersetzung mit Carl Schmitt” (1941) 101 Zeitschrift für die gesamte Staatswissenschaft 1, 5. 105

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antagonisms, and conflicts below the level of friend-​enemy-​g roupings.”106 The political relativizes or neutralizes the violent antagonisms among other forms of identity. Without neutralization, he thinks civil society would not be possible.107 Whatever the content of that relativizing status is, it must be politically homogeneous. It is worth reemphasizing the narrow sense in which Schmitt uses the political. Schmitt thinks groups or states cannot relax this authoritative status without laying the grounds for internal politicization. The failure to maintain an authoritative status, both theoretically and practically, was the root of the Weimar crisis. Without a definite authoritative status, social statuses politicized to fill that void. Conversely, Schmitt thought political homogeneity would enable stable social heterogeneity. How political homogeneity, a single authoritative status imposed as public order across one geographical space, can be reconciled with liberal democratic values is taken up in Chapter 6. Schmitt did think Weimar could survive as a politically liberal state.

3.  status, sovereign authority, and representation The political status is decisive, Schmitt argued, in determining with whom a community’s relations will be peaceful or belligerent.108 The political is linked to the concept of sovereignty. The sovereign, he wrote, decides on questions such as what the basis of political unity is, who its enemies are, whether there exists some sort of immediate existential threat to that order or not, and when ordinary positive law ceases to be a normalizing force but instead becomes a source of instability breaking down normal order. Schmitt’s sovereign has been interpreted to be the person with the power or authority to make political decisions ex nihilo. There is a tendency to interpret Schmitt’s aim as defending the unlimited discretionary power of the sovereign representative to decide and will however it desires. For example, Löwith’s characterization of Schmitt as an occasionalist is premised in part on the decision as an arbitrary and unprincipled act of will.109 Scheuerman and Dyzenhaus both argue Schmitt intended to produce a moment of pure sovereign discretion and that ultimately this moment is informed by nothing more than the exercise of power.110 Boucher and Lindahl argue that Schmitt derives ought from is  Böckenförde 39.

106

  Hofmann 119–​20.

107

 Schmitt, The Concept of the Political 38–​9.

108

  Karl Löwith, “Max Weber und Carl Schmitt” (2007) 2 Zeitschrift für Kulturphilosophie 365, 373.

109

 Scheuerman, Carl Schmitt: The End of Law 27, 68; Cf. 19, 33–​5, 116–​18; David Dyzenhaus, “Hermann Heller:  An Introduction” 18 Cardozo Law Review 1129, 1134–​5; Cf.Müller 23; Robert Howse, “From Legitimacy to Dictatorship—​and Back Again. Leo Strauss’s Critique of the Anti-​Liberalism of Carl 110

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and reduces values to a matter of fact and will and legitimacy to power.111 Others, like Habermas and McCormick, go further and argue this moment is an aestheticization of violence or conflict.112 McCormick has argued Schmitt’s decisionism anticipates Critical Legal Studies.113 These interpretations share a depiction of Schmitt as a juridical thinker intent on reducing law to pure will. Reading into these interpretations, Schmitt can come across as a nihilist. He denies that norms can or should restrain that sovereign will at all. But this interpretation of Schmitt has been challenged. Hofmann argues that a decision is not made ex nihilo but is the product of an inner rationality.114 That inner rationality is informed by the self-​determination of a political community and its “order-​g iving” idea.115 Kalyvas has argued that “one has to go beyond personal empirical will” in order to understand sovereign authority.116 Kalyvas argues that neither the political nor sovereign authority in Schmitt are normatively vacuous—​they are instead the attempt to ground a concrete normative order in the world. Indeed, depicting the foundation of a political order as an act of nihilism overlooks Schmitt’s explicit goals: to overcome humans’ “natural” state by creating a normalized “civil” state.117 Moreover it is unclear how absolute discretionary power would solve the problems of political instability motivating Schmitt’s project. Weimar’s problems were due to tensions among its movements over public order. A concrete sovereign authority with absolute discretion might be able to impose his or her own commitments on the subjects using the force of positive law. But Schmitt diagnosed the problem of instability and politicization as a lack of Friendship, that is recognition of a common commitment to some status. The unilateral imposition of an order would only seem to reproduce that legitimation deficit. A different reading of Schmitt’s concept of sovereign authority and its relationship to the political offers a way to make sense of the tension between his apparent endorsement of sovereign decisionism and his concerns about Schmitt” in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 59; Bhuta 26; Hauke Brunkhorst, “The Right to War:  Hegemonial Geopolitics or Civic Constitutionalism?” 11 Constellations 512, 514–​15, 516.   Lindahl 59; David Boucher, “Schmitt, Oakeschott and the Hobbesian Legacy in the Crisis of Our Times” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 137. 111

 McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology 283; McCormick, “Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” 626; Habermas 137ff; Wolin, “Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror” 433–​5, 443–​4; John P. McCormick, “Schmittian Positions on Law and Politics? CLS and Derrida” (1999–​2000) 21 Cardozo Law Review 1693, 1703. 112

  McCormick, “Schmittian Positions on Law and Politics? CLS and Derrida.”

113

 Hofmann 179ff.

114

  Ibid 134, 151, 251–​2.

115

  Kalyvas 91, 93.

116

  Cf. ibid 83, 93ff.

117

92

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The Concept of the Political

instability due to diverging political commitments. We have already seen how Schmitt defined the political as the authoritative status. Schmitt also curiously argued that “the political grouping or entity” itself is sovereign.118 Hofmann and Galli both argue that Schmitt’s sovereign authority represents the commitments, or the Idea, underlying a public order.119 This suggests a distinction between the sovereign and the sovereign representative, between an idea and its authorized representation. Yet this reading raises a different problem:  a political status or idea cannot decide by itself. It lacks agency. How then could a status or idea be sovereign? Schmitt himself leveled this objection against abstract “normativism.” He chastised the idea of “the rule of law” because, without human actors interpreting and applying the law, it is nothing but words.120 There is a tension in Schmitt’s work. What he established with one hand (the primacy or authority of the political status), he took away with another (that no concept can immediately affect the world). This section develops this alternative reading of sovereignty and addresses the dilemma above by analyzing Schmitt’s theories of representation and authority. a.  Representing the political: status and office charisma Schmitt’s theory of sovereign authority has been interpreted as a development of Weber’s theory of charismatic legitimacy. For example, Dyzenhaus argues that Schmitt developed his theory through Weber’s charismatic legitimacy in order to oppose the rational-​legal legitimacy of the Rechtsstaat.121 Yet as discussed in Chapter 1, Schmitt did not reject rational-​legal legitimacy outright—​only its disenchanted form. More importantly, although Schmitt did adopt Weber’s theory of charismatic legitimacy as his model for authority and representation, it is not the version interpreters like Dyzenhaus assume it is. Weber actually identified two distinct types of charismatic legitimacy: one revolutionary, one conservative. The first form was charismatic because it emanated from an individual’s personal charm and his or her ability to inspire others’ convictions. This type of authority was naturally revolutionary.122 Yet, with the death of the charismatic leader, Weber argued  Schmitt, The Concept of the Political 38–​9.

118

  Hofmann 151; Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno 792.

119

 Schmitt, Constitutional Theory 138–​ 9; Cf. Loughlin, Foundations of Public Law 240; Loughlin, “Politonomy” 5. 120

 Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar 14–​15; David Dyzenhaus, “The Concept of the Rule-​of-​Law State in Schmitt’s Verfassungslehre” in Oliver Simons and Jens Meierhenrich (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2014) 14. 121

  Max Weber, Economy and Society: An Outline of Interpretive Sociology vol 2 (Guenther Roth and Claus Wittich eds, University of California Press 1978) 1111ff. 122

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the order he or she had established quickly “congealed” into traditional or rational-​legal legitimacy. This first model of charismatic legitimacy seems difficult to reconcile with Schmitt’s conservative political goals. Moreover, the papacy, Schmitt’s go-​to model for political authority, hardly corresponds to Weber’s model of revolutionary charisma. The Pope represents and bears a 2,000-​year-​old institution.123 Weber himself did not subsume the Church under his ideal-​type of personal charismatic legitimacy. Instead, he argued that Papal legitimacy was from the charismatic qualities of the office, rather than the personal charisma of the man.124 Insofar as the problem to be solved was a broken form of rational-​legal legitimacy, a revolutionary type of charismatic legitimacy would only provide a fleeting solution before congealing back into the original problem. Instead, as Galli argues, Schmitt modeled sovereign authority on Weber’s second, conservative type of charismatic legitimacy:  “office charisma.”125 This form of charismatic authority is stable and does not “congeal” into another form. Weber argued that charisma derives from the institutions itself, legitimated by the underlying commitments that founded them in the first place. He wrote, illustrating office charisma with the Catholic Church, the decisive fact is the separation of Charisma from the person and its linkage with the institution and, particularly, with the office; from this fact derive all the above features, which we find developed in different degrees of typicality . . . the church is the bearer and trustee of an office charisma, not a community of personally charismatic individuals.126

With office charisma, the affective qualities that are normally properties of a natural person are exhibited instead by an institution. Whatever personal qualities someone possesses (or lacks) are secondary to the affective charismatic power of the institution itself.127 When Schmitt used the Papacy to illustrate political authority, he had office charisma in mind. The following passage, for example, maps onto the above-​quoted passage from Weber: “the Pope is not the Prophet but the Vicar of Christ. . . The fact that the office is made independent of charisma signifies that the priest upholds a position which appears to be completely apart  Loughlin, Foundations of Public Law 35.

123

  Cf. ibid 20–​1; Chris Thornhill, “Natural Law, State Formation, and the Foundations of Social Theory” (2013) 13 Journal of Classical Sociology 197, 203–​5. 124

 Galli, La Genealogia della Politica:  Carl Schmitt e la crisi del pensiero politico moderno 258; Cf. Weber, Economy and Society: An Outline of Interpretive Sociology 1163–​7. John McCormick seems to suggest something similar to Galli. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology 163. 125

 Weber, Economy and Society: An Outline of Interpretive Sociology 1164.

126

 Loughlin, Foundations of Public Law 73; Loughlin, “Politonomy” 7.

127

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from his concrete personality.”128 Like Weber, Schmitt argued that whatever charismatic authority a Pope has is derivative of the office of the papacy, itself a concrete representation of the Idea of Jesus Christ. As Jesus’ highest representative in the world, the Pope partakes of the dignity of the idea of Jesus as long as he remains bound to the office’s regulative idea of Christian order.129 This form of charismatic legitimacy is not revolutionary. This does not mean it permits no exceptions to its positive laws. But neither is it substantively irrational. Positive legality is rooted in higher natural law. As an exemplar of office charisma, Schmitt thought the Papacy offers a model for state authority that could be stable and rational but not limited by the problems of statutory positivism. In this light, Mehring’s argument that Schmitt’s use of the Catholic Church to illustrate authority and representation is not intended to be crypto-​Catholic or mystical is extremely convincing.130 Waldemar Gurian, Greenberg writes, was upset by Schmitt’s “ignorant embrace of secular and earthly institutions like the state,” as opposed to the Church.131 Schmitt did not seek to somehow politicize Catholicism. This secular interpretation of Schmitt bears on his “decisionism.” In its revolutionary form, the acts and decisions of a charismatic authority are legitimate simply by virtue of that person’s charismatic will. This is not the case with office charisma. The legitimacy of office charisma, although not constrained by formal legality, is not arbitrary either. The authority is conceived of as subordinate to the institutional Idea he or she personifies and represents in practice. And this type of charismatic authority does not make what Cristi has called “hard” decisions, which decide on what public order there ought to be and represent an absolutely new beginning.132 Whatever decisions are made occur within a predetermined framework of order. Schmitt came to view “decisionism” as carrying too much baggage for what he wanted to convey. In 1934 he introduced “concrete-​order thinking” as an alternative ideal-​type to his earlier Hobbesian “decisionism,” which he intended to chart a new form of order and authority. Hofmann and Croce and Salvatore have argued that Schmitt’s concrete-​order thinking is not a break from his earlier decisionism but instead evolved out of it.133 And the Catholic   Carl Schmitt, Roman Catholicism and Political Form (G.L. Ulmen tr, Greenwood Press 1996) 14.

128

  Cf. Renato Cristi, Carl Schmitt and Authoritarian Liberalism:  Strong State, Free Economy (University of Wales Press 1998) 78. 129

  Reinhard Mehring, “Ein ‘katholischer Laie deutscher Volks-​und Staatsangehörigkeit’? Carl Schmitts Konfession” (2012) Supl. Extroaordinario Revista de Ciencias Sociales. 130

  Udi Greenberg, The Weimar Century:  German Émigrés and the Ideological Foundations of the Cold War (Princeton University Press 2014) 131. 131

  Cristi 73, 97–​8, 162, 240.

132

  Hofmann 136, 167; Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt (Routledge 2013) 13, 25. 133

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Church continued to serve as Schmitt’s example of authority, despite his conversion to concrete-​order thinking. For example, he wrote the Roman Catholic Dogma of the infallibility of a Papal decision likewise contains strong juristic-​decisionistic elements; but the infallibility of the decision of the Pope does not establish the order and institution of the church but presupposes them: the Pope is, as head of the church, only infallible in the power of his office; the Pope is not vice versa infallible.134

This passage from 1934 differs little in its substance from the 1923 passage quoted above.135 Schmitt consistently conceived of charismatic authority in terms of a living agent representing the higher abstract commitments of an institution, rather than the arbitrary and revolutionary will of a person blessed with the gift of god. In shifting from “decisionism” to “concrete-​ order thinking,” Schmitt seemed to have intended to more clearly distinguish his ideal of public order from the arbitrary rule of a tyrant.136 With that shift, Schmitt also became interested in the concept of nomos. In 1934, he affirms Pindar’s maxim that “law is king” (nomos basileus): although human interpretation is unavoidable, its legitimacy comes from its personification of the abstract reason of higher law.137 Schmitt again seemed to affirm that law should rule—​not humans. In arguing this, he separated the rule of law as mere formal legality from a thicker conception of the rule of law as Recht or nomos. In this sense, an immaterial being like a political status or a commitment can be a “sovereign” authoritative status even though it has no material agency. The status defines the parameters of what is to be decided on and the normative aims of what is being represented. In this sense, Schmitt’s efforts can be conceived of as an attempt to legitimate a form of authority capable of preventing and checking the abuses of formal, positive law—​such as the use of positive law procedures to undermine the constitutional order itself, the abuses occurring in Weimar.  Schmitt, On the Three Types of Juristic Thought 60. Compare also Schmitt’s discussion of Tertullian’s solution to the dilemma of Euthyphro. 134

  Similar illustrations of authority using the Papacy appear in Der Wert des Staates (1914) and Dictatorship (1921) suggesting deep continuity in how Schmitt understands the concept. “[According to the doctrine of the Roman Catholic Church], the infallible Pope is nothing in himself, he is only an instrument, the vicar of Christ on earth, servorum servus Dei. Likewise, the will of the absolute ruler can desire nothing more than what is right [Recht].” Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen 96, 102 and “The basis of the legal construction of any authoritative function remained the idea of personal representation and stewardship, which went in a coherent lineage of personal representation culminating in the supreme person. The pope himself is the vicarius Christi [Christ’s representative], and he is also called Christ’s commissar. The idea of Christ’s personhood is therefore the ultimate pinnacle of this conception of the law.” Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle 39ff. 135

 Schmitt, On the Three Types of Juristic Thought 43–​5; Cf. Bendersky 20.

136

 Schmitt, On the Three Types of Juristic Thought 49–​51.

137

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b.  Representing the political: status and artificial personhood Kelly has argued that Schmitt developed his theory of representation using Hobbes.138 Through his discussion of representation and authority, Hobbes focused on the question of how to attribute actions and decisions juridically, to people as well as to inanimate objects and immaterial ideas. Schmitt regularly drew on Hobbes in his work. Developing Schmitt’s relationship to Hobbes on this question offers another way to understanding Schmitt’s work on representation and authority. Hobbes begins his analysis of representation by distinguishing between natural persons, who are concrete individuals with agency, and artificial or fictional persons, whose agency and intentionality are represented by an “actor.”139 An artificial person could be a “natural” person (a person with agency and intentionality) who has commissioned another to represent his or her interests. Or an artificial person could be one of the following three de facto artificial persons: a biological human too young, irrational, or incompetent to form intentions and act upon them; an inanimate object, such as a building or piece of property; and finally an immaterial being (what Hobbes calls “a figment of the imagination”), like a god, which humans nevertheless treat as if it were real. Only a natural person can actually deliberate, decide, and act. Artificial people, lacking agency, cannot in fact do these things at all. Yet, like natural persons, artificial persons need to have their interests accounted for and acted upon in the world through deliberation and action—​despite their being unable to do so themselves. With “authority,” Hobbes solves the juridical problem of how artificial persons can do so: to authorize is to designate or commission another to act on one’s behalf.140 Juridically, the acts of that representative are attributed to the represented, who is conceived of as having “authored” them.141 The authority is conceived of as an extension of the author’s will. Skinner writes that the significance of representation is that it “allows those who are incapable of acting otherwise to be capable of having words and actions truly attributed to them.”142 Hobbes’ theory of representation and authority provides a juridical way for artificial persons to have acts attributed to them and to have their interests recognized. Loughlin describes how Hobbes’ sovereign was an impersonal authority:  “[it] occupied a public office charged with maintaining order and   Kelly, “Carl Schmitt’s Political Theory of Representation” 128.

138

  Thomas Hobbes, Leviathan (Hackett Publishing Company 1994) 202; Quentin Skinner, “Hobbes and the Purely Artificial Person of the State” (1999) 7 The Journal of Political Philosophy, 11–​14. 139

  Hobbes 101–​2; Skinner, “Hobbes and the Purely Artificial Person of the State” 8.

140

  Hobbes 102; Skinner, “Hobbes and the Purely Artificial Person of the State” 7.

141

  Skinner, “Hobbes and the Purely Artificial Person of the State” 16; Cf. Hobbes 104.

142

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promoting the common good” and its authority was delimited by these ends.143 Hobbes’ state was constituted as an object, an artificial person, in order to actualize or achieve a definite purpose—​to create and guarantee a particular civil status.144 Skinner and Thornhill note that this distinction results in a theory of double representation in Hobbes’ work: the state and its civil status is something (rationally) commissioned or authorized by its subjects.145 But it is a de facto artificial person that needs to be represented. It is thereby distinct from both its sovereign representative and its constituents. And this distinction matters for understanding what legitimate representation is in Hobbes’ theory. A sovereign authority represents the concrete terms of this civil status, giving it agency in the world. Schmitt, drawing on Vaihinger, argued that Hobbes’ theory did provide a juridical solution to the problem of attributing actions, intentions, and decisions to artificial persons (or juridical fictions).146 Hobbes’ theory clarified what a sovereign authority or representative is and who exactly it represents. Schmitt emphasized that Hobbes’ theory does not treat the civil status as merely material. That is, he believed that Hobbes does not argue the state and its “civil status” are realized merely through superior power and will. Looking at Books III and IV of Leviathan, Schmitt argued that Hobbes constructs his state around a Christian existential-​political status. Hobbes’ aim with his social contract theory was to defend the state’s juridical authority and to halt the conflict among the politicized Christian Confessions. Reason, he thought, led individuals to seek a civil status that could neutralize their conflicts. Such a status could succeed in depoliticization only if it appealed to a commitment higher than those held by the warring movements. Schmitt wrote in Hobbes’ time this higher neutralizing commitment was the truth-​ claim that “Jesus is the Christ,” a phrase repeated many times in Leviathan.147 In contracting, individuals surrendered their authority to make political decisions to the state in order to create that neutralizing civil status. And the sovereign representative must jealously guard its authority to interpret and concretize the meaning of that truth into a public political status from the denominations if it was to guarantee any enduring peace.  Loughlin, Foundations of Public Law 78.

143

  Noel Malcolm, “Hobbes Science of Politics and His Theory of Science” in Andrea Napoli and Guido Canziani (eds), Hobbes Oggi (Franco Angeli 1990) 151; Hont 184. 144

  Skinner, “Hobbes and the Purely Artificial Person of the State” 22ff; Thornhill 207–​8.

145

  Hans Vaihinger, The Philosophy of “As If ” (C. K. Ogden tr, Routledge & Kegan Paul Ltd 1965) vii, 33–​54, 116–​24. Vaihinger draws particular attention to this aspect of Hobbes’ thought, in particular regarding its “as if ” formulations. Schmitt was clearly influenced by Vaihinger in this regard. Cf. Carl Schmitt, “Juristische Fiktionen” (1913) 12 Deutsche Juristen-​Zeitung 804; Reinhard Mehring, Carl Schmitt: A Biography (Polity 2014) 24ff. 146

  Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol (George Schwab and Erna Hilfstein tr, University of Chicago Press 2008) 14–​15, 83; Carl Schmitt, “Die vollendete 147

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Schmitt agreed with Hobbes that a single political status was constitutive of a political body. Yet a status has no material reality. As an idea, it is de facto artificial, and stands in need of representation. It is, in Schmitt’s terms, neither present, visible, organized, nor formed.148 Representation enables this absent and unformed entity to have acts attributed to it—​to pursue and realize those interests in the world. Schmitt wrote that “to represent is to make an invisible being visible and present through a publicly present one. The dialectic of the concept is that the invisible is presupposed as absent and nevertheless is simultaneously made present.”149 The representative embodies the essence of what is represented and gives it material reality. Kelly argues that only a physically unitary representative could perform this role of sovereign representation.150 Yet both Schmitt and Hobbes acknowledged that non-​unitary bodies, such as parliament, were capable of this sort of existential representation.151 For Schmitt, what representation accomplished—​whether monarchical, parliamentary, or democratic—​was the concretization of the qualities that allowed a people to be a political unity rather than a multitude of individuals.152 Hofmann put it well when he writes that it represents “the political unity of the people—​not the people in its natural existence,” as a multitude.153 Representation could be accomplished by a single natural person or by an organized group as long as it issued unitary decisions. Lepsius writes that Schmitt conceived of representation of the people as an “imaginary reproduction of an existential substance [das identitär Abbilden einer existentiellen Substanz].”154 Hofmann’s and Lepsius’ remarks reveal that Schmitt, like many of Weimar’s anti-​positivists, conceived of the people as a juridical construct, one preceding the wills of actual individuals.155 Schmitt was not alone in thinking this either. Preuß and Naumann conceived of the German people in these organic terms as they drafted the Weimar Constitution.156 This juridical construct could even stand Reformation” (1963) 4 Der Staat 51, 52, 62–​3; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 121f; Carl Schmitt, “Brief an Norberto Bobbio (21/​1/​61)” in Piet Tommissen (ed), Schmittiana: Beiträge zu Leben und Werk Carl Schmitts, vol VII (Duncker & Humblot 2001) 353.  Schmitt, Constitutional Theory 271; Cf. Hofmann 71.

148

 Schmitt, Constitutional Theory 243; Cf. Böckenförde 49–​50; Schmitt, Roman Catholicism and Political Form 19; Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 48. 149

  Kelly, “Carl Schmitt’s Political Theory of Representation” 134.

150

 Schmitt, Der Hüter der Verfassung 78; Schmitt, “Die Wendung zum totalen Staat” 150; Schmitt, Roman Catholicism and Political Form 26; Carl Schmitt, “Was bedeutet der Streit um den ‘Rechtsstaat’?” in Günter Maschke (ed), Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916–​1969 (Duncker & Humblot 1995) 126; Cf. Cristi 156. 151

  Kelly, “Carl Schmitt’s Political Theory of Representation” 121.

152

  Lepsius 379, Cf. 382.   

154

  Hofmann 20–​1, Cf. 252–​4.

153

  Ibid 377, 390.

155

  Jörg-​Detlef Kühne, “Demokratisches Denken in der Weimarer Verfassungsdiskussion—​Hugo Preuss und die Nationalversammlung” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 118–​19, 131–​2; Hofmann 132. 156

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opposed to the actual expressed will of individual voters. What individual voters willed could, in fact, be a relapse into a state of nature-​like multitude if it was internally incoherent and also opposed to the state’s representation of the people. For this current in German state theory, democratic representation did not aim to produce the people out of nothing but to identify what was already there. The people was not the product of the acts of isolated individuals, which for Schmitt could be akin to Hobbes’ multitude, but was a real organism—​at least juridically.157 By conceiving of the people as existing in a prior and determinate condition, Schmitt suggested the genealogical debt his concept of the political owes to Savigny and the Historical School. Schmitt hinted that the sovereign is this authoritative status, the idea or commitment that enables a multitude of individuals to coalesce into a political unity and that a body like parliament is merely its representative.158 Nevertheless, as Loughlin argues, without sovereign representation, that status cannot juridically do anything at all.159 The task of this representative is to make that authoritative status “present.” Schmitt did not think authority was a license to act arbitrarily. Schmitt wrote that Hobbes’ auctoritas non veritas facit legem “is anything but a slogan of irrationalism despotism.”160 Authority is the solution to the problem of how to generate a stable political order, given the tendency of humans to politicize their commitments and the indeterminate nature of belief, value, and language. Examined in this light, Hobbes’ conception of the authorization or representation of Artificial Persons offers an account that runs parallel to the Catholic model. c.  Authority, not truth Schmitt’s clearest articulation of the relationship of the political and authority came late in his life. In his 1963 “Remarks” to The Concept of the Political, he gave three “hints” about Hobbes’ development of the political and its relationship to civil war. His third hint stressed the relationship between the political, truth, and representation through his construction of the Hobbes-​ Crystal (Figure 2.1).161 Schmitt used this Hobbes-​Crystal to elaborate on his 1932 remarks on Hobbes’ relationship to the political. The focus of this hint seems to be the line “[Hobbes] also recognized correctly that the conviction of each side that it   Lepsius 396–​8.

157

 Schmitt, The Concept of the Political 38. Scheuerman rightly argues in this context that Schmitt’s ideal of political representation is not some arbitrary tyrant, but an expression of the community as a body or person transcending its constituent parts. Scheuerman, Carl Schmitt: The End of Law 46–​7, 51. 158

  Cf. Loughlin, Foundations of Public Law 189, 205.

159

 Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol 44.

160

 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122.

161

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The Concept of the Political Above open to Transcendence 1 Veritas: Jesus Christus 5 2 Quis interpretabitur? 4 3 Autoritas non veritas facit legem 3 4 Potestas directa, non indirecta 2 5 Oboedientia Protectio 1 et et Protectio Oboedientia Under closed; System of Needs

Figure 2.1 The Hobbes-​Crystal

possesses the truth, the good, and the just bring about the worst enmities, finally ‘bellum’ of all against all.”162 In the absence of a single sovereign authority, groups seek to realize their beliefs about right order in the world through public law. Clashes arise among public orders competing within the same territorial space, and individuals are caught between them. Because of these the structure of public order ultimately rests on some truth-​claim, Schmitt argued that Hobbes’ state theory rested on an element of transcendence. This recognition of a transcendent truth-​claim underlying the state is the first axiom of Schmitt’s Hobbes-​Crystal: the authoritative status of a political community is informed by transcendent truth. In Hobbes’ time, this truth was “Jesus is the Christ,” which aimed to neutralize the doctrinal disputes among Christian denominations. The legitimacy of a political order or community hinges on whether it concretizes some politicized truth compelling enough to depoliticize their other commitments. This truth is a basis for political Friendship. Without it, other convictions will politicize and collide violently. As important as this initial decision is, it does not explain the concrete form a public order takes. Not only are there multiple opposed truth-​claims, but there may be multiple concrete interpretations of a single truth-​claim. Cristi distinguishes between deciding among different truth-​claims and deciding on how to interpret a single truth-​claim. He calls the former a “hard” decision, the latter “soft.”163 The second axiom of the Hobbes-​Crystal asks the natural question in the face of this second level of indeterminacy: whose interpretation is correct? Who may legitimately decide what that truth means in practice? For Hobbes, this question arose from a practical dilemma: in his time, although all Christians agreed on the abstract Idea of Christianity; violent

 Schmitt, The Concept of the Political 65.

162

  Cristi 162, see also 73, 97, 162, 97–​8, 103.

163

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conflict erupted because they disagreed on how to interpret that Idea concretely.164 Schmitt agreed with Hobbes, arguing the Reformation was a struggle over who could legitimately interpret the same abstract Christian Idea; it was a struggle over who decides (quis judicabit)?165 Who interprets and effects, in a legally binding way, this truth that stands in continual need of interpretation? Who decides what true Christianity is? The under-​determinacy of abstract truths gives rise to mixed concrete interpretations. These interpretations too may politicize and collide violently. The authority to decide on the correct interpretation of a doctrine is not a completely arbitrary exercise of power. It is true that the indeterminacy of language leaves gaps in the law that must be filled in by “soft” decisions.166 But soft decisions are hemmed in on both sides: by the need to adhere to that truth—​whatever status is constitutive for that community—​and the need to provide the basic material need of security.167 The hard decision, the political status, remains “sovereign” (in the same way that Hobbes’ sovereign was predetermined to be Christian). The authority to interpret is limited to those “soft” decisions where the vagaries of language leave gaps. Truth stands in continual need of an agent to represent its interests and act upon that interpretation. But this does not mean that truth was irrelevant for public order. The doctrinally driven civil war of Hobbes’ time was being reproduced in a way in Weimar too—​between different interpretations of what “the German people” meant and the relationship of that concept to democracy and constitutionalism. Another decision, analyzed in later chapters, was over the hierarchy among the different “positive” decisions of the Weimar constitution, in particular how its two principal parts of democracy and basic rights fit together. As an anti-​positivist, Schmitt was emphatic that it was not enough to simply ask the German people whether they thought the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei—​ the Nazi Party), SPD (Sozialdemokratische Partei Deutschlands—​the Social Democratic Party), or KPD (Kommunistische Partei Deutschlands—the Communist Party) had the correct interpretation of democracy and basic rights, for example. There was a right answer to that question. Moreover, legal procedures alone could not reconcile deep ideological oppositions. Value-​neutral proceduralism would not neutralize the political differences in society. It would only reproduce them in parliament.

  David Johnston, The Rhetoric of Leviathan (Princeton University Press 1989) 173.

164

 Schmitt, Political Theology II 51, 114.

165

  Galli notes how decision literally means the “cutting off ” (de-​cision) of alternative possibilities, in the same way a theological authority clarifies the meaning of dogma. Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno 258. 166

  Wolfgang Kersting, “Carl Schmitt und Thomas Hobbes” in Rüdiger Voigt (ed), Der Hobbes-​Kristall: Carl Schmitts Hobbes-​Interpretation in der Diskussion (Franz Steiner Verlag 2009) 99ff. 167

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Dilemmas over how to answer these interpretational questions lead to the third “central” axiom:  Hobbes’ maxim auctoritas non veritas facit legem. Escaping the state of nature means individuals authorize a sovereign representative person to collectively represent their political status, to collectively represent their right to interpret, producing enforceable law by concretizing an interpretation of right. This sovereign representative acts as a supreme judge, who can legitimately decide on the practical meaning and consequences of a community’s “existential-​political” identity—​its veritas. Through this act of authorization, the potential conflicts caused by the penumbra of the meaning of political concepts is mitigated. In other words, the sovereign representative concretizes one interpretation of a truth. As Lübbe has argued, it makes a soft decision that binds all by virtue of its authority rather than by virtue of its self-​evident truth-​claim.168 The fourth axiom links Schmitt’s arguments about the political to the state. He argued that only a direct power (potestas directa), not an indirect power (potestas indirecta), can hold this authority. For Hobbes, a monarch was an example of direct power and the Pope an indirect power. The authority of a direct power is justified by practical necessity. A direct power is authorized to interpret (an auctoritatis interpositio) in order to neutralize interpretative and doctrinal conflicts. And in the background of this claim is the idea that a direct power has the broader governmental apparatus for making and enforcing binding law. An indirect power, on the other hand, could really be anyone claiming to have direct access to the truth and claims the authority to interpret on that basis.169 Huber argues that indirect powers obfuscate what the public order is and undermine the peace it provides.170 They seek the benefits of commanding without any of the correlative duties. The fifth and final descending axiom argues that political authority must satisfy other criteria. It must provide security, peace, and order to be legitimate. If it cannot, Schmitt doubted questions of authority or “truth” will even arise. This material constraint further differentiates the direct power of the state from the indirect power of its competitors, which fail to guarantee material security. Like Hobbes, Schmitt found that, by representing and guaranteeing its subjects’ right of nature, their self-​preservation, the authority rationally obtains the right to its constituents’ obedience. The system of needs at the base of this crystal—​what appears to be a reference to Hegel171—​is  Hermann Lübbe, “Carl Schmitt Liberal Rezipiert” in Helmut Quaritsch (ed), Complexio Oppositorum: Über Carl Schmitt (Duncker & Humblot 1988) 431ff. 168

  The distinction between direct and indirect powers will map onto Schmitt’s distinction of scientific natural law and justice-​based natural law, discussed in Chapter 3. 169

 Huber 8.

170

  G. W. F. Hegel, Philosophy of Right (T. M. Knox tr, Oxford University Press 1967) §§189–​208.

171

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no longer “open” to transcendence because it is determined by material necessity. The need trumping all other material needs is the need to escape the state of nature and establish some modicum of peace and security.172 No transcendent truth can alter this basic requirement, so Schmitt described this basic relationship of protection and obedience as “closed.” Schmitt argued that an abstract truth cannot actually “rule,” it has no agency and requires some living representative in order to be realized and made effective. Although norms are sovereign, they are not “present” and cannot actualize concrete order. No truth is self-​realizing.173 In the chaos of the state of nature, claims about truth have no foundation to stand upon and are a cause of violent conflicts.174 Nevertheless, Schmitt placed transcendence and veritas at the top of his Hobbes-​Crystal. He places interpretative authority—​the auctoritas facit legem—​only at the third, “center” axis, around which his Hobbes-​Crystal turns. Schmitt did this to emphasize that sovereign interpretative authority is not arbitrary authority to rule irrationally or despotically. It is subordinate to something else: it guarantees the system of needs and mediates that transcendent truth. Political authority, which Schmitt argued could only be a direct power, was bound by both a factical and a normative component: the need to guarantee material security and the need to represent that neutralizing status. d.  Identity with the political Schmitt recognized subjects have rights, admittedly limited, against that sovereign authority—​which is one reason why his Hobbes-​Crystal can also be read from the bottom-​up.175 While the sovereign authority represents a truth-​claim by interpreting it, Schmitt argued that subjects must simultaneously identify with that truth. Schmitt denied that a “hard” decision on a truth-​claim could simply be imposed because doing so would fail to generate an authoritative, neutralizing status.176 Schmitt conceived of Identity and Representation as complementary concepts. The political status must both be a representation mediated by an authority and the unmediated identity of subjects. If it becomes exclusively one or the other, that political body will destabilize because either its subjects will see the state and sovereign as

 Schmitt, Gespräch über die Macht und den Zugang zum Machthaber 18–​19.

172

 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122–​3; Cf. Schmitt, On the Three Types of Juristic Thought 51. 173

  Horst Bredekamp, “From Walter Benjamin to Carl Schmitt via Thomas Hobbes” (1999) 25 Critical Inquiry 247, 252; Voigt 16; Kersting 95ff. 174

 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122.

175

 Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle 17–​18; Cf. Bhuta 27. 176

104

104 

• 

The Concept of the Political

engaging in sheer domination (an excess representation) or those subjects will become politically anomic and cease to recognize themselves as members of a public at all (an excess identity).177 Rousseau’s concepts of the general will (volonté générale) and the will of all (volonté des tous) may shed light on the complementary nature of Representation and Identity.178 The concept of the general will roughly maps onto Representation. Schmitt conceived of political representation as the representation of the qualities that one shares with other citizens as such, that is what makes up the essential features of the public as a discrete entity. When an individual represents those public qualities, she transcends the qualities that individuate from the commonwealth. The will of all roughly maps onto Identity. Identity defines the qualities that are constitutive of oneself as an individual. Schmitt argued that Identity is absolutely necessary to avoid tyranny. He argues that, without Identity, a state is without a people, a res populi without a populus.179 Members, subjects, and citizens identify with what is being represented. Similarly, although the relationship is by no means necessary, ideally Rousseau’s will of all maps onto the general will. Citizen-​ subjects deliberating individually will nevertheless all arrive to the same determination of what the general will consists in. Schmitt’s focus on Representation can be explained by his circumstances in Weimar: Weimar had a deficiency in Representation, not Identity. If anything, he thought, Weimar had an excess of Identity, which in turn created an environment where other indirect powers made up for the state’s absent political representation. But Schmitt’s focus on representation should not be read as neglect of the value of Identity. He argued that political stability presupposed both principles were satisfied—​that a political status must simultaneously be represented to subjects and recognized by those subjects as their political identity.180

4. conclusion Schmitt defined “the political” as an authoritative status defining membership of a community in terms of Friendship and Enmity. State presupposed the political. German jurists had conceived of this relationship backwards, laying the theoretical groundwork to exacerbate Weimar’s already fragile political situation by blinding themselves to the destabilizing effects of the presence  Schmitt, Constitutional Theory 248.

177

  Schmitt seems to have this distinction in mind when he cites Rousseau’s ideal of the citoyen as representative and a necessary feature of representation—​even in democracy. Ibid 240, 280ff; Cf. Lepsius 380. 178

 Schmitt, Constitutional Theory 248.

179

  Ibid 247; Cf. Carl Schmitt, “The Plight of European Jurisprudence” (1990) 83 Telos 35, 47–​9; Bhuta 23ff.

180

 105

Conclusion 

• 

105

of politicized parties and movements within the state. Schmitt intended his “career-​defining” sentence to theoretically clarify what the phenomenon of politicization, in his narrow sense of the term, was and why its autonomy from the state was such a pressing problem. Moreover, he hoped to show why it would be a recurring problem for any state that conceived of itself in terms similar to Weimar—​as merely a set of value-​neutral procedures with no fundamental commitments of its own. He saw this theoretical clarification as a step toward restoring the authority of the state and overcoming the instabilities that were threatening to tear it apart. But reinterpreting the political was only a part of the solution. It alone would not overcome the issues facing the twentieth century state and constitution.

106

 107

•3• The Absolute State

The political was an essential feature of an authentic state according to Schmitt.1 A  state’s political status must be coextensive with its people and territory if that state was to create any enduring stability. But Schmitt did not think the political exhausted the state. This chapter develops the rest of Schmitt’s theory of the state. Schmitt never wrote an Allgemeine Staatslehre (general theory of the state), as many theorists of public law from that time period did. But there are reasons to believe Schmitt had developed at least the framework for a general theory of the state. His correspondence with Ludwig Feuchtwanger, his editor at Duncker & Humblot, shows his Constitutional Theory (1928) began as an Allgemeine Staatslehre and that his article “Absolutismus [Absolutism]” (1926) was intended to be a prolegomena to that state theory.2 That Schmitt shifted to constitutional theory demonstrates not that he had abandoned the state but instead that the state and constitution were “intimately” linked, as Eric Voegelin argued.3 And The Concept of the Political and Constitutional Theory were written at the same time and reflect one another’s core features.4 Schmitt’s constitutional theory and theory of “the political” are both

  Carl Schmitt, “Un giurista davanti a se stesso” in Giorgio Agamben (ed), Carl Schmitt: Un giurista davanti a se stesso (Neri Pozza Editore 2012) 156; Ernst-​Wolfgang Böckenförde, “The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory” in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 37, 41; Ellen Kennedy, “Hostis Not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt” in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 92. 1

  Carl Schmitt and Ludwig Feuchtwanger, Briefwechsel 1918–​1935 (Rolf Rieß ed, Duncker & Humblot 2007) 123. Schmitt wrote to Feuchtwanger on January 3, 1925 “I hope to work hard over the holidays, first on a “philosophy of state” (for a Handbook [Handbuch]), and then on a general theory of the state [Allgemeine Staatslehre], by which I hope it becomes a good compendium both systematically and empirically and surpasses the many dilettantish attempts of recent decades. The Handbuch contribution was his article “Absolutismus” (1926); the Allgemeine Staatslehre became his Verfassungslehre (1928). 2

  Eric Voegelin, “Review of Verfassungslehre by Carl Schmitt” in Jodi Cockerill and Barry Cooper (eds), Selected Book Reviews, vol 13 (University of Missouri Press 2001) 42. 3

4

 Böckenförde 9ff.

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

108

108 

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The Absolute State

intimately related to his state theory.5 The next chapter will develop his constitutional theory. The state was one of Schmitt’s foremost concerns. He often discussed the state directly.6 Hofmann argues a recurring theme in Schmitt’s work is the legitimacy of public power and authority.7 Cristi remarks that, “like Hobbes, Schmitt’s entire intellectual production was marked by a radical defense of the state.”8 Lübbe describes how Schmitt was interested in Hobbes above all for how he dealt with civil war (and what Hobbes’ state theory meant as a response to the Confessional Civil Wars and its implications for its twentieth century parallel in modern mass democracy) and his “pessimistic” philosophical anthropology.9 McCormick has analyzed in depth the relationship between Schmitt’s philosophical anthropology and his concept of the state. In particular, McCormick examines how Schmitt followed Hobbes in characterizing “fear” as the central means to overcome humans’ inherent “evil” and to change their relationship from homo homini lupus [man a wolf to man] to homo homini homo [man a man to man], that is from the state of nature to the civil state.10 McCormick argues that Schmitt believed the state’s overwhelming power “corrects” its constituents’ innate evil and this power, insofar as it is able to serve as their “protector,” entitles the state to their obedience.11 5   Ernst Fraenkel and Karl Loewenstein both refer to Schmitt’s Verfassungslehre as his state theory when they discuss it in English. Karl Loewenstein, Observations on Personality and Work of Professor Carl Schmitt (Amherst College Archives and Special Collections 1945) 2; Cf. Ernst Fraenkel, “Zur Auseinandersetzung mit Carl Schmitt—​Besprechung von:  Peter Schneider, Ausnahmezustand und Norm, Eine Studie zur Rechtslehre Carl Schmitts, Stuttgart 1957” in Hubertus Buchstein and Rainer Kühn (eds), Gesammelte Schriften, vol 2 (Nomos Verlagsgesellschaft 1999). German legal theorists seemed to consider a Verfassungslehre as an extension or form of an Allgemeine Staatslehre in the tradition of Jellinek, see Karl Loewenstein. Markus Lang, “Karl Loewenstein: From Public Law to Political Science” in Axel Fair-​Schulz and Mario Kessler (eds), German Scholars in Exile: New Studies in Intellectual History (Rowman & Littlefield 2011) 25. 6  Noteworthy examples include Der Wert des Staates (1914), “Zu Friedrich Meineckes ‘Idee der Staatsräson’ ” (1926), “Der bürgerliche Rechtsstaat” (1928), “Wesen und Werden des faschistischen Staates” (1929), Hugo Preuß: sein Staatsbegriff und seine Stellung in der deutschen Staatslehre (1930), “Pluralistic State and Ethical State” (1932), and The Leviathan in the State Theory of Thomas Hobbes (1938). 7   Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 16. 8   Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (University of Wales Press 1998) 4; Cf. Helmut Rumpf, Carl Schmitt und Thomas Hobbes: Ideelle Beziehungen und aktuelle Bedeutung mit einer Abhandlung über:  Die Frühschriften Carl Schmitts (Duncker & Humblot 1972) 109ff; Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton University Press 1983) 285.

  Hermann Lübbe, “Carl Schmitt Liberal Rezipiert” in Helmut Quaritsch (ed), Complexio Oppositorum: Über Carl Schmitt (Duncker & Humblot 1988) 432. 9

 John P. McCormick, Carl Schmitt’s Critique of Liberalism:  Against Politics as Technology (Cambridge University Press 1997) 252. 10

  Ibid 253, 273ff.

11

 109

The Absolute State  

• 

109

McCormick also argues that Schmitt conceived of the state as a mechanical apparatus or a product of an “age of technology.” Based on this reading, McCormick writes that Schmitt “might have paid better attention” to other facets of Hobbes’ myth of the state, particularly how it is more than machine—​a great man and a mortal god.12 In McCormick’s reading, then, Schmitt’s state theory ends up looking exactly like what McCormick rightly argues Schmitt criticized:  a mechanical quid pro quo exchange of physical protection for obedience—​obedience to whatever (positive) law happens to be produced by the state.13 McCormick then writes that “if a state is purely mechanical, if no value inheres within it other than efficiency, then that state knows no boundaries or limits—​not even that which is theoretically restrained in the Hobbesian state:  the protection of individual life.”14 He believes Schmitt had no answer to the question “what is to keep the [state] from being a force of indiscriminate domination instead of objective neutrality?”15 He concludes Schmitt’s state merely executed whatever commands were fed into it and was incapable of generating meaning in the lives of its constituents. But McCormick does not take up all of Schmitt’s arguments about the state, arguments that address the very objections he raises. Schmitt’s 1938 The Leviathan in the State Theory of Thomas Hobbes was intended as an extended criticism of that “mechanical” state. And he did engage substantially with the richer “myth” Hobbes based his own state theory on. Schmitt was alarmed that Hobbes’ myth subsequently became impoverished and reduced to just its mechanical aspect. It is the loss of the “mortal god” and the “giant man” images of the state—​which make it more than just an institution of positive law and mere mechanical protection and obedience—​that Schmitt lamented having been disenchanted and lost.16 McCormick’s criticism of Schmitt reproduces Schmitt’s criticism of the twentieth-​century mechanical state. But Schmitt had far more to say about this richer “myth.” Kelly also discusses Schmitt’s state theory. He argues Schmitt constructed an essentially tautological state theory:  “the state is political unity is the state.”17 While Kelly is correct that, for Schmitt, these two concepts should be linked, Schmitt had argued that organizations besides the state may politicize   Ibid 283–​4.

12

 Ibid 275.

13

 John P. McCormick, “Teaching in Vain:  Carl Schmitt, Thomas Hobbes, and the Theory of the Sovereign State” in Oliver Simons and Jens Meierhenrich (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2014) 23; McCormick, Carl Schmitt’s Critique of Liberalism 279ff. 14

15

 McCormick, Carl Schmitt’s Critique of Liberalism 279.

  Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol (George Schwab and Erna Hilfstein tr, University of Chicago Press 2008) 34–​5. 16

  Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford University Press 2003) 187. 17

10

110 

• 

The Absolute State

and the state may be apolitical. The state and the political could have no relationship at all. Therein lies the cause of the crisis of the twentieth-​century state, as the last chapter discussed. As politicized movements seek to impose their commitments as public order, they undermine the authority and legitimacy of the state and the existing public order. The resulting confusion over the center of public authority leads to violent domestic conflict and civil war. Kelly, like McCormick, rightly points to the role Schmitt’s philosophical anthropology plays in his state theory. He argues Schmitt believed anthropological evil makes man “dangerous” and suggests that the individuation of political interpretation is the source of that danger and conflict.18 It is also the reason why the state is necessary in the first place. But, like McCormick, the relationship of “evil” to the state of nature remains at best implicit in Kelly’s account.19 Kelly does not go beyond a negative critique of human anthropology and concludes that Schmitt’s response to evil lay in his interpretation of Hobbes’ state as a mechanical myth—​a conclusion he inherits from McCormick.20 There is not a clear sense of what exactly is evil about human nature for Hobbes or for Schmitt, or what links evil and this dangerous individuated understanding of the political. Huber, Kervegan, and Heimes all describe how Schmitt built his state theory on a conservative reading of the history of political thought, stretching from Hobbes to Hegel, according to which the existence of the state was a precondition for any normative order at all.21 In this reading, the state’s monopoly over the political is justified because it holds back the state of nature and the war of all against all.22 Similarly, Bhuta analyzes how Schmitt’s state theory, drawing on nineteenth-​century German state theory, defended the legitimacy of an authoritative public legal order in order to allow normal social relations and meaningful human life.23 Bhuta shows how deeply indebted Schmitt is to the Hegelian tradition, arguing that the role of Schmitt’s state is to create a substantive normative order by overcoming the centrifugal forces of individual will and egoism, which would otherwise cause citizens to revert back to a multitude.24 Although Bhuta describes 18

 Ibid 221.

  Ibid 245–​7.

19

 Ibid 255.

20

  Ernst Rudolf Huber, “‘Positionen und Begriffe’: Eine Auseinandersetzung mit Carl Schmitt” (1941) 101 Zeitschrift für die gesamte Staatswissenschaft 1, 8; Jean-​François Kervegan, “Politik und Vernünftigkeit Anmerkungen zum Verhältnis zwischen Carl Schmitt und Hegel” in Helmut Quaritsch (ed), Complexio Oppositorum:  Über Carl Schmitt (Duncker & Humblot 1988) 375, 383–​ 4; Claus Heimes, Politik und Transzendenz: Ordnungsdenken bei Carl Schmitt und Eric Voegelin (Duncker & Humblot 2009) 47. 21

  Kervegan 386; Cf. G.  W. F. Hegel, Philosophy of Right (T. M. Knox tr, Oxford University Press 1967) §§257, 324. 22

  Nehal Bhuta, “The Mystery of the State: State-​Concept, State-​Theory and State-​Making in Schmitt and Oakeshott” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 21ff. 23

 Ibid 34f.

24

 1

Machina Machinarum 

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111

Oakeshott’s state theory “as a combination of Hegel and Hobbes”25 in that analysis, his claim could just as easily be made about Schmitt. This chapter builds on these arguments and extrapolates Schmitt’s state theory, analyzing it as a product of the influence of Hegel and Hobbes. It does so first by discussing Schmitt’s critique of the mechanical state. It then looks at Schmitt’s engagement with the social contract tradition and his theory of “scientific natural law [wissenschaftliche Naturrecht]” in his early writings and links it to his later engagement with Hobbes’ state theory. Finally, this chapter outlines how Schmitt understood the state as both a neutral force, intended to depoliticize social antagonisms, and a neutralizing force, intended to sustain its political status. This chapter concludes by discussing the meaning of Hobbes’ mythical totality.

1. 

machina machinarum :

the one-​s idedness of the mechanical state

Nearly four centuries after Hobbes first published Leviathan, Schmitt thought that we retained only half of Hobbes’ original mythical “totality”:  the “machine of machines” and the “giant animal.”26 The two more important facets of Hobbes’ Leviathan image or myth, giant man and mortal god, had entirely disappeared from state theory.27 The image of Leviathan as a giant animal applies only in international relations, where the state is conceived as an irrational elementary force.28 “Beyond the line,” Schmitt wrote, one only  Ibid 21.

25

 Schmitt, The Leviathan in the State Theory of Hobbes 19. Schmitt’s interpretation of Hobbes evolved over the course of his life. His early reading of Hobbes is that of a positivist. But Schmitt’s reading is caught between the discussion of Hobbes as a theorist of absolute sovereignty, positive, and relativist (nominalist) [Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 2005) 33–​4, 47, 52] and a theorist who designed a mortal god that instituted a transcendental order and fostered rationality in its constituents [ibid 48; Cf. Carl Schmitt, “Thomas Hobbes/​ Baruch Spinoza (1919)” in Piet Tomissen (ed), Schmittiana: Beiträge zu Leben und Werk Carl Schmitts, vol VII (Duncker & Humblot 2001) 15–​16]. Schmitt’s understanding of Hobbes is still marked by positivism and the coincidence of power and legitimacy in the early 1930s, but Schmitt stumbles over tensions in his particular understanding of decisionism and its implication of arbitrary decision-​making [Carl Schmitt, The Concept of the Political (George Schwab tr, The University of Chicago Press 1996) 65; Carl Schmitt, On the Three Types of Juristic Thought ( Joseph W. Bendersky tr, Praeger Publishers 2004) 61, 74]. By 1938, Schmitt has begun to integrate his interpretation of Hobbes’ as a theorist of substance and legitimacy into his earlier reading [Schmitt, The Leviathan in the State Theory of Hobbes 82ff]. By 1963, Schmitt depicts Hobbes as he saw himself: a theorist of (relativized) natural law, someone who believes that some condition of legitimacy must ground any political order [Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien (3rd edn, Duncker & Humblot 1963) 121–​3]. Despite his evolution, Schmitt’s 1963 reading of Hobbes ends up looking little different from his 1921 reading [Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Michael Hoelzl and Graham Ward trs, Polity 2013) 16–​19, 79ff. 113] on the core question of how Hobbes theorized scientific natural law, which was concerned not with the content of the decision but the fact of having one at all. 26

 Schmitt, The Leviathan in the State Theory of Hobbes 19, 62.

27

28

  Ibid 49–​50.

12

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• 

The Absolute State

encounters “werewolves.”29 Only within a state’s borders could civilization be discussed. But today, Schmitt argues, the state is domestically conceived of only as a mechanical or technical instrument, by which he meant it merely executes whatever commands were fed into it. Schmitt believed Hobbes’ myth “ran aground” when it became incapable of containing the state of nature, that is when it came to be understood only in technical, mechanical terms. Leviathan ran aground because it too had been disenchanted, reduced to its mere positive empirical or “scientifically” analyzable aspects. Schmitt did argue that this mechanical image was an essential part of the state. Reflecting on Hobbes’ state theory, Schmitt wrote that Hobbes conceived of the state’s institutions as a giant body and its “sovereign representative person” as its soul, which intent on its mechanical body “piloted” the state.30 As a mechanical entity, the state’s meaning resides in its technical, material perfection. This means the state neither offers nor defends any conception of right but is merely an instrument in the hands of its pilot.31 The mechanical image was indeed intended to depict the state as an institution that merely executed whichever legal commands were “fed” into it externally. It conveyed formalized law’s qualities of predictability and calculability as well as the neutrality of the state itself. The core principle of the mechanical image of Hobbes’ state, Schmitt argued, was the maxim protego ergo obligo. He wrote that the cogito ergo sum of the mechanical state is “I protect therefore I oblige.”32 Schmitt conceived the mechanical image of the state as the base of his Hobbes-​Crystal. A legitimate state must at minimum guarantee its constituents’ physical or material security.33 Without guaranteeing this most elementary need, there could be “no form of order, no reasonable legitimacy or legality.”34 Schmitt argues that the reason we conceive of the state in mechanized terms today began in the eighteenth century.35 Eighteenth-​century thinkers conceived of the state in increasingly rationalized or mechanized terms, gradually eroding the multifaceted sense it had in Hobbes’ time. Schmitt wrote that, because of this process, “the leviathan becomes nothing other   Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (G. L. Ulmen tr, Telos Press Publishing 2003) 95–​7. 29

  Schmitt, “Thomas Hobbes/​Baruch Spinoza (1919)” 11, 16–​17; Schmitt, The Leviathan in the State Theory of Hobbes 37, 50; Cf. Schmitt, Dictatorship 88, 270. 30

 Schmitt, The Leviathan in the State Theory of Hobbes 42; Cf. Carlo Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno (Il Mulino 1996) 375ff. 31

32

 Schmitt, The Concept of the Political 52.

33

 Schmitt, The Leviathan in the State Theory of Hobbes 45.

34

 Schmitt, The Concept of the Political 52.

 Schmitt, The Leviathan in the State Theory of Hobbes 65; Cf. Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (The MIT Press 1988) 34–​5 (fn 38). 35

 13

Machina Machinarum 

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113

than a huge machine, a gigantic mechanism in the service of ensuring the physical protection of those governed.”36 The rise to predominance of statutory positivism in the late nineteenth century represented the culmination of that process of mechanization.37 Statutory positivists had ended the state’s dualism, conceiving of it as an institution of power and facticity but not right and norms.38 As Dyzenhaus argues, Schmitt thought the totalization of the image of the mechanical state reduces it to a “soulless” instrument accessible to anyone who can seize control over it and become its “pilot” or “soul.”39 The state was rationalized. With the state thoroughly mechanized, it can only be conceived of as an instrument of power—​a machine for executing statutes.40 This mechanized state was something that could be controlled and instrumentalized by anyone for any purpose. There was no basis to distinguish a legitimate from an illegitimate use of the state as long as the “pilot” continued to guarantee subjects’ protection. But, Schmitt wrote, although the mechanical state is still supposed to guarantee its subjects’ material survival, the existence it guarantees them would be empty and meaningless.41 When, as previous chapters have argued, the state fails to generate any political status, political movements will emerge to fill that void. And this internal politicization can lead to violent conflict and civil war within the state. Schmitt’s concern was that a merely mechanical state, a state that consciously does not provide a political status and depoliticize its society, will not be able to guarantee its subjects’ material survival. Schmitt stressed that this total mechanization of the state was never Hobbes’ intent.42 Schmitt thought that a merely mechanical state could not justify its authority. The image of the state as a mechanism describes a necessary but insufficient quality of political authority. Schmitt wrote this impoverished symbol “leaves nothing to remind people of a ‘huge man’ and a god created by human reason. The leviathan assumes an inhuman or a subhuman appearance . . .”43 And without a single authoritative “soul,” the mechanical  Schmitt, The Leviathan in the State Theory of Hobbes 34–​5 (my emphasis).

36

  Martin Loughlin, “Politonomy” in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2015) 3. 37

  Cf. Hofmann 51, 54; Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) 53–​8. 38

  David Dyzenhaus, “‘Now the Machine Runs Itself ’: Carl Schmitt on Hobbes and Kelsen” (1994–​1995) 16 Cardozo Law Review 1, 1, 8. 39

  Martin Loughlin, Foundations of Public Law (Cambridge University Press 2010) 205ff.

40

  Carl Schmitt, “The Age of Neutralizations and Depoliticizations” (1993) 96 Telos 130, 142.

41

 Schmitt, The Leviathan in the State Theory of Hobbes 41–​2; Schmitt, “Thomas Hobbes/​Baruch Spinoza (1919)” 10; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122. 42

 Schmitt, The Leviathan in the State Theory of Hobbes 62–​3.

43

14

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The Absolute State

state was “devoured” by politicized movements.44 Schmitt thought Hobbes’ intellectual context, the coexistence of his materialism and his Christianity, was often overlooked. Total mechanization was the product of an evolution in ideas that Hobbes could not foresee. Disenchantment and rationalization were pressing problems in Hobbes’ time. Schmitt argued that Hobbes understood the state in far richer terms. Although the image of the mechanical state was a facet of political legitimacy, the state was more than a powerful instrument. Hobbes’ state was a complex of opposed images.45 What has been lost to state theory today, Schmitt argued, is the state’s connection to substantive or philosophical commitments.46 This philosophical connection was the state’s orientation by a truth-​claim (in Schmitt’s Hobbes-​Crystal, a “veritas”). Hobbes’ state, for example, was ordered by its commitment to a form of Christianity.47 There were as many potential types of states as there were political statuses. A merely mechanical state did not “represent” any valid order at all.48 The totalization of this mechanical image eroded the state’s representative qualities.49 When it no longer represented any political status, the state could not create a unified people out of the multitude. In other words, the loss of the myth of the state as giant man and mortal god, Schmitt argued, was decisive in leading to its legitimation crisis.

2.  the meaning of the individual In The Concept of the Political, Schmitt argued a political philosophy can be categorized according to how it answers the question “are humans naturally good?”50 If human nature is fundamentally good, we can and will order ourselves naturally. The state is not only unnecessary but unjust, as it interferes with that natural goodness and peaceful relations. Schmitt argued this dogma is the basis for worldviews that are ultimately anarchistic. If, on the other hand, human nature is not good but fundamentally evil, we cannot and will not order ourselves naturally. The state, an artificial means to produce order, is not only just but necessary. Schmitt wrote that this dogma is the basis for worldviews that are ultimately authoritarian.51 He thought that only 44

 Ibid 73.

46

 Schmitt, The Leviathan in the State Theory of Hobbes 100 Cf. in particular Schmitt’s fn. 14.

47

  Cf. Loughlin, Foundations of Public Law 206–​7.

48

 Schmitt, The Leviathan in the State Theory of Hobbes 68–​73.

49

  Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 248.

 Galli 790.

45

 Schmitt, The Concept of the Political 58; Schmitt, Political Theology 55–​7, 66; Carl Schmitt, Political Romanticism (Guy Oakes tr, Transaction Publishers 2011) 3ff. 50

  Schmitt associates authoritarianism with order backed by the coercive imposition of its laws and the spectrum of authoritarian states in his thought runs from the laissez-​faire bourgeois Rechtsstaat to a 51

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The Meaning of the Individual 

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115

this latter type was authentically political (unless anarchists sought to impose their convictions, in which case they would cease to be anarchists). In early writings, Schmitt described how social contract theory split into two branches: justice-​based natural law [Gerechtigkeitsnaturrecht] and scientific natural law [wissenschaftliche Naturrecht]. These two branches reflect the two answers and show how Schmitt’s state theory might fit with the social contract tradition. a.  Justice-​based natural law Schmitt identified justice-​based natural law with the thought of Grotius and Locke. This tradition holds that natural law or laws of reason exist even in a State of Nature, they are enforceable in a non-​arbitrary way, and some form of public order is possible without the state. Because some juridical order exists independently of the state, individuals possess some inherent juridical status, even if it is a minimal one, in a state of nature. Importantly, this status includes the provisions of some basic rights and freedoms. Regardless of whatever institutional arrangements are generated through contracting, subjects’ freestanding juridical status ensures that constituted powers remain actually accountable to their subjects.52 Subjects may find their rights are better served or guaranteed outside a particular state’s juridical order in a state of nature and will accordingly revoke their authorization of that state. Because of this inalienable right, Schmitt concluded that the justice-​based natural law tradition holds individual freedom to be in principle unlimited and the state to be in principle constrained.53 Moreover, Schmitt argued this tradition holds that, for the existence of natural law or laws of reason to have any meaning in the state of nature, they must somehow generate consensus on their content and application. This argument could either presuppose God has the ultimate authority to interpret and enforce the law, as Locke and Grotius do, and Schmitt argued that this tradition grew out of Christian natural law,54 or this argument could presuppose a natural harmony of individual reason on fundamental laws of nature in this world, as anarchism seemed to do. Either way, it presupposes that “there can be no doubt about what is right and what is in the public interest . . . [that] a common, equal and unmediated conviction” about right emerges immanently.55 totalitarian state. Here, he understands authoritarian descriptively. In this sense, he seems to adopt arguments from the anarchist tradition but without their corresponding pejorative valuation of authority.  Schmitt, Dictatorship 98–​9.

52

53

  Ibid 98; Cf. Schmitt, Constitutional Theory 170ff.

 Schmitt, Dictatorship 99.

54

  Ibid 18–​19. Franz L. Neumann, “The Social Significance of the Basic Laws in the Weimar Constitution” (1981) 10 Economy and Society 333; Franz L. Neumann, “The Decay of German Democracy” in W.E. Scheuerman (ed), The Rule of Law under Siege (University of California Press 1996) 31. 55

16

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But Schmitt thought this last presupposition begs questions. If order and rights exist independently of the state, what function does the state serve? Why constitute or contract into a state at all? This tradition appears to undermine the justification and purpose of the state. And in fact this is related to the anarchist objections to the state: the state should have no authority to interpret and enforce the law because individuals’ natural reasoning generates a more legitimate order than anything the state could. Moreover, in that condition, coercion seems wholly unnecessary. Schmitt thought there are very few true anarchists, however.56 This justice-​ based natural law tradition originated with the presupposition of a powerful and rational god. It recognized that there are limits to an individual’s ability to interpret the laws of reason in this world and the state is justified to concretize and promulgate a single authoritative interpretation of natural law. Locke, for example, recognized that individuals need an authority to interpret to obtain a meaningful and enduring peace.57 For this reason, he eventually defended the validity of the state’s public order and its right to interpret law. Schmitt added that most often proponents of justice-​based natural law “do not mean either the plebs or the incondita et confusa turba [the confused and disordered crowd], but only the people who are represented . . .”58 Schmitt singled out Locke on this point and claimed Locke had both ruled the masses out of his state theory altogether and ultimately denied that individual reason would naturally harmonize on the concrete meaning of the laws of reason. In other words, this tradition was never intended to grant any right to interpret directly to a multitude. It presupposed a harmonizing reason or right prior to actual individuals that was the basis of political legitimacy. Historically, Schmitt thought the justice-​based natural law tradition did reluctantly buy into the fundamental claim of the scientific natural law tradition: it accepted that the state was necessary for a peaceful and meaningful existence. I suspect that Schmitt hoped to force liberals and democrats to recognize there are fundamental issues that require a single, authoritative interpretation and that this authority includes the right to compel obedience to its order.59 He insisted that liberals and democrats actually do hold political attitudes and recognize some degree of human “evil,” in the sense of disharmony and instability—​even if they did not recognize it explicitly. They 56

 Schmitt, The Concept of the Political 64.

57

  John Locke, Two Treatises of Government (Cambridge University Press 1994) 282.

58

 Schmitt, Dictatorship 19.

  Schmitt explicitly remarks in “Ethic of State and Pluralistic State” that even Kantians and liberals presuppose an independent ethic of the state that authorizes its power and unity. Carl Schmitt, “Ethic of State and Pluralistic State” in Chantal Mouffe (ed), The Challenge of Carl Schmitt (Verso 1999) 196. In his commentary on Schmitt, Strauss seems to argue this point too: liberalism, in its emphasis on basic individual freedoms, “forgets” there is a limit to freedom, no matter how liberal one is. Leo Strauss, “Notes 59

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should also recognize that some authoritative status—​even if that authority and constraint is minimal—​is necessary to overcome the antagonisms that naturally occur among humans.60 b.  Scientific natural law In The Concept of the Political, Schmitt writes a pessimistic conception of man “is the fundamental presupposition of a specifically political philosophy [Gedankensystem].”61 He argues that, were human nature naturally “good,” there would be no need for political institutions. Schmitt thinks an authentic political philosophy will on some level justify political authority over individual license.62 Individual license was dangerous because the general mass of people “was something irrational that needed to be governed and led by reason.”63 State and political theory thus considers what orders and institutions are necessary to overcome the worst aspects of human nature in order to allow any sort of meaningful existence to be possible at all. For Schmitt, political philosophy was a question of what and how much authority was necessary to hold back the evil of human nature.64 Schmitt developed his arguments about the disorder inherent in human nature. Schmitt wrote that man’s unchecked animality, drives, and passions give rise to evil and that this is the fundamental law of political life.65 But the deeper cause of “evil” is not individuals’ failure to exercise reason or to obey the dictates of morality. To the contrary, Schmitt thought individuals exercising reason and behaving morally, however they understood it, was the source of the problem. He wrote that the source of the insecurity in the state of nature was “the conviction of each side that it possesses the truth, the good, and the just [which brings] about the worst enmities, finally the “bellum” of all against all.”66 That is, the cause of the state of nature is human moral conviction and humans’ drive to realize those convictions concretely, as public order. As individuals form and act on intentions in the absence of the state and its public legal order, they create a condition of insecurity. on The Concept of the Political” in The Concept of the Political (The University of Chicago Press 1996) 92; Cf. Schmitt, The Concept of the Political 61.  Schmitt, The Concept of the Political 58; Schmitt, Political Theology 55–​ 7, 66; Schmitt, Political Romanticism 3ff. 60

 Schmitt, The Concept of the Political 65; Cf. Hofmann 112, 117, 164.

61

 Schmitt, The Concept of the Political 58–​9; Schmitt, Political Theology 55–​7; Schmitt, Political Romanticism 3ff; Schmitt, Dictatorship 6. 62

 Schmitt, Dictatorship 7.

63

 Schmitt, The Concept of the Political 61.

64

  Ibid 59; Cf. Strauss 95, 98–​9; William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 232. 65

 Schmitt, The Concept of the Political 65; Cf. Schmitt, Dictatorship 17.

66

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Why would Schmitt conclude that beliefs about “truth, goodness, and justice,” subjectively well-​intentioned acts, are the source of existential conflict? The answer has to do with a form of skepticism, which derives from Hobbes’ nominalism, and which Schmitt plugged into Weber’s theory of disenchantment and pluralism.67 Schmitt concluded that the world is ethically irrational. Commitments and worldviews are not objectively verifiable facts; individuals are affected by them. Outside the state, this perspectivism becomes a source of political conflict. Groups subscribe to different and sometimes opposed commitments and worldviews. But even a shared set of commitments and worldviews can give rise to disagreements among adherents about how to interpret their shared values concretely. For this latter case, Schmitt probably had in mind something like Hobbes’ remarks about the laws of nature in De Cive VI.16. There, Hobbes wrote that “Theft, Murder, Adultery, and all wrongs [injuriae] are forbidden by the laws of nature, but what is it to count as a theft on the part of a citizen, or as a murder or adultery or a wrongful act is to be determined by the civil, not the natural, law . . .” Even if reason converges on the validity of these laws in the abstract, it does not guarantee convergence on their concrete meaning and practice. An authoritative decision on when something counts as murder (as opposed to a justifiable killing) or theft (as opposed to legitimate appropriation) is required. That authority is absent “naturally,” which is to say outside the state. Schmitt argued that some of these oppositions among commitments and worldviews will be political, in the sense discussed in Chapter 2. That is, a political commitment is the foundation of a particular public order. That commitment is actualized through institutions like public law, which brings the commitment to bear on how individuals behave and interact with one another. Its members would risk death to maintain that order and its actuality. They see that order as right and its opposition as wrong. These normative qualities of rightness and wrongness, Schmitt believed, extend also to members who practice those commitments. What causes a state of nature-​like condition, Schmitt believed, is when adherents of different commitments compete to impose them across a space in the absence of an authoritative public status. Schmitt described Hobbes’ scientific natural law tradition as arguing that, outside of the state, where there is no recognized authoritative interpretation of what is right, the question of “what right is” or “who decides” is left to those involved to decide. And those involved will of course seek to impose their convictions of what right is. In these circumstances, Schmitt argued, each has as much “right” as his or her power (potentia) grants, including   For Schmitt on Hobbes’ nominalism, see Carl Schmitt, “Die vollendete Reformation” (1963) 4 Der Staat 51, 53. 67

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the authority to interpret existential commitments and their concrete realization.68 He emphasized that, in the moral vacuum of the state of nature, there can be no juridical status or rights.69 Not even property rights exist in a state of nature.70 These sorts of rights can only be established by judicial order.71 Right in a state of nature is an extension of the fact of one’s power. This “right” to exercise one’s power however one sees fit, without constraint, amounts to a state of license (licentia), which Schmitt likened to a vacuum in which individual atoms collide against one another randomly and violently.72 Schmitt argued that to suggest that a juridical status exists in this condition, as the justice-​based natural law tradition seeks to, makes little sense.73 The most violent “collisions” occur precisely over the concrete meaning of status-​claims. And that status becomes normalized only as long as whoever is committed to it is stronger than whoever opposes it politically. But, Schmitt argued, this is no real solution to the state of nature and its political pluralism. In a state of nature the answer to “who decides” becomes a question of who has the power to compel their ideal or interpretation at a given moment. “Right” becomes an extension of power. But power is hardly a basis for legitimacy and generates no lasting peace. So, Schmitt insisted, there can be no right [Recht] in a state of nature.74 As long as the right to interpret what values ought to structure public order and how they ought to do so remains individuated, the state of nature exists. An authority is needed to overcome this condition, which Schmitt thought is best characterized as one of beastly egoism and domination, in which “man is a wolf to man.”75 In sum, without political authority, no meaningful and lasting existential commitments could be made.76 In his Die Tyrannei der Werte (1959), Schmitt linked his interpretation of Hobbes’ state of nature to Weber’s arguments about disenchantment and value-​pluralism, writing that The purely subjective freedom of [individual] value-​ determination [Wertsetzung] leads to an eternal struggle of values and ​​ Weltanschauungen, a war of all with all, an eternal bellum omnium contra omnes, to which the old bellum omnium contra omnes and even the murderous state of nature of the   Carl Schmitt. Der totale Staat bei Thomas Hobbes. NRW Folder 19965.

68

  Schmitt, “Ethic of State and Pluralistic State” 199.

69

 Schmitt, Dictatorship 17.

70

  Schmitt seems to borrow this from Laband, his teacher. Cf. Loughlin, Foundations of Public Law 320.

71

  Schmitt, “Thomas Hobbes/​Baruch Spinoza (1919)” 15.

72

 Schmitt, Dictatorship 16–​17, 99.

73

 Schmitt, Der totale Staat bei Thomas Hobbes.

74

 Schmitt, The Leviathan in the State Theory of Hobbes 31; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 121; Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 95–​9; Carl Schmitt, Gespräch über die Macht und den Zugang zum Machthaber (Klett-​ Cotta 2012) 12. 75

 Schmitt, Der totale Staat bei Thomas Hobbes; Schmitt, The Leviathan in the State Theory of Hobbes 11, 21–​2.

76

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political philosophy of Thomas Hobbes is truly idyllic in comparison. The old gods rise from their graves and fight their old battles once again, but disenchanted and—​it should not be added—​with new means in the struggle which are no longer mere weapons but terrifying means of annihilation and extermination, atrocious products of value-​free science and the industrialism and technology serving it. What is for one the devil is for the other god. “And so it goes throughout all the orders of life . . . and indeed for all time” . . . It is always values that precipitate the conflict and sustain enmity. That the old gods have become disenchanted and become merely accepted values makes the conflict spectral and the antagonists hopelessly polemical. That is the nightmare Max Weber’s depiction presents to us.77

Löwith recognized this thread in Schmitt’s thought, writing that he was preoccupied by how value-​pluralism fueled conflict and kept Enmity alive, creating that state of nature.78 The total depoliticization of the state gave free rein to this sort of value pluralism. The depoliticized state not only could not hold back this “natural” condition, it exacerbated tensions because—​ as a machine for enacting the will of whoever controlled it—​its possession heightened the stakes of conflict. Hofmann rightly remarks that in Schmitt’s reading of Hobbes, the state of nature is not actually a natural state at all but the natureless, worldless state of permanent emergency that emerges when political order breaks down.79

3.  the value of the state Schmitt, still drawing on Hobbes, asked how escape from this “natural” condition was possible. The answer was a “spark of reason.”80 Reason recognizes the cause of the state of war is the politicized pluralism resulting from the unlimited right to interpret. It recognizes the problem to be the lack of an answer to the Hobbesian question of “who decides?,” that is who decides  Carl Schmitt, Die Tyrannei der Werte (Duncker & Humblot 2011) 39–​40. This can be compared to Schmitt’s remarks in Political Theology (which began as an essay in remembrance of Max Weber), which also link the problem of subjective valuation to the bellum omnium contra omnes: “Everyone agrees that whenever antagonisms [Gegensätze] appear within a state, every party of course only wants the general good [jede Partei natürlich nur das allgemeine Beste will]—​indeed therein resides the bellum omnium contra omnes.” Schmitt, Political Theology 9 (translation altered). Although every party “only wants the general good,” the assertion of what good consists in can be enough to rupture the state when it is politically antagonizing. Subjective valuation is therefore a main cause of political instability; political theology is the problem of how antagonistic conceptions of right compete to be realized concretely. 77

78

  Karl Löwith, “Max Weber und Carl Schmitt” (2007) 2 Zeitschrift für Kulturphilosophie 365, 373.

79

 Hofmann 164.

 Schmitt, The Leviathan in the State Theory of Hobbes 33, 92, 97; Cf. Schmitt, “Die vollendete Reformation” 64ff; Carl Schmitt, Political Theology II (Polity 2008) 51, 114ff; Schmitt, Constitutional Theory 88–​93; Carl Schmitt, “Zu Friedrich Meineckes ‘Idee der Staatsräson’” in Positionen und Begriffe im Kampf mit Weimar—​ Genf—​Versailles (Duncker & Humboldt 1988) 50. 80

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authoritatively on the concrete meaning of what is true and right? Truth-​ claims and commitments themselves cannot decide because it is competing interpretations about truth that produce the state of nature in the first place. Reason recognizes that plural ideals of public order cannot coexist in a single territory. Schmitt thought that this was the lesson Hobbes learned from the Confessional Civil Wars.81 The adoption of “truth” as the basis of public order was a source of disorder. Lübbe argues that Schmitt believed this crucial change occurred when Hobbes shifted the foundation of public order from “truth” to the authority to interpret it publicly.82 Reason could nevertheless recognize peace as a value all can agree on, Schmitt argues. So, in a state of nature, peace becomes the highest good and the first law of reason is to seek peace.83 And this law of nature is “scientific,” Schmitt thought, because its justification does not derive from any substantive truth-​claim. It is not a normative claim about which public order is just. It is a precondition for any public order whatsoever, “just” or “unjust.” The state could not be justified by politicized religious commitments because those commitments were the source of its collapse. The justification for the state had to come from instrumental or hypothetical reasoning:  if one wants to realize public order, something he thinks all are motivated to achieve, then one must surrender the right to interpret. It is only afterwards, after overcoming the problem of the insecurity of the state of nature and the existential conflicts it allows, that non-​political questions can even be asked. In this sense, what distinguishes the scientific natural law is its focus on formal conditions for public order rather than the correct content of public order. So, Schmitt argued, this spark of reason leads individuals to collectively cede their right to interpret to a sovereign authority, which they authorize to interpret the concrete meaning of their existential commitments.84 Reasonability means the state theorized by scientific natural law is not the product of an actual contract, even tacitly, but a hypothetical contract. It is a dictate of reason. Schmitt called the state an imperium rationis—​the rule of reason.85 Schmitt likened the authorization of the state by the multitude to a chemical reaction: the “energy” of individuated atoms is “consumed” as they unite to form “a people.”86 The state obtains “unlimited and irrevocable” authority in the process.87 State authority overcomes the chaos naturally  Loughlin, Foundations of Public Law 68.

81

 Lübbe 431.

82

  Schmitt, “Thomas Hobbes/​Baruch Spinoza (1919)” 12ff; Schmitt, “Die vollendete Reformation” 51 Der totale Staat bei Thomas Hobbes. 83

  Loughlin, “Politonomy” 4.

84

 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien 122.

85

  Schmitt, “Thomas Hobbes/​Baruch Spinoza (1919)” 16; Schmitt, Der totale Staat bei Thomas Hobbes.

86

  Schmitt, “Thomas Hobbes/​Baruch Spinoza (1919)”15.

87

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resulting from human nature—​conviction, perspectivism, and the right to interpret—​because its political decisions bind its subjects by imputing them to its subjects, the legal authors of its decisions.88 Hobbes’ maxim auctoritas non veritas facit legem sits at the center of Schmitt’s state theory. Schmitt argued that the state as constrained by the need to satisfy the dual demands of concretizing a neutralizing status (the political) and guaranteeing security (peace).89 As discussed in Chapter 2, a state requires both to be legitimate and to endure over time. Peace cannot be had without a shared commitment to that political status, which requires an authoritative representation of the community’s political status.90 He conceived of the state as a power that actualizes a status and guarantees that status and its adherents within a given territory. But he also conceived of the state as a supreme judge, who decides the concrete meaning of that status to prevent conflicts arising over the ambiguities of “mere words.” a.  Indirect and direct powers The real capacity to actualize or concretize a political status is extremely important to Schmitt’s account of the state. Schmitt seized on a distinction Hobbes makes between “direct” and “indirect” power in Chapter  42 of Leviathan. He expressed this through the fourth axis of his Hobbes-​ Crystal: “potestas directa, non indirecta,” discussed in Chapter 2. For Hobbes, and for Schmitt, both direct and indirect powers claim the right to interpret truth and right and make it actual.91 Besides subjects’ rational authorization, what distinguishes the state from other claimants to the authority to interpret is that these claimants may lack power of their own and are forced to rely on “indirect” methods to concretize their commitments as a political status. Indirect powers claim the authority to interpret, to command and enforce what is right.92 The basis for this claim to authority is not generated by the reasoning process that the scientific natural law tradition relies on. It is instead because the indirect power claims some sort of unmediated access to truth and right. The indirect power’s authority to interpret is bestowed from above. An indirect power does not possess the capacity to realize its   Renato Cristi, “Carl Schmitt on Sovereignty and Constituent Power” in David Dyzenhaus (ed), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 193. 88

89

 Schmitt, Political Theology 33.

90

 Schmitt, Dictatorship 16–​17; Cf. Loughlin, Foundations of Public Law 105, 144–​5.

91

  Cf. Thomas Hobbes, Leviathan (Cambridge University Press 1996) 395.

92

  Schmitt, “Völkerrechtliche Neutralität und völkische Totalität” 295–​6; Cf. Hobbes 394–​5.

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interpretations on its own. It cannot legislate directly. Instead, it only encourages others to actualize and enforce its interpretation. And it does so independently of the direct power of the state. For Schmitt, Weimar’s total movements and the “universalistic claims” of the “Geneva Establishment” and the Soviet-​ dominated Comintern were the twentieth-​century analogues of Hobbes’ Papists, Anglicans, and Presbyterians.93 Each indirect power’s insistence on its right to interpret exacerbated the crisis in Weimar’s authority by turning public opinion against the state. Aided by the mechanization of Weimar, they challenged the right of the Weimar state and constitution to decide independently and sought to impose the “truth” and “right” they possessed. Indirect powers’ claims to the right to interpret public truth and right authoritatively for Weimar was, Schmitt argued, the same phenomenon Hobbes identified as the cause of the war of all against all. Multiple interpretations of law place subjects in a dilemma where they do not know whose law to obey when those laws conflict. Schmitt agreed with Hobbes: men cannot serve two masters. The legal and political pluralism caused by indirect powers marks a return to the state of nature. According to Schmitt, the state as a direct power was the sole entity capable of representing a political status concretely (i.e. by issuing laws, deciding on their concrete application, and enforcing them) and, by guaranteeing its constituents physical security, satisfying both the first law of reason and that intentional drive.94 Among other things, a direct power guarantees its subjects’ security. The state concretizes its interpretation of its political status, whose highest legal expression is the constitution, directly by “commanding” legal statutes.95 So the state realizes a status directly through formal legislation and the police and by providing clarity on that status it enables subjects to reliably predict the consequences for their actions. A direct power makes a juridical idea real. By placing the axiom auctoritas non veritas facit legem equidistant from the poles in his Hobbes-​Crystal of veritas (above) and material security (below), Schmitt strove to highlight how legitimate authority mediates and satisfies these two sometimes opposed “needs” of human nature. Given the emphasis on material security for valid authority, one can see why Schmitt thought that Hobbes’ state theory paved the way for the eventual disenchantment or neutralization of the state. Nevertheless, Schmitt thought that Hobbes

  Schmitt, “Völkerrechtliche Neutralität und völkische Totalität” 295.

93

  Cf. Schmitt, Der Begriff des Politischen 121; Schmitt, “Die vollendete Reformation” 66–​7; Schmitt, The Leviathan in the State Theory of Hobbes 33, 53, 59. 94

 Schmitt, Constitutional Theory 59ff.

95

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defended a state form that was “open” to transcendence, to truth, even if it was irreducible to it. For Hobbes, it was a foregone conclusion that the political order of the state, its confessio, would be Christian. Thus, according to Schmitt, Hobbes’ state rested on a politically enchanted foundation. From this example, Schmitt inferred that all states must represent some neutralizing status in order to generate peace and order.96 States must define what is political. Schmitt thought clarity over the political and political authority created a dual relationship of the state to its subjects. On non-​political questions, he saw the state as a neutral third. Here, the state authority acts as an impartial or disinterested judge. On political questions, however, he saw the state as a neutralizing third. On such questions, the state was neither disinterested nor impartial. To the contrary, he argued, the state authority must jealously defend its monopoly over the authority to interpret its political status, who its Friends and Enemies are, to continue to exist.97 b.  State neutrality Clarity over what is political, Schmitt believed, allows for a corresponding clarity in what is not political. As discussed in Chapter 2, Schmitt thought political homogeneity allows social heterogeneity. Both Hofmann and Maus argue that Schmitt sought to rejuvenate the nineteenth-​century distinction between state and society.98 Similarly, Kervegan argues Schmitt did not seek a totalitarian state, which did not recognize a non-​public sphere, but instead to clearly demarcate what was and what was not political—​and therefore what fell under the state’s authority.99 And Schmitt envisaged a withdrawal of the state from those non-​political spheres of society.100 In effect, he saw this distinction in authority as enabling the liberalization of those non-​political spheres. In this way, Schmitt not only understood state authority and social liberties to be compatible but he even saw political authority as a prerequisite for social liberty. 96  Schmitt, Der Begriff des Politischen 122; Cf. Cristi, Carl Schmitt and Authoritarian Liberalism 172; Scheuerman 104; Galli 653.

  Hofmann XXII–​XXIII.

97

  Ibid 122; Maus 153; see Carl Schmitt, Der Hüter der Verfassung (4th edn, Duncker & Humblot 1931) 78–​80; Schmitt, The Concept of the Political 22, 25. 98

 Kervegan 377.

99

  Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 90, 92; Schmitt, “Weiterentwicklung des totalen Staats in Deutschland” 186–​7; Carl Schmitt, “Strong State and Sound Economy” in Renato Cristi (ed), Carl Schmitt and Authoritarian Liberalism (University of Wales Press 1932) 217; Schmitt, “Ethic of State and Pluralistic State” 201–​2; Cf. Loughlin, Foundations of Public Law 70; Cristi, Carl Schmitt and Authoritarian Liberalism 19, 31. 100

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The state’s disinterest in non-​political spheres constitutes it as a different sort of authority and, as such, the state plays an important role in civil society. Its disinterest allows it to mediate social disputes like a judge in private law. The state hears out and decides on disputes among Friends. Schmitt thought that because disputants remain within a single political status, in agreement essentially on the rules of the game and their commitments, even those who lose out in the state’s judicial decisions will nonetheless accept the broader legitimacy of the public order. Schmitt broke state neutrality down into four categories:101 1. Neutrality in the sense of objectivity and impartiality [Sachlichkeit] on the

basis of a recognized norm. This is the neutrality of the judge insofar as he decides on the basis of a recognized law [Gesetz] whose contents are determinable. The tie to the law allows the judge to have both objectivity and relative autonomy from other aspects of the will of the state (i.e. when it is expressed through means besides statutory regulation); this neutrality indeed comes to a decision, just not a political decision. 2. Neutrality on the basis of unegoistic-​uninterested expertise [Sachkunde]. This is the neutrality of the expert evaluator and counselor, the expert observer, insofar as it is not an interested representative or exponent of the pluralistic system, this neutrality is based on the authority of the mediator and conciliator (unless it falls under the third type). 3. Neutrality as an expression of the unity and totality that incorporates all

opposed groups, and therefore the unity and totality that relativizes all oppositions within itself. This is the neutrality of the state decision on domestic political oppositions, against the fragmentation and division of the state into political parties and particular interests, if the decision brings the interest of the state’s totality to bear. 4. Neutrality of the foreigner, standing completely outside an issue, who if neces-

sary effects the decision and therefore unity from without as a third party. This is the objectivity of the protector opposed to its protectorate state and its domestic political oppositions, of the conqueror towards the various groups in a colony of the British towards Hindus and Muslims in India, of Pilate (quid est veritas?) toward the religious controversies of the Jews.

 Schmitt, Der Hüter der Verfassung 114–​15; Reprinted as Carl Schmitt, “Übersicht über die verschiedenen Bedeutungen und Funktionen des Begriffes der innerpolitischen Neutralität des Staates” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles 1923–​1939 (Duncker & Humblot 1988). 101

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The first, second, and fourth types of neutrality all conceive of the state as a neutral or disinterested third on non-​political matters: the state was neutral because it was disinterested in the matter and that disinterest allowed it to act as a judge. The state’s rulings were accepted as legitimate because of its agnosticism and social value-​neutrality.102 As a neutral third, the state really was merely mechanical. c. Neutralizing state Schmitt had two aims in demarcating the state and society. First, as described above, he was interested in delineating an apolitical space, where the state had no political authority. Second, he wanted to define the meaning of the state’s authority on political matters. Huber describes how Schmitt saw two possibilities for neutrality.103 When a state acted as a neutral third, it offered no values of its own. In this case, the state was agnostic toward the content of the values and goals of actors in civil society, as long as they were peaceful. But the state could also serve as a neutralizing force by transcending the politicized pluralism in society as a higher neutralizing third. This latter possibility is expressed by the third type of neutrality above. In this latter case, the state limited value-​pluralism. These two possibilities corresponded to Schmitt’s concepts of the quantitatively and qualitatively total states. Kervegan argues how, although the state can relativize disputes by excluding them from its jurisdiction, Schmitt also described cases where the state must intervene not as a neutral third but as a neutralizing or higher third.104 The state cannot be totally value-​neutral or adopt an agnostic stance toward all commitments. Regarding its political status, Schmitt thought it must be interested because without that authoritative status, society will self-​organize politically and fill that void.105 In the case of liberal democratic states like Weimar, the totalization of the value-​neutrality of the state is the totalization of its state form, its democratic procedures, over its political content.106 Schmitt thought this relationship cannot be maintained over time. An authentic state must adopt an interested and neutralizing perspective. The third form of neutrality in the above typology articulates this difference. Here, Schmitt clearly stood within the nineteenth-​century German tradition of state theory, as some have emphasized. In his analysis, Bhuta writes  Cristi, Carl Schmitt and Authoritarian Liberalism 189–​90.

102

  Huber 15–​17.

103

 Kervegan 378.

104

  Carl Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre ( J. C. B. Mohr (Paul Siebeck) 1930) 20–​1. 105

 Ibid 18ff.

106

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127

that this tradition understands the state to be “a comprehensive unity of social life and an order of domination authorized to guarantee the moral relations of this social order.”107 Indeed, Schmitt saw the state as the guarantor of the unity of its order, and authorized to act as a “higher third” vis-​à-​vis its subjects. It embodied or represented their political status in order to depoliticize all other relationships within society. Schmitt wrote, the state is, by its nature, the status. In other words, it is a total status, which renders relative all other forms of status inside of itself. The state cannot recognize a status internal to its own that is inalterably prior to or superior to it, the state, and that, therefore, has a public law character with rights equal to the state.108

Schmitt believed an authentic state must continually concretize its status and neutralize political conflict.109 Here the state ceases to be merely disinterested, mechanical, or agnostic. It is instead interested, personal, and dogmatic. In “Absolutismus,” Schmitt described how Hegel first conceptualized the “Absolute State.”110 This Absolute State, Schmitt wrote, unites the opposed or antagonistic interests of society to overcome factionalism and generate genuine political homogeneity. And it publicly realizes the “Ethical Idea” in space and time.111 In other words, acting as a higher third, the state is the institution that concretizes the political. He also argued that Hegel was only partially correct to describe the state as “present god.” In fact, he thought, just as the sovereignty of the political must be represented, so too must the state be represented.112 Hobbes described the state as a mortal god. By introducing the qualification that the state is represented, Schmitt implied the state was an ideal—​just like the political was. As “represented god,” the state mediated between the abstract political status, whatever its content may be, and concrete reality. And it is the state as such that is a represented mortal god.113 Schmitt argued the state as a comprehensive status is distinct from state form and it is a mistake to confuse the two.114 He took care to distinguish the absolute authority   Bhuta 14, 16; Cristi, Carl Schmitt and Authoritarian Liberalism 18–​19, 46–​7, 71, 144–​5, 154ff; Kelly 93–​108; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Duke University Press 1997) 35–​43; Loughlin, Foundations of Public Law 213ff, 216ff; Loughlin, “Politonomy” 2, 3. 107

 Schmitt, Constitutional Theory 211 (his emphasis).

108

  Loughlin, “Politonomy” 4.

109

  Carl Schmitt, “Absolutismus” in Günter Maschke (ed), Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916–​1969 (Duncker & Humblot 1995) 98–​9. 110

  Cf. Loughlin, Foundations of Public Law.

111

 Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre 27; Cf. ibid 8.

112

  Ibid 6, 27; Schmitt, “Absolutismus” 98.

113

  Schmitt, “Absolutismus” 97ff; Schmitt, “Der bürgerliche Rechtsstaat” 46; Cf. Loughlin, Foundations of Public Law 231, 288–​9. 114

128

128 

• 

The Absolute State

and sovereignty of the state from the will expressed by its government or representative. Historically, he argued, this distinction was collapsed. So, for example, in its early stage of princely absolutism, the will of the prince coincided with the Absolute State. But with the separation of powers, the will of the state’s representative became distinct from the absolute nature of its political status.115 The separation of powers allows us to distinguish the absolutism of the state’s public legal order from the institutional power wielded by its representatives.116 Recognizing the distinction between state and state form led Schmitt to argue that the unconstrained expression of an unprincipled will is potentially tyrannical—​whether expressed monarchically or democratically. In this way, Schmitt argued, the Absolute State could and did align with the interests of nineteenth-​century liberals in undermining the power of the absolute monarch.117 Liberal absolutism, its commitment to basic individual liberties established as its authoritative political status, constrained the exercise of governmental power, particularly that of the monarch. For this reason, Schmitt argued the Absolute State was perfectly compatible with nineteenth-​century liberalism even if the absolute power of any one branch of government was not. Even as the state’s form was balanced against itself, its political status remained absolute. Notoriously, Schmitt once examined Italian fascism through the lens of his state theory in a book review he wrote in 1929. Although this is an alarming direction to take, it is nevertheless noteworthy because of how Schmitt framed the Italian state in Hegelian terms. The Italian fascist state, Schmitt wrote, restored the state’s authority by overcoming the influence of indirect powers, denying “invisible and irresponsible” social or private powers the ability to promote their own interests at the expense of others and at the expense of the whole.118 It reasserted a political status against the instability   Schmitt, “Absolutismus” 97.

115

 Ibid 98.

116

  In “Absolutismus,” Schmitt writes “Der Staats-​A. verbindet sich häufig mit scheinbar entgegengesetzten, liberalen Ideen u. Tendenzen, wie es überhaupt in steigendem Maß für das 19. Jahrh. charakteristisch wird, daß Zwang u.  Ausbeutung im Namen der Freiheit vor sich gehen. Die liberale Bewegung bes. bekämpfte zwar die absolute Monarchie, aber gleichzeitig unterwarf sie dem Staat Lebensgebiete, die ihm bisher fremd waren, um sie der Kirche zu entreißen: Erziehung u. Schule, Ehe u. Familie. Während man das Religiöse zur Privatsache machte u.  als etwas allzu Hohes, einer äußerlichen Regelung ganz Unzugängliches hinstellte, konnte sich in der prakt. Wirklichkeit der Staat aller sichtbaren Kundgebungen des Religiösen bemächtigen. So wurde im Endergebnis, infolge der Privatisierung aller geistigen u. moral. Werte, für die sichtbare äußere Wirklichkeit des sozialen Lebens der Staat zur höchsten Instanz. Obwohl der Liberalismus sonst den Staat in einen bewaffneten Diener der Gesellschaft verwandelt, der das freie Spiel der wirtsch. u. sozialen Kräfe, d. h. in Wirklichkeit die unkontrollierte Macht des Stärkeren, schützen soll, erscheinen im Kampf gegen die Kirche Liberale plötzlich als Verteidiger der Macht des Staats über Schule, Erziehung, Ehe u. Familie u. führen mit einem höchst inkonsequenten Pathos einen sog. Kulturkampf des Staats gegen die Kirche.” Ibid. 117

  Carl Schmitt, “Wesen und Werden des faschistischen Staates” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​Versailles (Duncker & Humblot 1988) 114; Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre 21, 23–​4. 118

 129

The Value of the State 

• 

129

caused by democratization. The virtue of the fascist state, according to Schmitt, was that it aimed to be a higher third (rather than merely a neutral third or an instrument of private powers and social movements) oriented by the common good. It was capable of resisting and overcoming the otherwise “uncontrollable mass desires and resentment” that modern mass democracy produces and which led factions to attempt to impose “radical” decisions, destabilizing state and society.119 What he seems to admire about Italian fascism is its “Gentilean” Hegelian qualities: how the state overcomes and depoliticizes the (potentially) political antitheses in society, uniting it into a political whole. Schmitt was interested in it in 1927 because it purported to act as a Hegelian “higher third” and it is this theme that resonates throughout Schmitt’s review. Schmitt’s embrace of this Hegelian-​influenced organic approach to the state is at its clearest in his 1914 Der Wert des Staates. There, he focused on how individual egoism upsets the state’s order.120 He argued it was a mistake to believe that freedom consisted in arbitrary willing. Freedom consisted in the exercise of reason over passion. Unchecked individual egoism and particularism could undermine the rule of reason. The state’s role was to harmonize individuals’ ends so that they could become the rational beings they actually are and realize their full potential.121 Just as Schmitt warned of the consequences of arbitrary individual wills for order and peace, so too does he deny the state aimed at mere procedural-​mechanical enforcement of positive law.122 Even in 1914, Schmitt was emphatic that the state was not merely an extension of positive law. He argues the state’s role is to realize Recht in the world. Recht by itself is powerless. The state, however, can bridge the separation between facts and norms. Hofmann argues that for Schmitt the state is the medium through which abstract Recht becomes positive, through which the (relatively) rational becomes real.123 Similarly, Lindahl puts Schmitt’s argument succinctly, writing that “the state is anterior to positive law as the concrete order—​the political unity—​which enacts or posits a constitution in the legal sense of the term: a constitutional law.”124 In his words, Schmitt wrote [the state] is derived from Recht and its essence seen in a particular relation to Recht . . . From the opposition of the norm and the real empirical world follows the position of the state as a bridge point from one world to another. In

  Schmitt, “Wesen und Werden des faschistischen Staates” 111, 112.

119

  Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Duncker & Humblot GmbH 2004) 88–​9, 93, 105. 120

  Ibid 94, 106.

121

 Ibid 54.

122

  Hofmann 54, 577; Cf. Maus 56, 96.

123

  Hans Lindahl, “Law as Concrete Order: Schmitt and the Problem of Collective Freedom” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 42. 124

130

130 

• 

The Absolute State

it, as a construction point, Recht as pure concept [Gedanke] turns into right as worldly phenomenon. The state is thus the legal entity [Rechtsgebilde], whose meaning consists solely in the task of realizing Recht, bringing about a condition [Zustand] in the external world, which as far as possible corresponds to the requirements that can themselves be deduced from the concepts of Recht [Rechtsgedanken] for the restraint of individuals and the establishment [Einrichtung] of that external world.125

In this early work, Schmitt argued the state is the only entity capable of legitimately bridging the gap between right and fact, in the process overcoming order-​destroying individual passion and egoism.126 The state could not be understood exclusively in terms of right or power but combined both.127 Its legitimacy is tied to that transcendent political identity: a state must concretely represent an abstract normative order that its constituents recognize as such, even if its authority to concretely interpret that order in law is absolute.128 For Schmitt, the state does what Recht cannot do on its own: it makes Recht real.129 This early argument is little different than later arguments where Schmitt depicted how the state presupposes and concretizes the political, its decisive status, except that Recht is replaced by “the political.”130 In his 1930 evaluation of Preuß’ state theory, Schmitt enumerated the different meanings “organic” could have for state theory. They are: 1. Non-​ mechanical; 2.  Not from outside; 3.  Not from above; 4.  Not oppressive; 5. Neither atomistic nor individualistic; 6. Not particular; and 7. In opposition to all activity and consciousness.131 Schmitt’s own state theory clearly adopted some of these qualities.132 He theorized the state as holistic or embodying a sort of general will, brought about by acting as that higher third, and he also theorized the state as an entity that overcame the particularistic or atomizing traits of its subjects, at least as those traits bear on public order. Of course, he also departed from that organic theory in some ways. He rejected the idea that the state is constructed from the bottom up or immanently; Schmitt’s state is authoritative. And his state is decisive rather than agnostic on these political affairs.  Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen 56 (Schmitt’s emphasis).

125

  Ibid 10, 42, 50, 56, 81; Cf. Schmitt, Die Tyrannei der Werte 10, 56, 81.

126

  Cf. Hofmann 51, 69.

127

 Schmitt, Dictatorship 17–​18; Schmitt, Constitutional Theory 248.

128

 Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen 59, 62.

129

  See Loughlin, Foundations of Public Law 187ff, 205–​7; Heimes 44; see also Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 149; Carl Schmitt, “Recht und Macht” in Ernst Hüsmert and Gerd Giesler (eds), Die Militärzeit 1915 bis 1919 Tagebuch February bis Dezember 1915, Aufsätze und Materialien (Akademie Verlag GmbH 2005). 130

 Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre 11–​12.

131

  Reinhard Mehring, Carl Schmitt: A Biography (Polity 2014) 222–​4.

132

 13

The Value of the State 

• 

131

Schmitt opposed the organic state to the mechanical state. He argues the organic state overcomes the egoistic tendencies that naturally occur when society is left to “self-​organize.”133 The state overcomes the centrifugal forces within society by maintaining and restoring (through “Bildung” or civic education) the esprit de la nation, the Geist of Hegel.134 The power of the state to realize a political status is too important to be left to the momentary will of agonistically competing factions.135 Objective reason cannot be reduced to the outcome of whichever faction in society happens to be the most popular at a given moment. Bhuta rightly argues that the state alone produces the “higher value (peace, order, the good, the constitution, etc.), a jus of lex, to which individuals must align themselves (their ‘duty towards the state’) if a concrete order is to be maintained or created.”136 The state was a precondition for individual rights. Without the state holding back the state of nature, individuals would not have the juridical status on which they could base their rights-​claims.137 Individuals can claim rights only because the state guarantees a valid and efficacious legal order. So Schmitt did not deny that rights can be granted to subjects—​they just cannot be granted in such a way that they could be used to undermine the public order itself. Despite these undertones, Schmitt did not see his state theory as Hegelian. He attributed the core of his state theory to Hobbes. This self-​conception is clear from his 1963 Remarks to The Concept of the Political, where he wrote, Good or evil, in the sense of normal or fallen, is contextual for Hobbes: the state of (or better, condition of ) nature is an abnormal situation. This abnormal situation is normalized first in the state, i.e. first attained through political unity. The state is a kingdom of reason [Reich der Vernunft] (this formula originates in Hobbes and is not first found in Hegel), an imperium rationis (De Cive 10 §1), which transforms civil war into the peaceful coexistence of citizens. The abnormal is the “fallen situation,” civil war. In civil war, no one can conduct themselves normally.138

Hegel, Schmitt thought, only updated Hobbes’ state theory. Schmitt interpreted both thinkers to argue that the state alone established a normalized condition in which there could be right—​not to mention peace. By conceiving of the state in this way, Schmitt clearly inherited the nineteenth-​century German tradition of theorizing (and justifying) the state’s order-​generating and -​maintaining capacity, as Bhuta argues.139 Yet Schmitt made no definitive

 Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre 20.

133

  Ibid 22, 24.

134

  Schmitt, “Ethic of State and Pluralistic State” 198.

135

 Bhuta 36.

136

 Ibid 29.

137

 Schmitt, Der Begriff des Politischen 121; Cf. Cristi, Carl Schmitt and Authoritarian Liberalism 99.

138

 Bhuta 11.

139

132

132 

• 

The Absolute State

attempt to determine what the content of that rational status should be. His theory was designed intentionally to be adapted to many different possible political orders. d.  The giant man Schmitt argued that one of the great conceptual innovations of the sixteenth and seventeenth-​century jurisprudence was personification.140 It paved the way for Hobbes to conceive of the state as an artificial person born by its subjects’ authorization. This juristic fiction allowed for meaning and order to be coherently realized in a space at a time when the problem of political pluralism seemed insurmountable.141 By spelling out the “mythical totality” of Hobbes’ Leviathan, Schmitt hoped to restore this artificial person to solve the same problem of political pluralism and re-​enchant the state. The mechanical image of Leviathan discussed above constituted its foundation; the body dominated by physical causality and material considerations reflects the scientistic and technical Weltanschauung of the twentieth century. But it gives no answer to the most important questions: “what does order consist in?” and “who may decide?” According to Schmitt, the body could not survive without a soul. And Weimar’s collapse into civil war confirmed for Schmitt the validity of Hobbes’ vision. Schmitt unfortunately did not say enough about the nature of Leviathan’s “soul.” He wrote that the “gist” of Hobbes’ state theory is that as a totality it is an ensouled mechanism, an intellect intent on the machine.142 This combination, he wrote, is Hobbes’ artificial person: the giant man [magnus homo] constructed by human reason.143 Yet, like a natural person, a state judges and interprets reality in light of its transcendent truth, normalizing relations (by relativizing other points of antagonism) among its constituents. It bridges the worlds of facts and values. Schmitt understood the image of the huge man as the integration of the mechanical body and transcendental “soul.” It is a moral, public person.144 Yet, Schmitt argued, the state is also a mortal god. But he did not clarify how these two images are distinct exactly, sometimes equating the images of man and god and other times suggesting they differ.145  Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 144.

140

 Ibid 143ff.

141

 Schmitt, The Leviathan in the State Theory of Hobbes 32, 34, 37.

142

  Ibid 63; Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 143.

143

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 141–​2, 145–​6; Loughlin, Foundations of Public Law 192. 144

 Schmitt, The Leviathan in the State Theory of Hobbes 31–​2, 63, 65.

145

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The Value of the State 

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133

Soul (Above) Satisfies Transcendent Needs; Mediates/Represents Veritas State = (Relativizing) Status

Mortal God

The State Body (Below) Satisfies Material Needs State = Guarantor of Security and Positive Formal Law (protego ergo obligo)

Giant Machine

Figure 3.1 Diagram showing the soul animating the state

Schmitt wrote that the soul animating the state as mechanism is the sovereign-​representative person.146 That this “one sovereign person [is] brought about by representation” and can only be understood in the sense of Hobbes’ artificial representation.147 This is to say, as a juridical persona ficta. Yet this sovereign-​representative person holds absolute power to realize a juridical order concretely.148 The sovereign-​representative person holds all authority to interpret, standing at the center axis of Schmitt’s Hobbes-​Crystal.149 From this position, it animates the mechanical body.150 It is godlike because it has no material existence and because it embodies some conception of absolute truth.151 To act in the world is to be subject to decay and death.152 The state is like a person because it too, in Hobbes’ allegory, straddles both sides of the Fact/​Value divide. The state can have existential commitments and can act to realize them concretely. The relationship between these facets can be depicted according to Figure 3.1. Schmitt wrote that the myth of the commonwealth as huge man begins with Plato153 and that Hobbes uses Plato’s magnus homo and Job’s magnus Leviathan interchangeably.154 Plato too aimed at establishing the rule of reason in the world. Schmitt takes a substantial and important departure from

 Ibid 34.

146

  Ibid 32, 93.

147

  Ibid 58, Cf. 32, 38.

 Ibid 55.

148

149

 Ibid 44.

150

  Ibid 100, Cf. 83.

151

 Ibid 45, 74; Schmitt, The Concept of the Political 65; Schmitt, Der Begriff des Politischen 121–​3; Cf. Koselleck 32. 152

 Schmitt, The Leviathan in the State Theory of Hobbes 5.

153

 Ibid 19.

154

134

134 

• 

The Absolute State

this conception in his relativized idea of the political. Although he conceives of the state as more than a mechanism, its truth is a function of the people within it. Yet, Schmitt was unambiguous, any genuine state must commit to some truth, some reason. By maintaining its political status, the state would prevent other statuses or identities in society from politicizing.155 In so doing, the state can create a space for social pluralism and guarantees individual protections against both state and society. But, Schmitt cautioned, the state of nature is never absolutely overcome, it is only held back. It threatens both externally (when political differences occur through foreign relations) and internally (when they are determined in civil society).156 Because of its proximity to the state of nature, the state must jealously guard its political status. To Schmitt, this meant both actively asserting its interpretation of its political status as well as neutralizing social conflicts. By conceiving of the state as a “giant man,” as an entity that bridged facts and norms, Recht and Macht, Schmitt offered an alternative to the disenchanted positivist theory of the state. He believed his state theory asserted and sustained a unifying value, even if the re-​enchantment it offered was relative to its particular people.157 By theorizing legitimacy in this way, Schmitt presents a unique non-​contractarian justification of the state. And by avoiding justifying the state through a traditional contractarian account, Schmitt believed that he offered a way to reconcile political authority with bourgeois liberties and a distinctive solution to the Weimar crisis.

 Galli 364ff, 787ff.   156 Schmitt, Der Hüter der Verfassung 142.   157  Cf. Hofmann 73.

155

 135

•4• The Absolute Constitution

Although Schmitt intended to write a general theory of the state, he wound up writing a constitutional theory instead. But this was only a change in his focus. He believed state and constitution were deeply intertwined. In the opening two chapters of his Constitutional Theory (1928), Schmitt opposed the concepts of the Absolute Constitution and the Relative Constitution. This distinction parallels his distinction in state theory between the absolute and mechanical state. The same process of disenchantment that had corrupted the state and reduced it to its “mechanical” qualities was also “relativizing” the constitution. Constitutionally, this process meant abandoning any understanding of the constitution as having “super-​legal,” substantive normative qualities. Instead, the constitution had come to be conceived of as a series of positive statutes written into a document called “the constitution.” Because his state and constitutional theory are intertwined, Schmitt’s constitutional theory sheds light on his allegorical and at times quasi-​ mystical characterizations of the nature of the Absolute State. The Absolute Constitution, like Schmitt’s Absolute State, bridges an ideal of public order with concrete reality. It realizes a political status, a public existential identity. Ernst Forsthoff wrote in agreement with Schmitt that “naturally, the constitution is primarily a political and existential phenomenon.”1 Hofmann argues that Schmitt’s constitutional theory presupposes a political decision (in his narrow sense of the concept), and his Constitutional Theory and his The Concept of the Political are linked.2 Schönberger describes Schmitt’s constitution as “a people’s fundamental political decision about the nature of

  Reinhard Mußgnug, Dorothee Mußgnug, and Angela Reinthal (eds), Briefwechsel: Ernst Forsthoff—​Carl Schmitt (Akademie Verlag 2007) 194–​5; Cf. Frank Hertweck, Dimitrios Kisoudis, and Gerd Giesler (eds), “Solange das Imperium da ist”:  Carl Schmitt im Gespräch mit Klaus Figge und Dieter Groh 1971 (Duncker & Humblot 2010) 130. 1

  Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 128–​9. 2

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

136

136 

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The Absolute Constitution

its political existence.”3 Indeed, Schmitt believed a genuine constitution was more than the sum of positive legal statutes in the written constitution. He believed the constitution was the soul of a political community. It codified the political status that constitutes a community, its hard decision, and the resulting system of positive law. The prevailing interpretation of Schmitt’s constitution theory today focuses on the concept of the Positive Constitution, which specified the particular nature of the public order. Hofmann focuses on the contrast between the Positive and Relative Constitution, although he also suggests that half of Schmitt’s definition of the Absolute Constitution (its “concrete” sense) was affiliated with that Positive conception.4 Kennedy argues that “after setting out a typology of constitutional theories (absolute, relative, positive, and ideal), Schmitt moves to demonstrate that only the positive theory is a political science of the constitution and its laws.”5 Loughlin takes a different approach and argues that Schmitt opposes Absolute Constitution in its concrete (or existential) sense to Absolute Constitution in its normative (or ideal) sense.6 These interpretations all rightly point to Schmitt’s anti-​positivist conception of the constitution. But their focus on either the Positive Constitution or a part of the Absolute Constitution does not fully capture Schmitt’s constitutional theory. The Positive Constitution is, to be sure, an integral part of it. But this chapter moves beyond these readings. It analyzes how Schmitt described the statutory positivist conception of the constitution as a Relative Constitution. It then argues that, like with his state theory, Schmitt theorized an authentic constitution, the Absolute Constitution, as comprised of different functions or images. This chapter will also argue that Schmitt theorized the essence of the Absolute Constitution in both normative and concrete functions, something Loughlin suggests when he writes that the constitution too “denotes unity and totality.”7 This chapter analyzes Schmitt’s Absolute Constitution in three parts. It begins by examining Schmitt’s criticism of the Relativized Constitution. It then analyzes the six facets of his Absolute Constitution and looks at how they fit together as a whole. It concludes with a discussion of how Schmitt’s constitutional theory evolved into his later work on nomos. Nomos is not so much a novel concept for Schmitt but a continuation of his earlier work on state, constitution, and the political. It brings together core ideas Schmitt   Christoph Schönberger, “Werte als Gefahr für das Recht? Carl Schmitt und die Karlsruher Republik” in Gerd Giesler (ed), Die Tyrannei der Werte (Duncker & Humblot GmbH 2011) 79–​80. 3

4

 Hofmann 125ff.

5

  Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press 2004) 96.

6

  Martin Loughlin, Foundations of Public Law (Cambridge University Press 2010) 210ff.

7

 Ibid 211.

 137

Relative Constitution 

• 

137

had already developed even if it does so in a different way. While state, constitution, nomos, and the political are not exactly synonyms, they do overlap substantially.8 All serve to express different facets of what public order consists in.

1.  relative constitution ( constitutional

theory

§2)

Schmitt criticized Weimar statutory positivists for “relativizing” the constitution. Loughlin argues that Schmitt identified the Relative Constitution as the product of a modern tendency to conceive of the constitution as a written set of individual positive constitutional laws and statutes.9 They are constitutional laws because they were written into the document called “the constitution.” Constitutional relativization parallels his worries about the mechanization and disenchantment of the state. In both cases, the positive or material aspect was displacing the broader significance of the institution. Yet, although he criticized the totalization of the written constitution, he did not disagree that the written constitution was an essential facet of what a constitution genuinely was. The written constitution was, like the mechanized state, one facet of a greater whole. a.  Constitution as constitutional laws Schmitt argued that Constitutional Relativization erodes the concept of the constitution as higher law in two ways. First, it equalizes the status of all the articles of the constitution.10 For statutory positivists, Schmitt argued, all 181 Articles of the Weimar Constitution were conceived of as equal to one another because they were all within the written constitution. Schmitt repeatedly illustrated this point with the example of how, from this perspective, Article 129.3 (the right of a civil servant to access his papers) was constitutionally no different from Article 114 (the freedom of a person is inviolable) or Article 1 (The Reich is a republic).11 Each was subject to the same procedures for legal change and there was no objective legal hierarchy among 8   Martin Loughlin, “Politonomy” in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2015) 8–​9. 9   Martin Loughlin, Foundations of Public Law (Cambridge: Cambridge University Press, 2010), 210ff. Cf. Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 54–​5, 65–​6.

 Schmitt, Constitutional Theory 67.

10

  Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Michael Hoelzl and Graham Ward trs, Polity 2013) xxxiv(ff ); Schmitt, Constitutional Theory 80–​1; Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 43, 52, 79. Similarly, he argues, the positivistic orientation of the Relative Constitution cannot distinguish between norms and decrees. Carl Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” (2011) 18 Constellations 299, 319. 11

138

138 

• 

The Absolute Constitution

them. From Schmitt’s anti-​positivist perspective, a constitution may contain laws besides the fundamental laws of public order. When a constitution is understood in positivistic terms, however, these peripheral laws become formally indistinguishable from those parts of the constitution that actualize a community’s political status as law. The second way Relativization alters the meaning and significance of the constitution is by making constitutional law indistinct from non-​ constitutional law. The constitution has no qualities as higher law that make it substantively distinct from normal law. The only other difference is that constitutional law is oftentimes written in a document called “constitution.”12 Because the constitution is conceived of as a series of statutes, its components were subject to amendment just like any other statute. This relativized the constitution by exposing even the most fundamental aspects of public order to the legislator’s will, the will of the majority in democratic states. Any individual constitutional laws could be willed into or out of existence like any normal, non-​constitutional law. Schmitt recognized that a constitution is often more difficult to alter than ordinary positive laws because it is protected by a super-​or qualified majority amendment procedure. But he argues this constraint only introduces an element of mathematical arbitrariness. It offers no principled reason to make such a limitation (or to articulate what principles ought to be guiding constitutional decision-​making).13 By replacing the quality of a community’s political status with the quantity of the will of the greatest number of its subjects, Schmitt believed this “half-​measure” failed to realize its purpose of guaranteeing the continuity of the basic public order.14 Schmitt’s deeper concern was that, in conceiving of a constitution as only its positive statutes, Relativization paves the way for tyranny. In mass democracy, the tyranny of the majority. In the end, the basic substantive commitments of the constitutional order were functionally dependent on a legislative will. Should a party deeply hostile to the liberal-​democratic constitution obtain a super-​majority in the legislative branch, so much for those commitments. Super-​majority procedures could not guarantee the substance of the constitution any more than a simple majority procedure could. Schmitt also worried that this Relative Constitution could not serve as a source of unity because even the document itself offers no principled hierarchy among its constitutive statutes.15 Neither could it appeal to underlying principles of 12

 Schmitt, Constitutional Theory 73.

13

 Schmitt, Legality and Legitimacy 41; Schmitt, Constitutional Theory 70–​1.

14

 Schmitt, Legality and Legitimacy 42, 53–​4; Schmitt, Constitutional Theory 72–​3.

 Schmitt, Constitutional Theory 67; William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 64–​5. 15

 139

Relative Constitution 

• 

139

right or justice. As all the individual statutes are conceptually equivalent, the constitution defines no relativizing status but was instead, at best, a plurality of statuses. Korioth notes how Schmitt, like many others, had bought into Kirchheimer’s argument that the Weimar Constitution lacked a basic decision, which jeopardized its durability and continuity.16 Schmitt wrote that a Relativized Constitution cannot define and structure the fundamental public order of a political community because it is in the end just an arbitrary collection of positive statutes in principle alterable by a will. b.  The underlying status of the relativized constitution Although Weimar’s prevailing interpretation conceived of the constitution as a value-​neutral procedure, Schmitt argued that there was nevertheless an implied or tacit commitment that normative defined this Relative Constitution. It was a commitment to Equal Chance, the equal opportunity of any to compete to have their beliefs and worldviews enacted into public law. All must have the opportunity to compete for the right to legislate and impose their values as law across the territory. From this perspective, the state must remain neutral with regard to the content of the beliefs of political parties seeking office, “there are no unconstitutional goals” no matter how “revolutionary or reactionary, disruptive, hostile to the state.”17 The only basis for politically invalidating a party or belief would be if it obtained power through illegal means.18 The commitment to Equal Chance was actualized through the constitution’s amendment clause.19 As long as the scope of constitutional change was unlimited, the constitutional amendment procedure is the implicit core of the constitution. Its application trumped any other substantive commitments because they could simply be amended out of the constitution. The amendment procedure implicitly defined the underlying status of the public order as the will of the majority. Equal Chance acts as a value-​neutral second-​order commitment that regulates the competing first-​order values of different movements within a state. It is a procedure by which any first-​order commitment can be made into law. And through Article 76, any first-​order commitment can become part of the basic structure of the state. Equal Chance is therefore a dynamic principle.  Stefan Korioth, “Rettung oder Überwindung der Demokratie–​Die Weimarer Staatsrechtslehre im Verfassungsnotstand 1932/​33” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 506. 16

 Schmitt, Legality and Legitimacy 48–​9.

17

  Cf. Otto Kirchheimer, “Legality and Legitimacy” in William E. Scheuerman (ed), The Rule of Law under Siege (University of California Press 1996) 52ff. 18

 Schmitt, Dictatorship xxxiv(ff.).

19

140

140 

• 

The Absolute Constitution

As a mechanism for legal change, Schmitt argued Equal Chance did not produce any definitive status let alone guarantee its stability over time. And as a commitment to dynamism, determined democratically, Equal Chance has a further consequence that Schmitt found troubling: the only basis to determine juridical “right” was the fact of a numerically superior will. When the principle of Equal Chance is the fundamental commitment of a public order, whichever values and commitments are willed by more people become legitimate. There was nothing to prevent the dynamism of Equal Chance from becoming cannibalistic. A majority could “legitimately” use the amendment process to abrogate the laws governing the amendment process and replace Equal Chance with some other substantive commitment. For these reasons, Schmitt thought Equal Chance could not succeed in creating a status or an enduring political order. When interpreted as the underlying commitment of the constitution, Equal Chance led to “system suicide.”20 Schmitt argued that, if a constitution is to create a civil status, it must be based on some substantive first-​order commitment, some thicker conception of what right is than dynamic will. He wrote that “the idea of a written constitution must consistently adhere to the broader idea of a closed constitutional codification and to an absolute concept of the constitution.”21 The written constitution is only a part of what the constitution is. Like with the mechanical state, to totalize this one facet of the constitution risked undermining the constitution’s essence and value.

2.  the absolute constitution ( constitutional theory §1) Schmitt theorized the constitution as greater than its written form. In its Absolute sense, he argued, the constitution articulates the basic status of a political community and was the first legislative act in realizing that status at the level of public order.22 a.  Constitution as status The first chapter of Schmitt’s Constitutional Theory, “§1. Absolute Concept of the Constitution,” offers one of Schmitt’s clearest descriptions about the political role the constitution plays. Like the state, Schmitt conceived of the constitution as multifaceted in its authentic Absolute sense. He theorized six distinct but related facets of the Absolute Constitution, by dividing the concept into two broad types, its concrete sense (I) and its normative sense 20

 Schmitt, Legality and Legitimacy 48, 58.   21 Schmitt, Constitutional Theory 70.

 Loughlin, Foundations of Public Law 210.

22

 14

Absolute Constitution (Constitutional Theory §1) 

I. Concrete Sense Concrete manner of existence of a political unity

Absolute Concept of the Constitution (as a whole/unity) II. Normative Sense A Closed System of Higher and Ultimate Norms

• 

141

1. State is Constitution: Constitution is some status of unity and order that possesses a specific and soul ; the existential core of the political community. 2. Constitution is State Form: Some Type of State (e.g. democracy, republic, monarchy). 3. Constitution is Dynamic Integration: The process by which (atomistic) individuals are integrated/ united into a political community; perceiving the unity's end or purpose as their own.

1. Constitution is Command: A Grundnorm incorporating a legal order into a unity; State (and subordinate concepts/institutions) exhausted by constitution. 2. Constitution is Will of the Constituting Power: The normative validity of the will of the constitutionmaking power, its existential qualities, are inherited by the constitution itself. 3. Constitution is Codification: The explicit, written codification of the principles of unity and the concrete manner of existence.

Figure 4.1 Typology of the absolute constitution

(II) and then subdividing these two types each into three subtypes (1–​3). This typology breaks down according to Figure 4.1. Schmitt argued that all six definitions share a conception of the constitution as “expressing a (real or reflective) whole.”23 As a political phenomenon spanning a system of higher (and transcendent) norms and an actual concrete existential order, he conceived of the Absolute Constitution as both a concrete and normative phenomenon.24 In definition II.3, Schmitt defined the Absolute Constitution as the written constitution that codifies the condition of unity in positive law statutes. Clearly, he did not think positive laws in the written constitution were opposed to an authentic constitution.25 Only when the written constitution was totalized did it Relativize the constitution. Loughlin analyzes the relationship between written and Absolute Constitution Schmitt theorized.26 First, he argues, the written constitution cannot be understood apart from the political will that establishes it—​the constituting power of the will of “the people” as a political-​existential unity (II.2). Second, the validity of the written constitution presupposes and rests on the more substantive facets of the Absolute Constitution. In other words, and third, the written constitution rests atop the political status of the community—​how it coheres with that status. Schmitt wrote this relationship  Schmitt, Constitutional Theory 59.

23

  Thus, Kelsen is not wholly wrong in defining the constitution as sovereign and focusing on it as a systemic normative unity. Kelsen’s mistake is to totalize this one-​sided depiction of the Absolute Constitution and close it off from the other facets of what the constitution is and what function it performs. 24

 Schmitt, Constitutional Theory 65.

25

26

 Loughlin, Foundations of Public Law 215.

142

142 

• 

The Absolute Constitution

is sometimes expressed in the extra-​legal aspects of the constitution, such as the preamble.27 Loughlin adds that this theoretical relationship raised two implications for constitutional practice in Schmitt’s theory.28 First, constitutional statutes can be suspended when their practice becomes incoherent with the underlying Absolute Constitution. Second, there are implied limits to constitutional amendment. Constitutional amendments that conflict with the underlying political status are unconstitutional in this Absolute sense, even if they are formally consistent with the written constitution. What unites both cases is that the positive statutes of the written constitution legally represent and are subordinate to the commitments of the constitution. The term “Absolute” had a particular value for Schmitt. Just like the “Absolute” State, the “Absolute” Constitution concretizes the unifying status of the political community. It defines the qualities by which a multitude becomes more than the sum of its parts. In the background of both Schmitt’s Absolute State and Constitution is the concept of the political. He defined both the political and the Absolute Constitution as the status or “collective condition” of the political community. Both define the core existential interests of a political community. But there are differences between the political and the Absolute Constitution. As Chapter 2 discussed, the political has no necessary relationship to the state:  politicization can occur in substate political movements. Schmitt theorized the constitution, on the other hand, as the expression of state form and public order.29 The constitution codifies the state’s political status. He wrote, citing Isocrates, that the constitution as a status of unity and order is the soul animating the state (I.1).30 Not only does the constitution fix a state’s ratio status, Schmitt argued the Absolute Constitution also defines its state form: for example as a monarchy, aristocracy, democracy, or status mixtus (I.2)—​the institutions that govern “normalized” relations.31 In other words, the Absolute Constitution determines the type of regime constituted. But the constituted powers of the state, the state form, are merely one facet of the constitution. And it is far from its most important effect. Above all, the status articulated by the Absolute Constitution exists prior to the state form.32 Schmitt also defined the Absolute Constitution in its concrete sense as a process of becoming—​dynamic emergence or integration (I.3), a definition  Schmitt, Constitutional Theory 80–​2, 111; Cf. Loughlin, Foundations of Public Law 323; Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) 121. 27

28

 Loughlin, Foundations of Public Law 215.

30

 Ibid 60.

 Ibid 61.

31

 Schmitt, Constitutional Theory 60–​1.

29

  Cf. Loughlin, Foundations of Public Law 214, 215.

32

 143

• 

Absolute Constitution (Constitutional Theory §1) 

143

of the constitution Schmitt associated with Rudolf Smend.33 Kervegan argues that the state and constitution can persist only as long as they are animated and sustained by the will and commitment of their citizens.34 Citizens do not emerge out of nowhere. It is unlikely that citizens who do not understand the normative commitments of a public order will be committed to them. The same anthropological pessimism that justified the state also justifies civic education to integrate citizens into a public order.35 Schmitt argued the Absolute Constitution is a process by which citizens or subjects come to identify themselves as such, as members of a political-​existential community. Dynamic emergence is about the importance of civic education for (literally) “constituting” citizens.36 The constitution as the dynamic emergence of the political unity is the incorporation of its living subjects into the state’s order. This facet of the Absolute Constitution can be clarified by Schmitt’s remarks on Identity and Representation from later in Constitutional Theory. It is through civic education that individuals within the community come to Identify with the Represented political status and understand its rationality. The process of dynamic integration teaches citizens the reason of a particular political status, fostering their identification with it. In other words, civic education overcomes the individuation of the multitude and recreates “the people” as a “politically existing entity capable of action.”37 The state must overcome the centrifugal and individuating forces of society with “Hegelian Geist” realized through education [Bildung].38 Political education helps constituents to understand why the status is legitimate.39 They become better able to transcend their particular selves and represent that political status in their decision-​making.40 Individuals learn to think as citizens. Schmitt identified the first facet of the normative or ideal sense of the Absolute Constitution (II.1) with the thought of Hans Kelsen. He wrote that, although the Absolute Constitution in its normative sense does “denote a  Schmitt, Constitutional Theory 61. Cf. Carl Schmitt and Rudolf Smend, “Auf der gefahrenvollen Straße des öffentlichen Rechts” Briefwechsel Carl Schmitt—​Rudolf Smend 1921–​1961 (Reinhard Mehring ed, Duncker & Humblot 2010). 33

 Jean-​François Kervegan, “Politik und Vernünftigkeit Anmerkungen zum Verhältnis zwischen Carl Schmitt und Hegel” in Helmut Quaritsch (ed), Complexio Oppositorum:  Über Carl Schmitt (Duncker & Humblot 1988) 379. 34

 Schmitt, Dictatorship 7.

35

  Cf. Loughlin, Foundations of Public Law 305–​10.

36

 Ibid 213.

37

  Carl Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre ( J. C. B. Mohr (Paul Siebeck) 1930) 22, 24. 38

  Karl Mannheim makes a similar argument with regard to his understanding of militant democracy. Karl Mannheim, Diagnosis of Our Time: Wartime Essays of a Sociologist (Routledge & Kegan Paul, Ltd. 1950). 39

  In his analysis of what makes democracy a legitimate state form, Schmitt refers to Aristotle’s distinction between politea and democracy:  only when the citizens express the volonté générale does the state cease to be the tyrannical domination of the private interests of the largest segment of society. Schmitt, Constitutional Theory 248; Cf. 275ff, 302–​3. 40

14

144 

• 

The Absolute Constitution

unity and totality,”41 it is so strictly as an “ought”—​as a normative imperative. In this case, Schmitt argued, the identity ‘state is constitution’ is inverted so that ‘constitution is state’—​meaning state is derivative of constitution. The state as a concrete existing condition ought to correspond to the “higher and ultimate” norms defined by the constitutional legal order. It represents an ideal of that community’s political status, which its citizens ought to approximate. He added that, although it is not inappropriate to describe the constitution as “sovereign” from this perspective it is misleading to do so exclusively—​as he thinks Kelsen does—​because it ignores the question of how to translate abstract commitments into concrete reality. In other words, by isolating “constitution” to its command sense and by rigidly adhering to the normative horn of the fact/​value divide, Kelsen erected a barrier between the constitution’s abstract-​normative existence and its concrete existence, when it should be bridging that divide.42 Both the Absolute Constitution and the political are the product of existential willing—​a decision by a “will” (even the will of an abstraction, like the German people) for a specific type and form of existence (II.2).43 Schmitt wrote that the constitution, in the Absolute sense, included a facet according to which the people as pouvoir constituant—​distinct from any post-​ constitutional constituted “people” brought to political consciousness—​bears political unity and literally constitutes the state and government through an act of will. Maus argues that with this definition Schmitt conceived of the constitution as a basic decision by the pouvoir constituant.44 The unconstituted people as a pouvoir constituant is one of the more difficult to clarify claims Schmitt raised because it immediately raises a question about its origins: the question of the “generative paradox” discussed in Chapter 5. A constitution unites a multitude of individuals into a principled unity. The paradox is that it presupposes its product. If “the people” is to identify with that represented unity, if a constitution is more than just an imposed commitment, then that people would have to exist before the act of constitution. But if this is the case, then it is unclear how a constitution actually unites that multitude. This generative paradox of the legitimate state and constitution ends where it begins:  with the “mysterious prior substantial equality of the people.”45 Schmitt solves this paradox with sovereign dictatorship. There are also overlaps among these six definitions of constitution. In I.1 and II.1, he referred to Aristotle in writing that the Absolute Constitution defines the end (telos) of that community. Schmitt argued in I.1 that “state is constitution,” meaning it is a concrete or factual condition (that the political community does correspond to it).46 In II.1, he argued “constitution is the 41

 Ibid 62.

 Ibid 64.

42

 Ibid 65.

43

 Loughlin, Foundations of Public Law 226.

45

44

 Maus 28.

 Schmitt, Constitutional Theory 59–​60.

46

 145

Absolute Constitution (Constitutional Theory §1) 

• 

145

state.” It is a normative ideal that the state aims to realize.47 Schmitt repeatedly argued that the Absolute Constitution is or defines the political “soul” and existential core of the community (I.1, II.1, II.2).48 As the existential core, both the political and the Absolute Constitution define the values without which the political community would cease to exist and therefore that must be preserved and defended at all costs.49 It articulates the meta-​juridical principle—​veritas or truth—​that is the foundation for and determination of the concrete laws of that community (II.1, II.2).50 He wrote that a government that adheres to its Absolute Constitution is one in which reason is sovereign, free from domination.51 All six facets of the Absolute Constitution tease out what Schmitt theorized the essence of a constitution to be and what it does to maintain a political community. There can be no political unity without a purpose (I.1). There can be no political unity without state form (I.2). There can be no political unity without educating individual subjects about the value of those commitments (I.3). There can be no political unity without a basic normative structure and harmony to its legal system (II.1). There can be no political unity without a decision, willed by a constituting power (II.2). And there can be no political unity without codifying its basic commitments and structure into positive law (II.3). b.  Constitution as decision: the Positive Constitution (Constitutional Theory §3) In addition to the distinction between Absolute and Relative Constitution, Schmitt also included the concepts Positive and Ideal in his constitutional typology. Positive and Ideal are extensions of his Absolute Constitution. Schmitt wrote that the Positive Constitution “adheres to” the concept of the Absolute Constitution.52 While the Absolute Constitution analyzes the formal unifying qualities of the constitution, the Positive Constitution is an analysis of a constitution’s content.53 Schmitt wrote—​echoing definition II.2 of the Absolute Constitution—​that the Positive Constitution is the “conscious decision” by a political unity for itself, for a concrete unified existence.54 This definition, Hofmann argues, also clearly reproduces core features of Schmitt’s concept of the political.55 The Positive Constitution articulates the content of a particular community’s decision on its political status. In his analysis of the Weimar Constitution, Schmitt described how the Positive Constitution of Weimar contained five decisions: to be (a) a democracy; (b) a republic; (c) a federated state, with   Ibid 62–​3.

  Ibid 60, 63, 64.

47

 Ibid 77.

52

48

  Hofmann 128–​9.

55

  Ibid 60, 62.

49

  Ibid 75, 77; Cf. Hofmann 134.

53

54

  Ibid 62–​5.

50

 Ibid 63.

51

 Schmitt, Constitutional Theory 75–​6.

146

146 

• 

The Absolute Constitution

distinct states [Länder] comprising it; (d) parliamentary-​representative in its state form; (e) a bourgeois Rechtsstaat.56 Under normal circumstances, these distinct decisions can coexist without problems. But each expresses a distinctive fundamental commitment, which can be in tension with one another. Although Schmitt argued Weimar’s Positive Constitution contained five decisions, he focused on two decisions in particular: the decision for democracy and the decision for a bourgeois Rechtsstaat. Only one of these two could be Weimar’s genuine political decision. This required a decision between the two as to which was more constitutive of the Weimar state and constitution. c.  Constitution politicized: the Ideal Constitution (Constitutional Theory §4) The Ideal Constitution complements the Positive Constitution. Schmitt wrote that “for political reasons, that which is designated as a ‘true’ or ‘genuine’ constitution often only corresponds to a particular ideal of the constitution.”57 This exclusionary attitude toward the content of a genuine constitution follows on Schmitt’s argument that the Positive Constitution, absent an existential decision, devolves into “linguistic manipulation.”58 To “Idealize” the constitution is to treat one’s own Positive constitutional commitments polemically. For example, Schmitt argued that neither the Bolshevist Ideal Constitution nor the bourgeois Rechtsstaat Ideal Constitution would recognize the fundamental commitments of the other’s constitution as a “genuine” or legitimate constitution. The Ideal Constitution is when the commitments of the Positive Constitution are conceived polemically, such that no other constitutional decision could be accepted as legitimate.

3. 

nomos basileus

Loughlin as well as Croce and Salvatore discuss Schmitt’s turn to concrete order thinking (or institutionalism) in late Weimar, which Schmitt developed in part through engagement with the thought of Maurice Hauriou.59 With this turn, Schmitt’s debts to Hegel and nineteenth-​century German jurisprudence became more pronounced.60 Hauriou argued that positive law was merely a “delineation of the contour” of the higher principles of the law. It 56

 Schmitt, Constitutional Theory 77–​8; Cf. Hofmann 127.

57

 Schmitt, Constitutional Theory 87 (my emphasis).

 Ibid 89.

58

 Loughlin, Foundations of Public Law 235; Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt (Routledge 2013) 13ff, 25ff. Kirchheimer links Schmitt’s “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” to Hauriou’s concept of superlégalité. See Otto Kirchheimer, “Legality and Legitimacy” in William E. Scheuerman (ed), The Rule of Law under Siege (University of California Press 1996) 53. 59

  Croce and Salvatore 39–​40, 51.

60

 147

Nomos Basileus 

• 

147

was derivative of a “prior” law that gave it “an absolute value.”61 The genuine fundamental principles of the state and constitution, i.e. something like the Absolute Constitution and the foundation of the entire public order, were this prior law.62 Because of its constitutive and foundational qualities, it contained a “super-​legal dignity.” Schmitt denied that there is anything mystical about Hauriou’s theory, and by implication his own theory.63 Its purpose is to create “duration, continuity, and reality” in the world.64 In other words, to create a (public) status concretely defined in terms of some fundamental principle or commitment. Schmitt argued that the written constitution was linked by its meta-​juridical sections to the Absolute Constitution. These meta-​juridical sections could be the preamble of the constitution or essential texts not directly part of the written constitution (e.g. Hauriou discusses the role the Declaration of the Rights of Man and the Citizen played for the Constitution of the Third Republic; similarly, the Declaration of Independence plays this role for The United States Constitution).65 Schmitt argued that “every constitution recognizes such fundamental ‘principles’ ” and that they are, “in principle, unalterable.”66 Schmitt used Hauriou’s theory of constitutional “superlégalité” to justify raising those fundamental principles of the Absolute Constitution, repackaged in 1934 as “concrete order” above every constituted power and institution of positive law, including the constitution’s amendment procedures. Möllers argues that Schmitt conceived of law in terms of those super-​legal principles of justice in order to further distinguish the constitution from positive constitutional laws.67 Schmitt intended to constrain parliament with a material reservation in its ability to alter the basic commitments of Weimar’s public order. Similarly, Loughlin and Croce and Salvatore describe how Schmitt relied on Hauriou to theorize concrete order as the actualization of a public order’s underlying status.68 Unlike “normativism,” which is mere impersonal legal rules, or “decisionism,” which is only concrete and personal (lacking any transcendental qualities), Schmitt’s concrete order seems to have qualities of both yet is reducible   Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (G. L. Ulmen tr, Telos Press Publishing 2003) 83 n7. 61

 Schmitt, Legality and Legitimacy 57.

62

  Carl Schmitt, On the Three Types of Juristic Thought ( Joseph W. Bendersky tr, Praeger Publishers 2004) 55.

63

 Martin Loughlin, “Nomos” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 86. 64

 Loughlin, Foundations of Public Law 323.

65

66

 Schmitt, Legality and Legitimacy 58.

  Christoph Möllers, “Das parlamentarische Gesetz als demokratische Entscheidungsform–​Ein Beitrag zur Institutionenwahrnehmung in der Weimarer Republik” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 462–​3. 67

  Loughlin, “Nomos” 86; Croce and Salvatore 95, 102–​8.

68

148

148 

• 

The Absolute Constitution

to neither.69 Like his earlier juridical thought, concrete order is defined as a status that bridges facts and values. And it justifies denying constituted powers the authority to alter or revolutionize the basic commitments of that higher legal order, even if the positive legal order has been compromised somehow.70 Schmitt wrote that even during emergencies, the fundamental commitments of the concrete order when conceived in these terms can continue to be in force as valid law.71 Loughlin argues that Schmitt’s theory of concrete order was an early expression of his work on the concept nomos.72 Schmitt’s two books that deal with the concept of nomos most directly, On the Three Types of Juristic Thought (1934) and The Nomos of the Earth (1950), recite a by now familiar attack on the “normativist” or statutory positivist conception of law. By adhering too strongly to the Fact/Value divide, it impoverishes the practice of public law and enables phenomena like legal revolution.73 Schmitt wrote that this theoretical movement “is nothing more than the arbitrary right of the stronger . . . the normative power of the factual—​an expression of the metamorphoses of is into ought, of actuality into law.”74 It reduces jurisprudence to merely the observation of facts, ignoring law’s distinctive ability to bridge facts and norms.75 In his nomos phase, Schmitt again described how the twentieth century combination of statutory positivism and mass democracy undermined public order and the aspirations of the rule of law.76 It shifted the perception of law into nothing more than the will of whichever party dominated the legislative branch at a given moment.77 The system of law became only a jumbled accumulation of the commands of that vacillating will.78 But this is no rule of law, Schmitt argues. Not only is law merely a reflection of the will of the men enacting it, it is as capricious as those men are. Jurisprudence becomes merely the analysis of the products of that shifting will. He worried that   Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 2005) 2–​3. 69

70

  Carl Schmitt, “The Legal World Revolution” (1987) 72 Telos 73, 75–​6.

71

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 83 n7.

72

  Loughlin, “Nomos” 86.

 Schmitt, On the Three Types of Juristic Thought 49; Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 69. 73

74

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 73.

75

  Carl Schmitt, “The Plight of European Jurisprudence” (1990) 83 Telos 35, 37.

  Ibid 48; Cf. Hans Kelsen, “State-​Form and World-​Outlook” in Ota Weinberger (ed), Essays in Legal and Moral Philosophy (Reidel Publishing Co. 1974); Hans Kelsen, “God and the State” in Ota Weinberger (ed), Essays in Legal and Moral Philosophy (Reidel Publishing Co. 1974). 76

77

  Schmitt, “The Plight of European Jurisprudence” 49, 54, 57.

78

  Ibid 44–​7, 53; Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 220.

 149

Nomos Basileus 

• 

149

this leads to the legality of revolution, which he called the legality that kills (légalité qui tue).79 In a different work, Schmitt reiterated his concern about the disenchanting effects of positivism, writing that juridical positivism rules all. This means recognition of the maxim that Recht is made simply by whomever de facto enforces it [daß das Recht von dem gesetz wird, der sich eben faktisch durchsetzt]. Juridical positivism is but the transformation of Recht into a positing of posits [eine Setzung von Setzungen]. At the same time, it is the recognition of the “normative power of the factual” . . . The transformation of Recht into legality was a consequence of positivism . . . Immediately following the transformation of Recht into legality was the transformation of legality into a weapon of civil war.80

Schmitt believed the statutory positivists’ “confused” understanding of the law could be traced back to the Sophists, who he argued “normativistically and positivistically reinterpreted” the original concept of nomos as mere statute and as mere convention—​in the end, mere power—​when they opposed nomos to the concept phusis.81 They restructured the original concept to fit their particular worldview:  that law merely reflected the interests of the powerful. In other words, they believed law is will. And Schmitt believed that twentieth-​century statutory positivism bore the imprint of Sophist legal philosophy. It just democratized that understanding: law was aggregated will. Schmitt does not, however, argue that the Sophists were entirely wrong to conceive of nomos as they did. Of course law involves will and power. Their mistake was to totalize one facet of what the law is. Space is appropriated for the sake of concretizing some public order.82 The Sophists, Schmitt thought, overlooked how, even while the act of appropriation requires power, it was also tied to an idea of right. Schmitt thought the pre-​Sophists had a richer understanding of public order. They conceived of public order as beginning with an act of appropriation. The appropriation of space is the precondition for the creation of any concrete order.83 As Lindahl argues, for Schmitt order always occurs within a space, a “where.”84 Without that space, right (Recht) could not exist   Schmitt, “The Plight of European Jurisprudence” 68.

79

 Carl Schmitt, “Das Problem der Legalität” in Verfassungsrechtlich Aufsätze aus den Jahren 1924–​1954 (Duncker & Humblot 2003) 446. 80

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 75; Loughlin, “Nomos” 71. 81

  Loughlin, “Nomos” 72.

82

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 45.

83

  Hans Lindahl, “Law as Concrete Order: Schmitt and the Problem of Collective Freedom” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 50. 84

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in the world. So power was not the antithesis of right but its complement. It was only through the exercise of power that right (however defined) could be actualized.85 As long as nomos is understood in its original “Pindarian” sense of the appropriation of some space for the sake of concretizing right, Schmitt thought it made sense to speak of the rule of law.86 This later work on nomos resembles Schmitt’s early work on the state.87 Yet here too, he theorized how the state and the constitution bridge abstract normative commitments (the “ought” of Recht) and concrete reality (the “is” of Macht).88 In both these periods, Schmitt emphasized that power brackets a space within which the state of war among individuals can cease.89 Nomos determines the concrete nature of the relationship of protection and obedience by guaranteeing the material-​existential minimum of security for all.90 It compels an otherwise recalcitrant and chaotic “nature” to normalize according to some idea of right order.91 It presupposes some idea of what right or true order consists in. So this act of appropriation implies a “hard” decision on how that appropriated space ought to be concretely ordered.92 Schmitt described nomos as the higher objective or “soul of the whole” that determines its political-​existential basis.93 Loughlin argues that, in this way, Schmitt saw “nomos [as] constitutive of the political.”94 Loughlin discusses how Schmitt described nomos in terms that have an affinity to Hegel’s theory of the state as the actualization of objective reason.95 Schmitt opposed nomos to forms of government that ultimately rely on will (both forms of “–​cracy” and “–​archy”).96 The objective reason of this juridical order is distinct from the form the state takes; nomos is irreducible to state form. This is significant because Schmitt conceived nomos—​the underlying “reason” of a concrete order—​as a counter-​concept to democracy—​rule 85

  Loughlin, “Politonomy” 2.

86

 Schmitt, On the Three Types of Juristic Thought 50–​1.

  Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Duncker & Humblot GmbH 2004). See the discussion in Chapter 3. 87

  Loughlin, “Nomos” 73, 85; Cf. Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen 22–​43.

88

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 51, 74, 140; Cf. Loughlin, “Politonomy” 8; Loughlin, “Nomos” 80, 84–​5. 89

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 48, 337.

90

  Loughlin, “Politonomy” 7.

91

  Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (University of Wales Press 1998) 162. 92

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 48, 69, 71, 327, 345.

93

  Loughlin, “Nomos” 9, 75; see Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 45, 47, 48, 69, 71, 73, 78, 327, 341, 345. 94

 Loughlin, Foundations of Public Law 87.

95

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 337–​8; Cf. Loughlin, “Nomos” 76. 96

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Absolute Constitution and Absolute State 

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151

by the people (the majority of the people).97 Unlike democracy or monarchy, Schmitt argued nomos is impersonal. It lacks the subjective orientation that governments have. This “Pindarian” rule of law is impersonal in the sense that, whatever body “rules” only represents that underlying concrete order.98 And the legitimacy of its rule comes from the quality of representation—​not the fact of having obtained the office of representative. Schmitt’s analysis of the concept nomos represents an evolution of his earlier work on the state and constitution and his response to their disenchantment. Like with the Absolute State and the Absolute Constitution, Schmitt theorized nomos in opposition to statutory positivism, writing “in its original sense, however, nomos is precisely the full immediacy of a legal power not mediated by laws; it is a constitutive historical event—​an act of legitimacy, whereby the legality of a mere law is made meaningful.”99 If positively enacted laws (nomoi) are theoretically separated from an underlying super-​ legal order (nomos), they can become opposed to that order and a force of political instability.100 Against statutory positivism, Schmitt argued that valid law was not will; positive law only mediated the “super-​legal” commitments of a public order.101 Schmitt aimed to situate positive law as a “material” derivation of the less tangible but more legitimate nomos.102

4.  absolute constitution and absolute state Schmitt theorized the state as the only institution capable of realizing the twin requirements for a civil status, for peace—​creating a realm of reason and guaranteeing the protection of its constituents. But the state could not be theorized apart from the constitution. Schmitt seems to have concluded that the constitution articulated the content of the state’s “soul” and was the source of its juridical order, including its positive laws. Schmitt recognized a written constitution and the statutes that comprised it were an important facet of the state and constitution. But it did not exhaust the meaning and purpose of the constitution. Schmitt was worried his Weimar contemporaries had lost sight of this. Theoretically, they had rationalized the state and constitution. And their theoretical presuppositions carried real practical consequences, as the politicization of Weimar’s civil society demonstrated.  Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 68, 72–​3, 337–​42.

97

 Ibid 338.

98

 Ibid 73.

99

  Loughlin, “Politonomy” 3.

100

 Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum 69ff.

101

  In his discussion of the positivization of the concept nomos and of law in general, Schmitt writes the “only corrective is the concept of legitimacy, which today is rather impotent” and directs readers to his 1932 Legality and Legitimacy. Ibid 71. 102

152

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The Absolute Constitution

Schmitt argued that the constitution was more than the sum of its positive law statutes. It reflected a community’s commitments defined by its political status. He theorized the constitution, like the state, was an extension of his argument defining the nature of the political. Like the Absolute State, the Absolute Constitution mediated abstract concepts of right and the factual world. The Absolute State concretized the political or neutralizing status of a community through public law—​articulated by the constitution and enforced or actualized by the state’s concrete institutions (its state form) and its coercive force. He conceived both state and constitution as straddling the world of facts and norms, concrete reality and abstract right, and saw them as a way to counteract the rationalization and disenchantment he saw undermining twentieth century states. And in doing so, he thought Weimar’s positive political identity could be determined and used to distinguish its Friends and Enemies.

 153

•5• The Guardian of the Constitution

Schmitt conceived of dictatorship as an institution bound to realize and defend the underlying political status of a political order when exceptional circumstances rendered normal institutions incapable of doing so. Although he conceived of dictatorship as operating outside the positive legal order of a political community, he did not think it was outside the law. A dictator represented the super-​legal status of that public order, using different methods in pursuit of the same end that the state and constitution pursued. Dictatorship seems to be one of the most alarming theoretical contributions Schmitt made. Scheuerman argues Schmitt’s theory of dictatorship is closely linked to a commitment to legal indeterminacy.1 He argues that Schmitt’s dictatorship can be read one of two ways. Either Schmitt makes a genuine attempt to theorize an institution necessary for the preservation and defense of republican states or, because indeterminacy actually pervades every legal syllogism, Schmitt instead exploits indeterminacy to mask a dictator’s total deformalization of the law and arbitrary decisionism. That is, Schmitt intends dictatorship to be a means to a permanent state of exception through the indeterminacy at the heart of all normalized law.2 Scheuerman argues the latter was actually the case, writing that even Schmitt’s earliest work on dictatorship was a theoretical means to dismantle the rule of law and contained the seeds of his 1933 embrace of fascism. McCormick offers a different perspective, arguing that the first possibility above is correct. Schmitt originally conceived of dictatorship as an institution necessary for the preservation and defense of republican states. But by 1923, with the publication of Political Theology, McCormick argues

1

  William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 30–​2.

2

 Ibid 33.

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

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Schmitt’s aims had changed and his theory of dictatorship was the foundation for his later embrace of fascism.3 Hans Kelsen suggested that Schmitt was naïve to seek to empower the Reichspräsident as much as he had and wrote that his argument about the guardian of the constitution was “permeated” by a “tendency to ignore the possibility of a violation of the constitution” (Kelsen in turn argued that it would be better to invest guardianship with the judiciary, an option Schmitt deeply opposed).4 Kelsen’s concerns about the violation of the constitution were of course informed by his methodological orientation, which ruled out the suspension of the positive law. The extra-​legal actions of a dictator were by definition a violation of the (positive) legal order. Better to simply leave that legal order intact. Similarly, Vinx criticizes Schmitt by arguing that states and legal systems can persist without the sort of extra-​legal representation and protection that Schmitt advocates.5 The argument that states and legal systems can “run by themselves” without external intervention is not entirely wrong. But it presupposes a politically stable state and society. Schmitt’s arguments were written in a time characterized by deep political instability precisely to address what happens when normal legal order breaks down and civil war threatens to break out. It was self-​evident that normal, positive legal institutions could not do their job. And there is no reason to suppose that legal order cannot similarly breakdown again in the future. Hofmann writes that Schmitt’s dictator, both in its commissarial and sovereign forms, is not an arbitrary despotic power.6 Instead, a dictator fulfills the same role that the state and constitution do: to realize a political status. What distinguished dictatorship according to Schmitt was that it kicked in as positive legal institutions became self-​destructive and maintaining them would be irrational—​or when they had simply ceased to exist altogether.7 A dictator was called upon to constitute or reconstitute public order. Hofmann argues that the potential for the abuse of the dictator’s power was not

  John P. McCormick, “The Dilemmas of Dictatorship:  Carl Schmitt and Constitutional Emergency Power” in David Dyzenhaus (ed), Law as Politics:  Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 217ff, 242. 3

  Hans Kelsen, “Who Ought to be the Guardian of the Constitution?” in Lars Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press 2015) 216. 4

  Lars Vinx, “Carl Schmitt’s Defense of Sovereignty” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 99. 5

  Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 57, 60–​2, 80–​1. 6

7

  Cf. ibid 60.

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Exceptional Order 

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155

Schmitt’s intention but the product of excessive faith in the good intentions and virtue of that authority.8 This chapter analyzes Schmitt’s theory of dictatorship. It argues that Schmitt did not intend to use dictatorship to create a state of permanent exception. Dictatorship was an essential component of that process of restoring normalcy to the Weimar state and maintaining its core constitutional commitments against the abuse or breakdown of its system of positive law and democratic procedures. It analyzes how Schmitt theorized dictatorship as an exceptional representative of the same commitments that defined the Absolute State and Absolute Constitution, serving as an emergency bulwark against their collapse.

1.  exceptional order: dictatorship as

defensor pacis

Schmitt argued that “commissarial” dictatorship was originally an essential institution of the state but it was tarnished as it became synonymous with tyranny, despotism, Caesarism, Bonapartism.9 Yet, Schmitt believed, dictatorship’s function was still essential for the preservation of republics. He sought to rehabilitate the concept. a.  The nineteenth century and the rationalization of the exception Dictatorship, Schmitt argued, originated as an essential institution of classical republics (i.e. Rome and the Italian City-​State Republics).10 Classical republics were governed by the formal rule of law. But occasionally an emergency created a situation where the positive law either could not function or was even a contributing factor to the breakdown of the legal order. In such cases, dictatorship was an institution that was authorized to violate positive law for the sake of maintaining the Republic’s basic political status and restoring a condition in which the rule of law could again be practiced normally. Schmitt argued that, as statutory positivism became predominant, law—​ especially the constitution—​was relativized, so only its positive form was recognized as valid. As an extension of this process of disenchantment, Dictatorship too was rationalized.11 Jurists circumscribed the acts of a dictator 8

 Ibid 70.

  Carl Schmitt, “Diktatur” in Günter Maschke (ed), Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916–​ 1969 (Duncker & Humblot 1995) 33; Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Michael Hoelzl and Graham Ward trs, Polity 2013) xxxvii–​xxxix. 9

  Schmitt, “Diktatur” 12, 33–​4; Carl Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” (2011) 18 Constellations 299, 319; Cf. Schmitt, Dictatorship 1–​7, esp. fn 2 (pp. 230–​1). 10

 Schmitt, Dictatorship 172ff, 179; Schmitt, “Diktatur” 34; Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 311–​12. 11

156

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The Guardian of the Constitution

within the framework of positive law. Kelsen, for example, argued in 1931 that dictatorship was incompatible with guarding the constitution because it suspended the positive law.12 In effect, positivists sought to normalize even constitutional emergencies by formalizing them and rendering them legally predictable. They found that the suspension or violation of constitutional statutes by a dictator could not be justified as legally valid according to their methodology.13 Dictatorship in its classical sense appeared to nineteenth and twentieth century jurists to be an anachronistic, irrational, and dangerous empowerment of a legally arbitrary will. It had become synonymous with tyranny. Schmitt argued that in the latter half of the nineteenth century, with the relative absence of internal enemies, states could get along with a rationalized form of dictatorship.14 In the absence of political instability, even the political status could remain implicit. But, Schmitt insisted, this situation was stable only because “powerful associations” were not actually attempting to subvert the public order.15 Even so, he added, a super-​legal form of dictatorship was smuggled back into public order with the concept “State of Siege” [Belagerungszustand].16 But things had changed by the twentieth century. The legal and political instabilities brought on by mass democracy required reinvigorating the classical conception of dictatorship. Weimar faced multiple “powerful associations” that were dedicated to its subversion. As society politicized and the commitment to Equal Chance became a subversive tool of extremist movements, the rationalized form of dictatorship became too passive to adequately respond to these changed circumstances. b.  The purpose of dictatorship Schmitt’s theory of dictatorship must be framed in terms of his criticism of statutory positivism and his theory of the Absolute State and Absolute Constitution. Even though he argued it may suspend positive law, he still conceived of dictatorship as bound by the super-​legal status of the Absolute State and Absolute Constitution. He thought breaches of the positive laws 12

 Kelsen 180.

13

  Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 315.

14

 Schmitt, Dictatorship 178.

 Ibid 179; Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 314. 15

  Schmitt, “Diktatur” 34; Schmitt, Dictatorship 170–​5. Caldwell notes that Schmitt argues there is a false identity between the two. Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Duke University Press 1997) 56. Schmitt’s point is more sophisticated, however. Because of the stigma attached to dictatorship by the nineteenth century and because of the relative success of normalizing even exceptional states, what was effectively dictatorship could be conceived of as a state of siege. 16

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Exceptional Order 

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in the written constitution by a dictator are nevertheless valid when done according to that logic. Dictatorship’s purpose too was to preserve the political commitments that positive laws also aim to preserve.17 Schmitt theorized dictatorship as a reactive institution that responds to emergencies threatening those underlying commitments when positive law cannot.18 In 1926, Schmitt defined dictatorship as the exercise of state power freed from legal constraints for the purpose of overcoming an abnormal condition [abnormen Zustands], especially war and insurrection. Thus, decisive for the concept of dictatorship is first the idea of a normal condition [normalen Zustands], which should be restored or brought about by the dictatorship, and furthermore the idea of certain legal constraints, which are abolished (suspended) in the interest of eliminating the abnormal condition.19

The “insurrection” Schmitt had in mind was that enabled or even caused by the positive legal order. His focus on the revolutionary potential of constitutional amendment laws illustrates why creating an exception to an otherwise legitimate legal order may be both legitimate and necessary. Positive law could be (and had been) turned into a tool for constitutional suicide. If it is being abused in this way, Schmitt argued, it seems irrational to continue conceiving of it as the basis of valid law. Statutory positivism left jurists—​and states—​with little recourse except “to go down with the ship.” But, Schmitt argued, it need not be this way. As undesirable as it may be to suspend the formal rule of law, authorizing a dictator may be the only way for the commitment to a particular public order to be preserved at all. Schmitt’s interpreters, including Scheuerman and McCormick, have drawn attention to his juxtaposition of abnormal and normal states, which define the purpose or end of dictatorship.20 McCormick also describes how Schmitt conceived of dictatorship in “functional” or “technical” terms.21 This is not all, however. Schmitt defined dictatorship as a purposively or instrumentally rational institution.22 Over and over, Schmitt described dictatorship   Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” xxxiv, 117–​18, 314–​15. 17

 Schmitt, Dictatorship 1, 8, 178–​9.

18

  Schmitt, “Diktatur” 33 (my translation).

19

  McCormick 217; Scheuerman 30–​1; George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt (Greenwood Press 1989) 31; Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (University of Wales Press 1998) 205. 20

  McCormick 218–​19, 221.

21

  Instrumental rationality can be defined as purposive, useful, and calculating reasoning, which takes for granted (or does not question) whatever purpose or end it is given. David M. Rasmussen, “Critical Theory and Philosophy” in David M. Rasmussen (ed), The Handbook of Critical Theory (Blackwell Publishers, Ltd. 1999) 22ff; Cf. Max Weber, Economy and Society: An Outline of Interpretive Sociology vol 1 (Guenther Roth and Claus Wittich eds, University of California Press 1978) 24. 22

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The Guardian of the Constitution

in these terms.23 Its end, a political status, is predetermined and the dictator selects the means appropriate to its realization. In the case of dictatorship, as opposed to positive legal order, that normal status no longer exists presently and must be restored.24 Schmitt argued that the institution of the commissar, out of which modern dictatorship emerged, was a precursor to the modern state. Tellingly, he traced its conceptual origins to papal representation.25 Modern political and legal administration, such as the bureaucracy, emerged through the rationalization of the late medieval and early modern commissar, whose administration was comparatively deformalized and personal.26 At that time, Schmitt argued, the concentrated power of the commissar was necessary because a formal or legal-​rational rule of law simply could not be realized. Normalizing the public order required an extraordinary public authority. In particular, the feudal Stände had different goals and power to rival the emerging state. Simply enacting positive laws would have had little effect when few recognized their validity or were willing to enforce them. Authorizing a political-​juridical institution with the power to rival them overcame that destabilizing political and legal pluralism. And, Schmitt argued, once commissioners had sufficiently normalized legal order by creating a hierarchical centralized administration and weakening the emerging state’s competitors, the commissar itself could be rationalized and turned into something resembling today’s state administration and bureaucracy.27 Dictatorship and the system of commissars filled a legal void in which more rationalized legal order could not exist. Schmitt also defines dictatorship by making the distinction between law [Recht] and the implementation of law [Rechtsverwirklichung], which Hofmann argues draws on Aristotle’s distinction between dikaion physikon and dikaion nomikon (natural justice and legal justice).28 Here too, the legitimacy of dictatorship consists in its mediation between abstract principles and their realization in the world—​similarly to how Schmitt theorized the legitimacy of the state and constitution. Schmitt’s theory of dictatorship did not legitimate arbitrary acts of will. The dictator’s implementation of a legal order is governed by a different set of norms [Rechtsverwirklichungsnormen] than those that govern an already existing legal order [Rechtsnormen].29 Because its end   See in particular Schmitt, Dictatorship xl, 1, 7, 8, 9, 117; Cf. Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 304; Schmitt, “Diktatur” 1. 23

  Cf. Schwab 31–​2; Scheuerman 30; Carlo Galli, La Genealogia della Politica: Carl Schmitt e la crisi del pensiero politico moderno (Il Mulino 1996) 273. 24

25

 Schmitt, Dictatorship 39 (esp. 34–​45).

  Ibid 20–​33, 140–​3.

26

 Schmitt, Dictatorship xlii, xlv; Cf. Cristi 205; Hofmann 57.

28

 Schmitt, Dictatorship xliii, 16–​17, 21, 99, 118.

29

  Galli 576–​7.

27

 159

The Absence of Order 

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159

is to realize the preconditions for normal legal order, Schmitt’s dictatorship may be best conceived of not so much as a suspension of a positive legal order as the recognition that concrete affairs are already so abnormal that the normal legal order can no longer continue.30 c.  The means of dictatorship Because dictatorship is an institution that reacts to the abnormality of legal order, its specific means must be appropriate to abnormality. Schmitt argued, citing Machiavelli, that both the deliberative nature of the Rechtsstaat and the separation of powers create debilitating hurdles in abnormal conditions.31 The urgency of averting a total collapse of the legal order legitimates the expanded powers of a dictator, including the fusion of the normally separated powers. To that end, dictatorship is an empowerment. In the case of twentieth-​century liberal democratic states, Schmitt argues, this empowerment can come about in opposition the following three normal institutions:32 1. Constitutional constraint and guarantees of basic liberties; dictatorship circumvents individual constitutional laws, including basic liberties, when they stand between the institution and its specific end (the preservation of the status). 2. Parliamentary discussion and relative rationalism. 3. Democracy and Equal Chance.

2.  the absence of order: dictatorship as creator pacis

In addition to “commissarial” dictatorship, Schmitt theorized “sovereign” dictatorship. Concerns about Schmitt’s theory of dictatorship—​ that its power is inherently expansive and it subverts the rule of law—​tend to stem from the concept of sovereign dictatorship.33 Maus worries that the boundary between commissarial and sovereign dictatorship is sufficiently blurred to the point where the potential abuses of sovereign dictatorship may carry over into commissarial dictatorship.34 McCormick writes that “[sovereign dictatorship] becomes the power to perpetually suspend and change political

 Ibid 118.

30

 Ibid 4.

31

32

  Taken from Schmitt, “Diktatur” 36–​7.

  McCormick 217–​18; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford University Press 1997) 75–​6. 33

  Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) 128–​9. 34

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The Guardian of the Constitution

order in the name of an inaccessible people and an eschatological notion of history.”35 While there is good reason to be concerned about the expansive potential of dictatorship, close examination reveals Schmitt’s sovereign dictator is more circumscribed than appears. Schmitt conceptually distinguished sovereign dictatorship from sovereignty. And like the commissarial dictator, Schmitt understood the sovereign dictator as a representative of an underlying status or ideal of concrete order. Moreover, the sovereign dictator may be the only way to solve the paradox of democratic foundations: the people’s self-​constitution. a.  The persistence of representation: Sovereign dictatorship and the commission In his “Diktatur” (1926), Schmitt defined sovereign dictatorship in identical terms to commissarial dictatorship.36 He conceived of both as instrumentally rational institutions that aimed at realizing a normal legal order using means outside of positive law, perhaps because positive law has become a barrier to maintaining order. Like commissarial dictatorship, Schmitt theorized sovereign dictatorship to be a reactive institution. It responds to the absence of order. Hofmann argues that, in realizing public order, Schmitt theorized the sovereign dictator as recognizing the essence of the people and its right to its particular form of life—​an argument that bears the imprint of Savigny and the Historical School.37 The distinction between the two forms of dictatorship rests on whether the political status has been normalized already or not. Schmitt argued the commissarial dictator restores [wiederherstellt] a normal state whereas the sovereign dictator brings about [herbeiführt] a normal state in the first place. A sovereign dictator differs from a commissarial dictator because it is authorized when “the entire legal order [Rechtsordnung] is suspended [aufgehoben] and the dictator serves the purpose [Zweck] of bringing about an entirely new order [neue Ordnung].”38 Schmitt accordingly defined sovereign dictatorship either as an institution that follows a revolution or an institution that is revolutionary itself. In other words, it either fills a void in public order that it did not itself generate or it creates that void and then fills it. Of this latter type, Schmitt wrote, 35

 McCormick 223.

  Again, he defines dictatorship is “the exercise of state power freed from legal constraints for the purpose of overcoming an abnormal state, especially war and insurrection. Thus, decisive for the concept of dictatorship is first the idea of a normal state, which should be restored or brought about by the dictatorship, and furthermore the idea of certain legal constraints, which are abolished (suspended) in the interest of eliminating the abnormal state.” Schmitt, “Diktatur” 33. 36

37

 Hofmann 190.

  Schmitt, “Diktatur” 35.

38

 16

The Absence of Order 

• 

161

[it] can, however, also consist in when a revolutionary party—​referring to the true will of the people—​seizes state power for itself and exercises it, albeit provisionally, i.e. until the realization of the condition [Zustand] in which the people can freely exercise their will, but it admittedly decides itself on when this condition has arrived.39

Schmitt offered examples of both types of sovereign dictatorship.40 Non-​ revolutionary sovereign dictatorship is “the common case of the modern democratic state,” exemplified by the 1919 Weimar National Assembly. The Bolshevik dictatorship of the proletariat, on the other hand, exemplified revolutionary sovereign dictatorship. Concerns about Schmitt’s sovereign dictatorship hinge on its ability to decide “ex nihilo” or arbitrarily and the propensity for a commissarial dictator to take on sovereign power. But Schmitt emphasized that both types of dictatorship are actually commissioned.41 That is, the sovereign dictator too is a commissioned authority. It too is representative. In a long passage, Schmitt expanded on this argument: In both cases [sovereign dictatorship, occurring either only after a revolution or before as a cause of that revolution], there exists [vorliegen] a commission of action [Aktionskommission] as in the commissarial dictatorship, and in both cases the concept remains functionally dependent on the idea of a rightful constitution–​because even in the revolutionary dictatorship the constitution to be realized by that dictatorship is itself suspended, as is the ever present pouvoir constituant. But, while commissarial dictatorship is authorized by a constituted organ and is entitled by the existing constitution, sovereign dictatorship exists only quoad exercitium [in relation to what it does] and it is derived [abgeleitet] immediately from the formless pouvoir constituant. It is truly a commission . . . But because the external conditions have yet to be created in order for the constituent power of this same people to come into effect . . . the content of the constituting will, in itself problematic, is not actually available. Consequently this dictatorial power is sovereign, but only as a “transition [Übergang]”; and, because of its dependence on the task to be accomplished, this power is sovereign in a completely different sense from that in which the absolute monarch or a sovereign aristocracy can be said to be “sovereign.” The commissary dictator is the unconditional commissar of action of a pouvoir constitué, and the sovereign dictator is the unconditional commission of action of a pouvoir constituant.42

Schmitt described the National Convention of 1792 as merely an “extraordinary organ of the pouvoir constituant” and not the pouvoir constituant itself.43 He did not think that the sovereign dictator was sovereign. There is of course the danger of the concentrated power of the sovereign dictator allowing it  Ibid.   40  Taken from ibid 35–​6.   

39

  Hofmann 80–​1.

41

 Schmitt, Dictatorship 126–​7 (translation altered).   

42

  Ibid 127; Cf. Hofmann 61–​2.

43

162

162 

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The Guardian of the Constitution

to simply assume the decision. But here it is worth looking at the examples of sovereign dictatorship Schmitt provided: the American Constitution Convention, the 1792 French National Convention, the French National Assembly of 1848, and the 1919 Weimar National Assembly. Without sovereign dictators, the realization of public order would not be possible at all—​and liberal democracy is no different in this regard. So even a national assembly founding a constitutional democracy—​ and Schmitt undoubtedly had in mind the 1919 Weimar National Assembly here—​must have an undemocratic authoritarian moment as a sovereign dictator, if there were to be a decision at all.44 Schmitt theorized the difference between commissarial dictatorship and sovereign dictatorship not as that between a constituted power and a sovereign constituting power. The difference is the degree of mediation between the dictator and the pouvoir constituant. The sovereign dictator is authorized directly by the pouvoir constituant. In other words, the sovereign dictator’s authority is “immediate”: pouvoir constituant → sovereign dictator. The sovereign dictator represents the pouvoir constituant directly. Whereas the commissarial dictator’s authority is mediated:  pouvoir constituant → Absolute Constitution → commissarial dictator. The commissarial dictator represents the public order already in effect. But “the concept [dictatorship] always remains in a state of functional dependence on an existing or imagined constitution.”45 b.  A moment of pure decisionism? The generative paradox in the decision The sovereign dictator’s subordinate representational role may not address the concerns that Schmitt’s interpreters have raised, however. It may only beg the question: would the sovereign dictator’s authorization by the pouvoir constituant have any actual practical impact on its power to decide? Is Schmitt’s theory just a conceptual sleight of hand? Scheuerman in particular raises this concern, arguing that the sovereign dictator could simply wrestle the decision from the pouvoir constituant and rule at will.46 This is a serious concern. Just as a normal representative could simply abuse the trust of his or her office, so too might a sovereign dictator abuse its authority and decide for a constitutional order that in no way represents the people who commissioned it. Schmitt acknowledged this problem. Framing his comments in the state of nature, he wrote that  Cf. Hofmann 155; Maus 128–​ 9; Jörg-​ Detlef Kühne, “Demokratisches Denken in der Weimarer Verfassungsdiskussion—​ Hugo Preuss und die Nationalversammlung” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 121. 44

45

 Schmitt, Dictatorship 128.

 Scheuerman 69.

46

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The Absence of Order 

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163

the “contract” that produced the state is only possible through a sovereign guarantee of the order thereby established and only through the state whose power just arose from this general consent. The sovereign is omnipotent through the consent he himself produced and made possible through the omnipotence and decision of the state.47

The sovereign dictator generates “the people” as a political entity in the first place, so “the people” seem bound to its decision, whatever the content of that decision happens to be. The people, as a pouvoir constituant, is inherently unorganizable and “invisible.”48 Hofmann describes how the people is incapable of action and requires the sovereign dictator’s representation.49 Maus asks whether there is anything prior to this apparent act of will.50 Despite being the source of authority, the people appears to be a totally powerless entity before its representative. Yet, as Chapter 2 discussed, Schmitt also argued stable public order cannot be produced by compulsion, by a Representation of a particular constitutional order.51 Subjects must politically Identify with what has been Represented if that order is to be legitimate and to persist over time. Hofmann argues the people’s unifying status must be both presupposed for that people to exist at all and something that is that people’s decision.52 Similarly, Kalyvas argues Schmitt’s sovereign dictator is paradoxically both a delegated power and a constituting power at once.53 He argues that a people must be presupposed as existing already by the process through which it will be generated.54 A sovereign dictator offers a way to generate a people politically, but it does not satisfactorily account for how it will generate subjects’ identity with that people. There thus appears to be a problem at the heart of Schmitt’s theory of sovereign dictatorship:  how does power remain with the pouvoir constituant, despite its inability to self-​organize? How can the sovereign dictator be both a delegated authority but also a constituting power? Schmitt’s arguments thus lead to what Arendt called “Sieyès’ circle”: the generative paradox of sovereign dictatorship.55 Unfortunately, Schmitt did not provide a direct answer to these questions. He did write,   Carl Schmitt, On the Three Types of Juristic Thought ( Joseph W. Bendersky tr, Praeger Publishers 2004) 74.

47

 Schmitt, Dictatorship 131.

48

 Hofmann 71.

49

 Maus 122.

50

  Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 245ff; Carl Schmitt, The Crisis of Parliamentary Democracy (Ellen Kennedy tr, The MIT Press 1988) 31. 51

  Hofmann 62, 141, 144, 147.

52

  Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge University Press 2008) 90, 100. 53

 Schmitt, Constitutional Theory 101, 127.

54

  Cf. Hannah Arendt, On Revolution (Penguin 2006) 199. I am indebted to Elvin Lim for bringing this concept to my attention. 55

164

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even if the will of the people does not exist in terms of content but is shaped primarily through representation, the representative’s dependence on this will—​a dependence that is unconditional and, put succinctly, commissarial—​persists. The will can be unclear. In fact, it is even the case that it must be unclear, if the pouvoir constituant is to be truly unconstitutable [unkonstituierbar].56

Vinx argues that the sovereign decision works only when a sufficient number of its addresses concur with that decision.57 Schmitt clearly did think that the will of the sovereign dictator is bound to the pouvoir constituant. Despite its apparent contradictions, Schmitt’s argument can be made sense of. The existence of “the people” is dependent on a sovereign dictator. But “the people” retains the right to legitimate the sovereign dictator’s representation of it.58 The people’s sovereign power is negative. It is the power to affirm or reject decisions presented to it.59 It is the power to veto. This negative power generates a dialectic with the sovereign dictator. A sovereign dictator may represent a political status of a nascent “people” that the multitude of actual individuals may not identify with at all.60 Sovereign dictatorship could thereby fail to be legitimate and “the people” would be stillborn, so to speak. However, as Kalyvas argues, Schmitt did not allow a moment of radical democracy here even though the final decision rests with the people.61 Schmitt limited even this moment of extraordinary democracy to mere acclamation in order to limit the power of actually existing individuals to decide. The outcome of the Weimar National Assembly was generally regarded as an example of this sort of plebiscitary acclamation.62 And Schmitt’s theory of sovereign dictatorship was inspired by it. When a constitution is first formed, it expresses the will of only a ficticious “people” that may or may not be the will of any actually existing people. It is the idea of the people’s political status, not necessarily whatever actual individuals happen to will at the moment of constitution. Nevertheless, the pouvoir constituant must be presupposed as existing in these pre-​constitutional, formative moments.63 And afterwards it

 Schmitt, Dictatorship 134 (translation altered). Schmitt argues that Sieyès too emphasized that all organs of the state, including the representative of the will of the pouvoir constituant, are ultimately commissarial and bound to its will: ibid 125. 56

57

 Vinx 112.

  Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 2005) 5, 7. 58

59

 Schmitt, Constitutional Theory 131–​2; Cf. Schmitt, Political Theology 17.

60

 Schmitt, Constitutional Theory 143; Schmitt, The Crisis of Parliamentary Democracy 26; Cf. Kalyvas 128.

61

  Kalyvas 124–​5.

63

  Carl Schmitt, Roman Catholicism and Political Form (G. L. Ulmen tr, Greenwood Press 1996) 20–​1.

  Kühne 121–​2.

62

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remains in the background, still capable of exercising its negative yet decisive veto power.64 The relationship of the sovereign dictator and the people in this generative paradox can be demystified through an example. Schmitt described the French National Convention of 1792 as merely an “extraordinary organ of the pouvoir constituant.”65 Although it represented the pouvoir constituant and provided a concrete expression of the political status that the members of the convention believed was the identity of the French nation, the French nation itself could have rejected it. Hofmann discusses how, for the founders of the Weimar Republic, the presupposed unity of the German people was a guiding principle. Yet there was no political unified people until the constitution had created it.66 Although the people cannot deliberate and decide on basic political decisions about its form and political status, it can evaluate decisions presented to it by its representative. The Weimar National Assembly represented the political identity of the German people, the pouvoir constituant, and presented to them the constitutional order it believed best represented their political status.67 Had the German people rejected its representation, the Weimar National Assembly would have failed as a sovereign dictator. c.  Who decides on what? Hard and soft decisions Cristi distinguishes “hard” and “soft” decisions in Schmitt’s thought.68 His distinction illustrates how Schmitt conceived of the power of these two types of dictatorship. A  hard decision occurs in the absence of any valid public order.69 That decision determines which order there ought to be. It represents the beginning of a specific Absolute Constitution.70 Cristi argues Hobbes was the first hard decisionist: Hobbes recognized that there was no longer a single Idea structuring European political order.71 The political pluralization of Christian denominations led to a violent competition to impose their beliefs. Hobbes’ hard decision came about “because of the collapse of classical and Christian concepts of order.”72 And in his polemic against Bellarmine, Hobbes made clear that the sovereign authority to decide must include religious interpretation because it was religion that had become existentially divisive. Drawing on Hobbes, Schmitt argued that only the sovereign dictator is authorized to make hard decisions on the political status. Schmitt’s sovereign dictator is a creator pacis.  Schmitt, Constitutional Theory 131, 140–​2, 271; Cf. Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford University Press 2003) 205–​7. 64

 Schmitt, Dictatorship 127.

65

  Cristi 162; Cf. Kalyvas 144–​5.

68

 Ibid 162.

72

  Hofmann 132–​5.

66

69

  Cristi 73, 97, 162.

67

  Ibid 76–​7.   Ibid 97–​8.

70

 Ibid 103.

71

16

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Cristi writes that the soft decision, on the other hand, is “limited and encompassed by the idea of [an] order.”73 It does not mark a new beginning but occurs during a temporary exception to a valid system of norms.74 This exception occurs when a valid constitutional order somehow becomes dysfunctional—​ rather than because there is no valid constitutional order at all. Soft decisions determine how to concretize a valid political status. As such, they could be made both by “normal” institutions, like the legislative branch, or by abnormal institutions, like a commissarial dictator. Both are authorized by the constitution in effect. So even when that constituted order experiences an emergency or an exception, it still continues to rest on and presuppose precisely that same underlying political status. Schmitt’s commissarial dictator is merely a defensor pacis.

3.  the guardian of the constitution In his late Weimar writings, Schmitt discussed “the guardian of the constitution,” which seems to update his theory of commissarial dictatorship. Kalyvas argues that with his theory of the guardian, Schmitt continued theorizing means to preserve and defend the constitution.75 The guardian is authorized by the written constitution to maintain the constitutional order in exceptional circumstances. It exists for the sake of maintaining the public order itself.76 The Weimar National Assembly had organized the guardianship of the Weimar Constitution between the legislative branch (the Reichstag) and the executive branch (the Reichspräsident) of the Weimar government, according to the constitutional principle of the balance of power.77 Both branches were democratically elected. Balancing the two was intended to further contain them within the bounds of Weimar’s constitutional order and to provide safeguards in case either was somehow incapacitated.78 Curiously, Schmitt rejected the judiciary as a possible guardian of the constitution out of hand. In his dismissal of the judiciary, Schmitt refered to Montesquieu’s argument that the judge was merely the mouthpiece of the legislative branch.79 Hofmann elaborates on Schmitt’s rationale for doing 73

 Ibid.

76

  Carl Schmitt, Der Hüter der Verfassung (4th edn, Duncker & Humblot 1931) 141, 148–​9; Cf. Cristi 189–​90.

 Ibid 104.

74

 Kalyvas 143.

75

  Kühne 125–​6; Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik (Duncker & Humblot 1999) 74ff; Cf. Schmitt, Constitutional Theory 250ff; Schmitt, Der Hüter der Verfassung 78; Carl Schmitt, “Die Wendung zum totalen Staat” in Positionen und Begriffe im Kampf mit Weimar—​Genf—​ Versailles 1923–​1939 (Duncker & Humblot 1988) 150, 332. 77

 Schmitt, Der Hüter der Verfassung 156–​9; Schmitt, Constitutional Theory 362-​72.

78

 Schmitt, Der Hüter der Verfassung 100–​8; Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 31; Schmitt, Constitutional Theory 222, 232; Schmitt, Der Hüter der Verfassung 17–​22; Schmitt, Dictatorship 89, 245, 273; Cf. Kelsen 183ff, 189. Both Schmitt and Franz L.  Neumann repeated 79

 167

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so, arguing he had three reasons: (a) the judiciary is functionally dependent on the legislative anyway; (b) the judiciary lacks executive agency, so it cannot guarantee a “situation in its totality” by developing and implementing a political status; and (c) the judiciary lacked democratic legitimation.80 Vinx adds that Schmitt opposed any form of judicial review because it empowered the judiciary to make political decisions which fell outside its competence.81 Kelsen criticized Schmitt and questioned “why not empower the judiciary to serve as the guardian of the Weimar Constitution, or an additional guardian of the constitution (as for example it had become in the United States)?”82 Schmitt unfortunately did not give a direct answer to Kelsen’s question. What he did write was not entirely convincing. On the one hand, this power was not already granted by the constitution and Schmitt would have argued the constitution could not—​and perhaps should not—​be altered to empower the judiciary. On the other, although it could guarantee the constitution against unconstitutional changes brought by the state and other governmental powers, it was unclear how the judiciary could address threats emerging from society—​which Schmitt thought was the real source of Weimar’s problems. This limit is something Kelsen himself seems to acknowledge when he argues that “a constitutional court does not enact statutes, it destroys them . . . it functions as a ‘negative legislator’.”83 A negative guardian has a role to play, which Schmitt overlooks entirely. But given his concern about negative majorities impeding the state’s ability to respond to Weimar’s crises and the need to respond to the extremist movements in civil society he perceived, his rejection of the judiciary cannot be dismissed as totally groundless either. Regardless of the role that the judiciary could have been made to play, any sort of constitutional change presupposed that parliament was capable of amending the constitution in order to empower it. This simply was not a possibility in the early 1930s. Schmitt argued that, according to Preuß’ design, there were only two guardians of the Weimar Constitution: the Reichstag and the Reichspräsident. a.  The Reichstag as the guardian of the constitution Weimar’s parliament was designed to serve as the “definitive political leadership through [a parliamentary] majority” based on the Articles 50, 54, and 59 of the Constitution.84 This role stemmed, in part, from the design of Montesquieu’s adage that the judiciary was not really an independent branch because it was “en quelque façon nul.” See for example Franz L. Neumann, “The Concept of Political Freedom” (1953) 53 Columbia Law Review 901, 912.  Hofmann 84.

80

  Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford University Press 2007) 149–​50.

81

 Kelsen 201ff.

82

  Ibid 193–​4.

83

 Schmitt, Constitutional Theory 363.

84

168

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the Chancellorship, which according to Articles 53, 55, and 56 was intended to guide and lead parliament, and the design of the Governing Cabinet, which according to Articles 53, 54, 57, and 58 was intended to support the Chancellor. Together, the Chancellor and the Cabinet constituted the Reichsregierung. Berthold argues that Schmitt did not seek to alter parliament’s constitutionally determined role as guardian: he defended the right of a functional Reichstag to exercise Articles 54 and 48.3 to guard and preserve Weimar’s constitutional core.85 Schmitt’s concern, both Berthold and Kennedy argue, was with the concrete circumstances facing Weimar.86 As discussed in Chapter 1, Schmitt had come to the conclusion that the dysfunctionality of Weimar’s parliament was great enough to prevent it from accomplishing much of anything. It was incapable of facing Weimar’s crises, let alone acting as the guardian of the constitution. Accordingly, Schmitt did not devote much energy to its analysis. b.  The Reichspräsident as the guardian of the constitution Preuß did not design Weimar to be a purely parliamentary system, however.87 If parliament could not function, the Reichspräsident was designed as a counterpower that could step in—​including by acting as the guardian of the constitution.88 Article 41 designed the Reichspräsident as a democratically legitimated and accountable elected official. The Reichspräsident’s powers consisted in appointing the chancellor (and thus to affect normal legislation positively), dissolving the Reichstag (to affect normal legislation negatively), and initiating popular referenda (to legislate positively if indirectly) through Articles 25, 73, and 53.89 Besides these measures, the Reichspräsident had one other constitutional mechanism at his disposal:  Article 48. Article 48 authorized the Reichspräsident to “utilize the necessary measures to restore public security and order.” This authorization empowered the president to serve as the guardian of the constitution. Schmitt argued that the Weimar Constitution

85

 Berthold 74ff.

 Ibid 74; Ellen Kennedy, “Emergency Government within the Bounds of the Constitution:  An Introduction to Carl Schmitt, ‘The Dictatorship of the Reich President according to Article 48 R.V.’” (2011) 18 Constellations 284, 284–​5, 290–​2. 86

87

 Schmitt, Constitutional Theory 315–​16, 362.

 Hofmann 71; Berthold 74–​5; Klaus Roth, “Carl Schmitt–​ein Verfassungsfreund? Seine Stellung zur Weimarer Republik in der Phase der relativen Stabilisierung (1924–​29)” (2005) 52 Zeitschrift für Politik 141, 154; Florian Meinel, “Diktatur der Besiegten? Ein Fragment Carl Schmitts zur Notstandsverfassung der Bundesrepublik” (2013) 52 Der Staat 455, 471. 88

89

 Schmitt, Constitutional Theory 364, 369–​72.

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169

established parliamentary controls over the Reichspräsident, so that the counter-​guardianship of the Reichspräsident would be possible only if parliament was unable to organize itself and govern. Toward the end of Weimar, the Reichspräsident was its only functioning authority.90 Independent of political parties but not apolitical, Schmitt argued the Reichspräsident was elected to represent the German public interest. As discussed in earlier chapters, Preuß conceived of the people in organic terms: its condition of unity was defined by the Weimar Constitution. Accordingly, Schmitt argued, the Reichspräsident’s duty as guardian of the constitution—​ sworn by oath—​ was to represent that status.91 Schmitt outlined the Reichspräsident’s escalating role as guardian:92 a. State as Honest Mediator among Social “Interest-​Complexes”; b. Majority-​Forming Objective Third; c. State/​President as a Third Party (as an Independent Social Power); d. State Mediator/​President as assuming the Open Decision. Each escalation corresponds to a greater degree of political factionalism and obstruction within parliament. In the first stage, the state, represented by the Reichspräsident, merely mediates between different social interest groups to help arrive to definite soft legislative decisions.93 In the second stage, “interest complexes” become divisive enough where they effectively neutralize one another by cancelling out one another’s votes.94 The Reichspräsident participates in the legislative process by casting a tie-​breaking vote, based on whatever best represents the public interest. In the third stage, the Reichspräsident not only casts a decisive vote but contributes to deliberation about what constitutes the public interest, to “guarantee the view of the majority represents a fair balance among interests” and that they remain committed to the constitutional ideal of justice.95 Kalyvas identifies this stage as when the Reichspräsident begins to shift from a neutral power to a politically decisive one.96 Yet Schmitt believed parliamentary action is still possible at this point and the Reichspräsident’s power, even if it is an independent power now, is merely one among the many other powers within parliament. The final stage is characterized by the total breakdown  Stefan Korioth, “Rettung oder Überwindung der Demokratie–​Die Weimarer Staatsrechtslehre im Verfassungsnotstand 1932/​33” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 514–​15. 90

 Schmitt, Constitutional Theory 369–​70; Schmitt, “Diktatur” 35–​6.

91

 Schmitt, Der Hüter der Verfassung 143–​9. In his Constitutional Theory, Schmitt has a simpler escalating role for the president, between a neutral third (who mediates a functional parliament) and a political leader (who, in the face of a dysfunctional parliament, must promote legislation actively). Schmitt, Constitutional Theory 370–​1. 92

 Schmitt, Der Hüter der Verfassung 143.

93

 Ibid 144.

94

  Ibid 145, 147.

95

 Kalyvas 157.

96

170

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The Guardian of the Constitution

of parliament. Only the Reichspräsident is capable of representation and the Reichspräsident must act both to keep the government running and to preserve its basic constitutional order.97 At this point, the Reichspräsident becomes the sole guardian of the constitution and holds commissarial dictatorial authority. Central to Schmitt’s theory of presidential guardianship was his work on Article 48. The purpose of Article 48, Schmitt argued, is to enlarge the area of the state’s initiative to cope with some external situation undermining the status quo.98 Unlike parliament, which is constitutionally authorized to pass legislation, Article 48 only enables the Reichspräsident to issue measures and suspend articles of the constitution, it does not provide any mechanisms to amend the constitution or to legislate.99 Neither does Article 48 enable the Reichspräsident to affect Weimar’s fundamental political commitments.100 Hofmann writes that, in 1924, Schmitt denied that it was possible for the Reichspräsident to abuse Article 48.101 In formulating his ideal of the Reichspräsident as the guardian of the constitution in 1924, Schmitt must have had Ebert in mind.102 He catalogued Ebert’s every use of Article 25.103 And he approved of Ebert’s use of Article 48 to defend the basic order of Weimar’s Absolute Constitution.104 Ebert could decide on who was a “Friend” of the Weimar Constitution—​he had decided for a political form of liberal democratic order that had positive content and recognized its Enemies. Schmitt seems to have thought Ebert genuinely upheld his oath to defend the constitution because Ebert understood what its fundamental commitments were.105 Berthold argues that, as Weimar’s late crisis unfolded, Schmitt formulated his theory of the guardian of the constitution based on both Ebert’s and Hindenburg’s use of Article 48 to resolve Weimar’s political, economic, and constitutional emergencies.106 In particular, Hindenburg and the Brüning cabinet—​relying on precedents set by Ebert—​used executive measures and  Schmitt, Der Hüter der Verfassung 148–​9.

97

  Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 304, 306; Schmitt, Dictatorship 175. 98

99   Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 310, 314, 316; Schmitt, Dictatorship 176.

 Schmitt, Dictatorship 175; Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” 314. 100

 Hofmann 70.

101

 Kelly 178.

102

  Carl Schmitt, “Reichstagsauflösungen” in Carl Schmitt (ed), Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 Materialien zu einer Verfassungslehre (Duncker & Humblot 1958) 27. 103

 Schmitt, “Reichspräsident und Weimarer Verfassung” 26–​7; Schmitt, Der Hüter der Verfassung 139, 140; Schmitt, “Reichstagsauflösungen” 15; Cf. Joseph W. Bendersky, Carl Schmitt:  Theorist for the Reich (Princeton University Press 1983) 34, 74, 100, 112–​13, 124; Reinhard Mehring, Carl Schmitt: A Biography (Polity 2014) 142; Cristi 63–​70; Meinel 471. 104

 Schmitt, Constitutional Theory 81.

105

 Berthold 46.

106

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ordinances to bypass the dysfunctional Reichstag, such as by issuing emergency action on budgetary and financial restructuring laws.107 In 1925, Schmitt had warned that the success of guardianship hinged on the personal qualities of whoever was elected.108 A Reichspräsident opposed to the constitution would be unlikely to genuinely guard it. With the authority to interpret in the hands of an enemy, “the Weimar Constitution could appear entirely differently without a word of the text of the constitution having been changed.”109 Although Schmitt was aware of the potential dangers of the powers of guardianship, he did not offer any guidelines on how to rein in their abuse. In 1914, Schmitt had argued that “no law can self-​enforce; there are only men, who can be installed as guardians of the laws and who are wary of guardians themselves, who do not benefit from being installed as guardians.”110 Schmitt likened the guardian of the constitution to Plato’s Philosopher-​King or Fichte’s Ephorat, who ensured the state as a whole adhered to Recht.111 Schmitt’s theory of the guardian, a figure always prepared to step in and maintain the basic structure of the public order when normal institutions had failed, seems inspired by Plato, who also theorized a guardian sitting at the heart of a legitimate political order. Despite its flaws, Schmitt did not seem to have intended to smuggle in a permanent state of exception or the arbitrary rule of a tyrant with his theory of dictatorship. While his theory admitted exceptions to positive law, and in that sense deformalized it, he had conceived of the written law as one facet of a broader “super-​legal” system of law. In this sense, the dictator was an exception to the positive legal order—​but it was not intended to suspend the public order as a whole. Dictatorship was intended to overcome the impasse within parliament according to the rules outlined by the Weimar Constitution. Although Schmitt recognized the danger of the Reichspräsident’s concentrated authority, he recognized that in a healthy state there would be mechanisms to counterbalance it—​namely a functioning Reichstag. The marginalization of the judiciary in his theory is disappointing because it seems like a plausible alternative solution to the dangers of the abuse of power by either the legislative or the executive when its counterbalancing branch too had become dysfunctional.

  Ibid 71–​2.

107

  Kelsen raised a similar concern. Kelsen 210.

108

  Schmitt, “Reichspräsident und Weimarer Verfassung” 26–​7.

109

  Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Duncker & Humblot GmbH 2004) 83 (my translation). 110

  Cf. Schmitt, Der Hüter der Verfassung 7.

111

172

 173

•6• Basic Rights

Schmitt designed his state and constitutional theory formally, to apply to many different basic decisions on public order. So far, this book has analyzed Schmitt’s state and constitutional theory in those formal terms. Yet, Hofmann argues, Schmitt originally developed his theory to solve the crisis of the Weimar state as a bourgeois Rechtsstaat.1 He wanted to understand the “changed state of things” in order to restore the authority of the Weimar state and defend its constitution against democratic legal revolution. Conceived through the lens of statutory positivism, Weimar’s defenders could recognize neither the fundamental commitments of its public order nor its enemies.2 Schmitt thought he could provide the solution to Weimar’s crisis that they had been unable to. Restoring the authority of the Weimar state and constitution required determining what its basic political decision was. Schmitt argued the constitution already contained two opposed basic decisions, which broke down along the lines of its First and Second Principal Parts: democracy or basic rights. His analysis of the fundamental decision of the Weimar Constitution is an extension of his analysis of the relationship between liberalism and democracy, discussed in earlier chapters. Liberalism and democracy had originated together and could often unproblematically coexist. Similarly, so too did constitutions that committed to both values. Yet, as Huber argues, Schmitt denied there was any necessary relationship between democracy and liberalism (individual liberty rights).3 Modern mass democracy had shown that, although these two commitments could coexist with one another, they were fundamentally opposed. They could and did conflict. And as tensions between the

  Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 125–​6. 1

  Cf. Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) 83–​4; Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik (Duncker & Humblot 1999) 54–​60. 2

  Ernst Rudolf Huber, “‘Positionen und Begriffe’: Eine Auseinandersetzung mit Carl Schmitt” (1941) 101 Zeitschrift für die gesamte Staatswissenschaft 1, 11. 3

Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

174

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commitment to democracy and liberalism arose, a constitutional decision on which commitment had lexical and political priority became necessary. This chapter argues that Schmitt determined only the commitment to individual liberty, the basic liberty rights spelled out in the Second Principal Part of the Weimar Constitution were capable of generating Weimar’s political status and satisfying his theory of the Absolute State and Absolute Constitution. Democracy could not be a political decision. Maus argues that, by identifying “bourgeois Rechtsstaat” principles as the basic commitment of Weimar, Schmitt hoped to preserve the identity of an educated middle class in an age of mass democracy.4 In doing so, Maus argues, Schmitt developed unconventional solutions to Weimar’s problems that became a proto-​theory of constrained democracy.5 Schmitt’s unconventional solutions attempted to provide a way to clearly identify Weimar’s Enemies and constitutional mechanisms to respond to them. Meinel describes how Schmitt was identified as a progenitor of the German debates about constrained democracy in the 1960s.6 Schmitt’s “shadow” was recognized in arguments advocating the reintroduction of emergency powers into the constitution (initially absent from the Bonn Grundgesetz), such as Eschenburg’s claim that emergency rule was an objective need to maintain the state and Allemann’s claim that “one cannot preserve democracy when one refuses the means to defend it.”7 Indeed, many of the mechanisms associated with the Grundgesetz principled commitments can be traced back to Schmitt’s theoretical defense of the Weimar state and constitution. It may surprise that Schmitt defended the Weimar Constitution at all, let alone the Second Principal Part guaranteeing basic rights. It flies in the face of almost everything known about him:  that Schmitt is the paradigmatic twentieth-​century illiberal and that illiberalism is the defining feature of his thought. Schmitt is often accused of being “relentlessly” illiberal; others dismiss him as, at best, opportunistically or “ironically” liberal.8 Yet, as   Maus 43; Cf. Otto Kirchheimer, “Remarks on Legality and Legitimacy” in William E. Scheuerman (ed), The Rule of Law under Siege (University of California Press 1996) 66; Marcus Llanque, “Massendemokratie zwischen Kaiserreich und westlicher Demokratie” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 44. 4

  Maus xi, 58–​9; Cf. Berthold Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 54, 60; Klaus Roth, “Carl Schmitt—​ein Verfassungsfreund? Seine Stellung zur Weimarer Republik in der Phase der relativen Stabilisierung (1924–​29)” (2005) 52 Zeitschrift für Politik 141, 146. See the conclusion for further discussion of Schmitt and constrained democracy. 5

  Florian Meinel, “Diktatur der Besiegten? Ein Fragment Carl Schmitts zur Notstandsverfassung der Bundesrepublik” (2013) 52 Der Staat 455, 462ff. 6

7

  Fritz Rene Allemann, Wenn der Staat in Not ist, Die Zeit Nr. 44 v. 30.10.1959, p. 1. Cited in ibid 462–​3.

  Jan-​Werner Müller, “Carl Schmitt and the Constitution of Europe” (1999–​2000) 21 Cardozo Law Review 1777, 1781; Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge University Press 2008) 124; Cf. 14, 82, 127, 141; John P. McCormick, “Fear, Technology, 8

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discussed in the Introduction, Hofmann, Lübbe, Cristi, and Urbinati have all questioned whether portraying Schmitt as an illiberal is really accurate. Cristi compellingly argues that Schmitt may be better characterized as an authoritarian liberal.9 To be sure, Schmitt was no devoted liberal. He did join the Nazi party. After which, he used his state and constitutional theory to analyze the Third Reich and to defend atrocious Nazi laws and acts. Schmitt’s personal decision to use his thought for those ends is indefensible. The malleability of Schmitt’s political theory can however be explained by his commitment to the state and its provision of order as such. As discussed in the Introduction, Schmitt’s biographical occasionalism can be explained by his state and constitutional theory. Schmitt was less concerned with which order was right or most justified than he was with the fact of political stability, whatever the foundation. For this reason, Karl Loewenstein remarked in 1945 that Schmitt would be “as successful and ardent a defender of democracy as he was a defender of totalitarianism,” were he permitted to resume teaching, writing, and publishing.10 A way to understand Schmitt’s defense of Weimar’s commitment to basic rights is through the lens of Donoso Cortés, whose attitude toward liberalism in his Ensayo parallels Schmitt’s. Cortés was critical of and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany” (1994) 22 Political Theory 619, 644–​5, 647; William E. Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publisher, Inc. 1999) 255; Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford University Press 2003) 229–​31; Duncan Kelly, “Carl Schmitt’s Political Theory of Representation” (2004) 65 Journal of the History of Ideas 113, 133–​4; John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press 1997) 5–​6; Jürgen Habermas, “Sovereignty and the Führerdemokratie” The Times Literary Supplement (London, September 26, 1986) 1053–​4; Jan-​Werner Müller, A Dangerous Mind: Carl Schmitt in Post-​War European Thought (Yale University Press 2003) 1ff; Ulrich K. Preuss, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution” in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Duke University Press 1994) 154; Ellen Kennedy, “Introduction: Carl Schmitt’s Parliamentarismus in its Historical Context” in The Crisis of Parliamentary Democracy (The MIT Press 1988) xxxv–​xxxvi; Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (The MIT Press 1992) 232, 237–​40; Chantal Mouffe, The Return of the Political (Verso 1993) 121; Emanuel Richter, “Carl Schmitt: The Defective Guidance for the Critique of Political Liberalism” (1999–​2000) 21 Cardozo Law Review 1619, 1631; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford University Press 1997) 38; John P. McCormick, “Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt’s Legality and Legitimacy” in Jeffrey Seitzer (ed), Legality and Legitimacy (Duke University Press 2004) xlii; Jeffrey Seitzer, “Carl Schmitt’s Internal Critique of Liberal Constitutionalism: Ver fassungslehre as a Response to the Weimar State Crisis” (1997) 10 Canadian Journal of Law and Jurisprudence 203, 203–​5; Hermann Lübbe, “Carl Schmitt Liberal Rezipiert” in Helmut Quaritsch (ed), Complexio Oppositorum: Über Carl Schmitt (Duncker & Humblot 1988); Udi Greenberg, The Weimar Century: German Émigrés and the Ideological Foundations of the Cold War (Princeton University Press 2014) 87, 131. 9   Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (University of Wales Press 1998) 6ff.

  Cf. Karl Loewenstein, Observations on Personality and Work of Professor Carl Schmitt (Amherst College Archives and Special Collections 1945) 4; David Bates, “Political Theology and the Nazi State:  Carl Schmitt’s Concept of the Institution” 3 Modern Intellectual History 415–​22, 440–​2. 10

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liberalism. But he saw liberalism as a lesser evil than socialism and—​in the impending conflict between Catholicism and Socialism, between authority and democratic anarchy that Cortés foresaw—​he saw liberalism as a potential ally.11 The “liberal school,” he argued, recognized that government must not fall into the hands of the masses—​but liberals struggled to act on that recognition.12 Cortés’ Ensayo calls on liberals to join in the apocalyptic conflict on the side of truth and order (Catholicism) against relativism and anarchy (Socialism).13 Similarly, Schmitt suggests that he could accept a liberalism that was consciously political and fought against its Enemies’ attempts at insurrection and revolution of its order. This chapter analyzes Schmitt’s application of his state and constitutional theory to Weimar, focusing on his argument that basic liberal rights alone could offer a coherent decision on Weimar’s basic political status. Section 2 looks at how Schmitt applied his state and constitutional theory to the Weimar Constitution. It examines Schmitt’s criticism of the prevailing interpretation of the Weimar Constitution as above all “democratic” and how he denied this interpretation could provide a stable and enduring public order. It then turns to analyze how Schmitt theorized Weimar’s counter-​constitution in its provision of liberal basic rights. It also analyzes what the content of liberal basic rights are as a political decision. Section 3 looks at some practical constitutional mechanisms the application of his state theory to Weimar gives rise to: namely, entrenchment or “guarantees” of basic constitutional commitment to civil liberties, institutional guarantees, constraints on negative majorities in parliament, bans on unconstitutional parties, and a stronger federated state. This chapter concludes by looking at Schmitt’s reflections on the Bonn Grundgesetz (Basic Law) and how he saw it in relation to his earlier state and constitutional theory.

1.  the constitution and counter-​c onstitution of liberal democracy Schmitt identified a series of internal contradictions within the Weimar Constitution, which he thought contributed to Weimar’s political instability. The most debilitating was the contradiction between the First and Second Principal Parts.14 These parts defined Weimar’s democratic state form and

  Juan Donoso Cortés, Essay on Catholicism, Liberalism, and Socialism (Unknown tr, J. B. Lippincott 1862) 172–​3.

11

12

 Ibid 174.

  Ibid 179, 197.

13

  A second contradiction is discussed below. Schmitt argued the Second Principal Part appeared to be an arbitrary selection of many different types of rights, in particular, there were rights guarantees for both a socialist and a bourgeois basic decision. A  third contradiction was located within the First Principal Part. The First Principal Part enabled parliamentary and plebiscitary democracy to become opposed to one another. As discussed in Chapter 1, Schmitt by 1932 had come to deny that plebiscitary democracy 14

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its basic rights and duties, respectively. Schmitt argued their opposed fundamental commitments were actually two distinct political decisions and they actually divided the Weimar Constitution into a constitution and a counter-​ constitution.15 Although this contradiction was not unique to Weimar, the clear organization of the Weimar Constitution threw that contradiction into sharp relief: it appeared constitutional to use democratic procedures to abrogate basic rights, not to mention democracy itself; yet basic rights were intended to protect individuals and minorities against a majority will, regardless of whether it was procedurally valid or not. Although this theoretical contradiction lay dormant most of the time, it could erupt in times of crisis and instability. Circumstances can make it necessary to decide which political commitment is more fundamental in practice. And this is exactly what happened as Weimar’s total movements announced their intention to obtain a parliamentary majority to legally and democratically revolutionize the constitution. And it was the confusion arising from this internal contradiction that led Hindenburg to repeatedly pose his question “what is constitutional?” a.  The constitution: democracy and equal chance The statutory positivist response answered that democracy was the basic commitment of the Weimar Constitution. They argued that valid law consisted in the commands of the state legislator that had been formally enacted into statutes.16 As long as the state’s will adhered to the procedures in effect for enacting law, there were no limits to the content of that will.17 With democratization, the legislator had become the people, mediated by parliament. Combined with statutory positivism, this change meant that political and juridical “right” were the interests willed by the greatest quantity of voters. As Chapter 4 discussed, Schmitt characterized this interpretation of the Weimar Constitution as Relative. Schmitt argued there was an inherent link between a basic commitment to democracy and positive law. According to this positivist interpretation, the constitution was conceived of as the sum of constitutional laws. There was nothing “above” the articles of the written constitution. But, Schmitt argued, this interpretation had an underlying should have the prior legitimacy over parliamentary democracy that the constitution seemed to grant it in certain points.   Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 46–​7, 50, 93–​4.

15

  Stanley L. Paulson, “Statutory Positivism” (2007) 1 Legisprudence 1, 5–​6; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Duke University Press 1997) 2–​3. 16

  Cf. Otto Kirchheimer, “Legality and Legitimacy” in William E. Scheuerman (ed), The Rule of Law under Siege (University of California Press 1996) 52ff. 17

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commitment to the value of Equal Chance.18 He characterized it as the opportunity for “all conceivable opinions, tendencies, and movements to achieve a [democratic] majority.”19 Schmitt argued this underlying commitment brought the Weimar Constitution beyond a modus vivendi and legitimated it on some “lower level.”20 The commitment to Equal Chance was actualized legally through the article governing constitutional amendment. In the case of the Weimar Constitution, this was Article 76. As long as the amendment procedure could be validly applied to any articles of the constitution, then the highest commitment of the constitution was to that Equal Chance for any belief or value to become a part of the public order. Interpreting Weimar’s Constitution in these terms meant there were no implied limits to constitutional change. Schmitt criticized this prevailing interpretation for its dynamism:  a Relativized Constitution realized no status. Instead, he wrote, for it “there are no unconstitutional goals. Any goal, however revolutionary or reactionary, disruptive, hostile to the state or to Germany or even godless, is permitted and may not be robbed of the chance to be obtained via legal means.”21 With no definite political status, an amendment procedure was a mechanism for legal revolution. Schmitt warned that this interpretation could be abused to bring about virtually any type of political order—​ranging from a Soviet Republic to a National Socialist Reich, depending on which of Weimar’s extremist parties ultimately prevailed.22 Schmitt believed the positivist interpretation of the Weimar Constitution reflected and exacerbated the rationalization and disenchantment of his time.23 He thought the interpretation, that Weimar was a political decision to be democratic, was unviable. Democracy and Equal Chance were not a

  Carl Schmitt, Constitutional Theory ( Jeffrey Seitzer tr, Duke University Press 2008) 74ff; Schmitt, Legality and Legitimacy 47–​8, 58; Cf. Kirchheimer, “Remarks on Legality and Legitimacy” 77, 94–​5. 18

 Schmitt, Legality and Legitimacy 28.

19

  Ibid 41–​2.

20

  Ibid 48, Cf. 10, 46, 49. See also Kirchheimer’s remarks on Schmitt. Although he is critical of Schmitt’s argument, Kirchheimer describes how Schmitt rejects Weimar’s procedural democracy because it ultimately empowers an unprincipled and arbitrary will of a simple majority. Otto Kirchheimer, “Remarks on Legality and Legitimacy” 67. 21

  Cf. Schmitt, Legality and Legitimacy 95.

22

  Schmitt suspected that many jurists who had openly committed to Equal Chance and democratic value-​neutrality would actually practice a more constrained version of constitutional democracy. That is, they would compromise their open commitment and agree there were implied limits to constitutional change. Specifically, Schmitt argues that Richard Thoma, one of his stronger critics in Weimar, admitted that Schmitt’s own arguments to limit the scope of Article 76 would become legitimate if an illiberal and antidemocratic party reached the democratic threshold necessary to amend or revolutionize the core of the constitution. Ibid 47–​8. Similarly, Kirchheimer describes (in somewhat polemical terms) how Schmitt’s understanding of the basic justification of the Second Principal Part of the Weimar Constitution required the abrogation of Article 76. See Kirchheimer, “Remarks on Legality and Legitimacy” 74. 23

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status.24 They would result in “system suicide.”25 Like Kierkegaard’s aesthete, Schmitt thought the commitment to Equal Chance actually abandons the political decision to other forces: in this case, movements willing and committed to deciding and acting politically—​now augmented by the technical power of the mechanized state and relativized constitution. Those who interpreted Weimar as fundamentally committed to democracy could find no principled reason for excluding movements or parties on the basis of their values. Prior exclusion was inconsistent with the commitment to democracy. So they were compelled by their commitment to accept the legitimacy of any movement founded on any commitment. Schmitt sought to defend Weimar “from [this] form of jurisprudence that refused to pose the question of the friend and enemy of the constitution” by forcing that very question on its defenders.26 He wanted to force Weimar’s liberal democrats to recognize the need to commit to a political status.27 And he wanted to force liberal democrats to recognize that democracy could not be that basic commitment. It could only operate within the framework of another, different constitutional commitment that created a definite political status. b.  The counter-​constitution: basic rights The inability of democracy to serve as a basic decision was not an insurmountable problem, Schmitt thought, because the Weimar Constitution already contained a second, Counter-​Constitution. He argued that Weimar’s Counter-​Constitution provided a viable political decision and a “system of substantive meaning.”28 Schmitt wrote Now, if in the knowledge that the Weimar Constitution is two constitutions, one chooses between them, then the decision must fall for the principle of the second constitution and its attempt to establish a substantive order. The core of the Second Principal Part of the Weimar Constitution deserves to be liberated from self-​contradictions and compromise deficiencies and to be developed according to its inner logical consistency.29  Schmitt, Legality and Legitimacy 29; Schmitt, Constitutional Theory 76. Kirchheimer seems to agree with Schmitt that democracy could not replace a substantive political decision, writing that “[the Weimar Constitution] fell prey to the misconception that the principles of democracy alone constitute the principles of a specific social or ideational order . . . [The fathers of the Weimar Constitution] thought that democratic constitutional institutions could be a substitute for a political program  .  .  .” Otto Kirchheimer, “Weimar—​and What Then?” in Frederic S. Burin and Kurt L. Shell (eds), Politics, Law, and Social Change:  Selected Essays of Otto Kirchheimer (Columbia University Press, 1969) 72–​3. Kirchheimer also analyzes how Schmitt rejects the viability of Equal Chance as a stable constitutional commitment. Kirchheimer, “Remarks on Legality and Legitimacy” 73–​4, 77–​81. 24

25

 Schmitt, Legality and Legitimacy 48, 58.

27

  Ibid 46, Cf. 57–​8; Cf. Paul Noack, Carl Schmitt: Eine Biographie (Propylaen 1993). Cited from Cristi 36–​7.

28

 Schmitt, Constitutional Theory 201–​2, Cf. 167–​252; Schmitt, Legality and Legitimacy 42, 53.

29

 Schmitt, Legality and Legitimacy 94.

 Ibid 95.

26

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This Second Principal Part defined Weimar’s system of basic rights. Like Weimar’s other anti-​positivists, Schmitt argued that a commitment to basic rights did what democracy could not: it provided Weimar with an Absolute State and Absolute Constitution. Basic Rights could genuinely serve as a political decision, generate an enduring political status, and clearly distinguish Friends and Enemies of the public order.30 The decision contained in Weimar’s Counter-​Constitution was the decision to be a bourgeois Rechtsstaat and it was centered in the articles guaranteeing individual basic rights. Schmitt wrote that “the type of basic rights determining the Weimar Constitution were—​in the absence of a clearly opposed decision—​ individual civil liberties of the bourgeois Rechtsstaat based on the freedom and equality of the individual.”31 Schmitt repeatedly argued that the Weimar Constitution contains a political decision to be a bourgeois Rechtsstaat, which was above all oriented by its commitment to individual liberty.32 As discussed in Chapter 1, Schmitt argued the bourgeois Rechtsstaat politicized liberal metaphysics. The transcendent “truth” orienting the bourgeois Rechtsstaat is the relative rationalism of liberal metaphysics, constitutionally enacted through basic rights. He wrote, the “sense and goal, the telos [of the bourgeois Rechtsstaat], is in the first instance . . . liberté, protection of the citizen against the misuse of state authority.”33 Describing the meaning of basic rights in a bourgeois Rechtsstaat, Schmitt wrote the declaration of basic rights means the establishment of principles on which the political unity of the people rests and whose validity is recognized as the most important presupposition of the fact that this unity always produces and forms itself anew. It also means that the integration of the state unity occurs.34

Tellingly, this description reproduces the theoretical core of Schmitt’s definition of the Absolute Constitution. Recognizing basic rights as Weimar’s political decision, Schmitt thought, would clarify both who Weimar’s enemies were and what constitutionality 30

  Ibid 46–​7, 93–​4.

 Carl Schmitt, “Grundrechte und Grundpflichte” in Carl Schmitt (ed), Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 Materialien zu einer Verfassungslehre (Duncker & Humblot 1958) 206–​7; Carl Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” in Carl Schmitt (ed), Verfassungsrechtliche Aufsätze aus den Jahren 1924–​1954 Materialien zu einer Verfassungslehre (Duncker & Humblot 1958) 169. See also Carlo Galli, “Carl Schmitt’s Antiliberalism: Its Theoretical and Historical Sources and its Philosophical and Political Meaning” (1999–​2000) 21 Cardozo Law Review 1597, 1598–​600. 31

  For example, Schmitt, Constitutional Theory 169–​70; Cf. ibid 169; Schmitt, Legality and Legitimacy; Carl Schmitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre ( J. C. B. Mohr (Paul Siebeck) 1930); Schmitt, “Grundrechte und Grundpflichte” 191ff, 206ff, 226–​7; Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 158ff. 32

33

 Schmitt, Constitutional Theory 170; Cf. ibid 169; Cf. Schmitt, Legality and Legitimacy; Schmitt, Hugo Preuss.

34

 Schmitt, Constitutional Theory 200.

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consisted in. Both the NSDAP (the Nazi party) and the KPD (the Communist party) were openly committed to abrogating Weimar’s bourgeois basic rights—​their expressed political goals were incompatible with Weimar’s “sacred” commitment to basic rights.35 From Schmitt’s perspective, these parties were unambiguously Enemies of Weimar. Their legislative aims were incompatible with its basic political status. Accordingly, they were unconstitutional goals. Schmitt even argued that from this perspective, an attack on basic rights would be high treason [hochverräterischer Angriff], because it was an attack on the constitutional components that had determined the state’s political life.36 To preserve and guard the constitution, then, meant ensuring the continuity of this basic commitment, including taking any action necessary to prevent parties and movements from undermining them. Schmitt’s theory departs from typical justifications of liberal states. Lübbe argues that, for Schmitt, liberalism could work only when the state was its active guarantor.37 Only the state can guarantee individual liberty in the face of powerful organized social and political forces. As earlier chapters have discussed, Schmitt argued most liberal theories presuppose individual freedom precedes the state and for that reason was in principle unlimited (based on what he described as “justice-​oriented natural law”).38 Schmitt criticized this approach, arguing it only exacerbated the confusion over juridical authority. He argued instead Hobbesian “scientific natural law” alone could solve these problems. According to this form of natural law, the individual was not prior to the state and whatever rights individuals may exercise concretely were artificial—​something the state provided through its concrete order and guaranteed. In this context, Croce and Salvatore have rightly argued that Schmitt theorizes “an organicist conception of basic rights” that subsumes individual rights under the identity of the political community.39 Hofmann argues that Schmitt’s communitarianism could not recognize individuality.40 True. Individuals had no juridical status outside of the state’s public order, let alone natural rights according to Schmitt. Schmitt’s political existentialism is most clear in those moments when he reminds us  Schmitt, Legality and Legitimacy 48–​9, 53.

35

 Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 153–​4; Cf. Schmitt, Constitutional Theory 165–​6. 36

 Lübbe 439.

37

  Carl Schmitt, Die Diktatur: von den Anfängen des modernen Souveränitätsgedanken bis zum proletarischen Klassenkampf (Duncker & Humblot 1989) 21, 118–​19; Carl Schmitt, Dictatorship:  From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Michael Hoelzl and Graham Ward trs, Polity 2013) 16–​17; Schmitt, Constitutional Theory 112–​13. 38

  Mariano Croce and Andrea Salvatore, The Legal Theory of Carl Schmitt (Routledge 2013) 27.

39

  Hasso Hofmann, Legitimität gegen Legalität: der Weg der politischen Philosophie Carl Schmitts (Duncker & Humblot 1992) 194–​5. 40

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that whatever public order exists is artificial, a human product that requires continual upkeep to maintain. But—​even though the state preceded its subjects—​its basic purpose could nevertheless be the guarantee of liberal individual freedoms. Bhuta writes that, according to Schmitt’s state theory, the liberty modern states generate is a fragile achievement and “the face of the state never disappears but at most lies dormant, emerging as the means of combatting existential threats to the political order.”41 It is only through the state and its constitution of its citizens as rights-​bearers that individual freedom can be said to exist at all. For Schmitt, Recht was nothing if it is not also real—​this fundamental principle held for liberal democracy just as it held for any other normative ideal. And his conception allowed liberals to recognize liberal democracy as a political commitment and a value worth fighting for—​making them responsible for the preservation of their political identity. c.  Classifying basic rights Schmitt argued that the Weimar Constitution suffered from another internal contradiction. Schmitt argued that the Second Principal Part of the Weimar Constitution suffered from pleonexia.42 It contained a vast array of rights, ranging from basic individual liberties to economic rights to religious and educational freedoms to rights of members of the civil service. It was not clear which rights had priority when they conflicted, such as participatory rights and liberty rights or property rights and rights to social welfare.43 He argued that Preuß’ original plan for the constitution had been diluted by subsequent additions of more and more rights, representing diverse and in some ways incoherent interests.44 Because all rights in the Second Principal Part appeared to be equally basic from the perpective of statutory positivism, there did not seem to be any way to reconcile conflicts among them. The most acute conflict was between a set of bourgeois rights and a set of socialist rights. If the Second Principal Part was to establish a substantive order, Schmitt argued that first its internal oppositions needed to be clarified.   Nehal Bhuta, “The Mystery of the State: State-​Concept, State-​Theory and State-​Making in Schmitt and Oakeshott” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 37. 41

  Schmitt, “Grundrechte und Grundpflichte” 206; Schmitt, Legality and Legitimacy 94. I am indebted to David Dyzenhaus for urging me to address the question of which basic rights were the core of Schmitt’s theory. 42

  Schmitt, “Grundrechte und Grundpflichte” 196–​7.

43

 Schmitt, Legality and Legitimacy 50; Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 140; Cf. Schmitt, Constitutional Theory 203ff. 44

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Against the positivist equivocation of all the rights within the Second Principal Part, Schmitt argued that rights should only be considered basic when they “belonged to the foundation of the state itself and were therefore recognized in the constitution as such.”45 He goes on to add that “It is not as if one could—​without any consideration of the overall structure of a community—​make any arbitrary rights into basic rights and raise any set of interests into the realm of the sacred and inviolable.”46 The set of rights classified as basic ought to define the underlying status of that order. To illustrate this point, he contrasted the basic rights of a feudal or corporate monarchy (privileges, immunities, exemptions, and feudal liberties) with the civil liberties of a liberal constitutional state with the socio-​economic entitlements of the socialist class state. In each case, basic rights were those rights that furthered the political goals of that state. In addition, it was not clear that some of the rights in the Second Principal Part should be elevated to the status of rights at all. Schmitt frequently uses one example to illustrate this point: the right of civil servants to their papers guaranteed by Article 129. Although Schmitt had no principled objections against allowing civil servants to see their papers, he was certain that this was neither an authentic basic right nor could it be the purpose or end of the state, unlike for example freedom of the person (Article 114).47 Statutory positivism could offer little guidance on which rights ought to be considered basic. All constitutional articles were equally valid law from its perspective and as such all held the same constitutional status. Moreover, Schmitt argued, rights like those contained in Article 129 were far easier to enforce because of the simplicity of their content—​whereas Weimar’s authentic basic rights either hinged on parliament’s positive legislative acts or were “mere program,” a normative aspiration with no concrete legal validity at all. In sum, between the excessive number of rights written into the constitution and the prevailing interpretation of statutory positivism in Weimar, it was not immediately clear which rights should be basic and define Weimar’s political status. To clarify this question, Schmitt broke down the rights outlined in the Second Principal Part according to the following typology.48

  Schmitt, “Grundrechte und Grundpflichte” 190.

45

 Ibid.

46

 Schmitt, Legality and Legitimacy 79; Cf. ibid 43, 52; Schmitt, Dictatorship xxxiv(ff ); Schmitt, Constitutional Theory 80–​1; Schmitt, “Grundrechte und Grundpflichte” 201; Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 143. 47

 Schmitt, Constitutional Theory 209.

48

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Table 6.1  Typology of Rights

As discussed in Chapter 1, Schmitt argued the purpose of the bourgeois Rechtsstaat was to guarantee individual liberty. To Schmitt, this meant generating a “negative status” in which no individual was subject to another’s will—​be it a public or private power. The guarantee of this negative status was instrumental for liberal metaphysical goals of relative truth and right. Basic rights and the separation of powers (the distributional and organizational principles) were two constitutional mechanisms the state employed to better guarantee individuals’ negative status. For rights to be basic, then, Schmitt argued they must be directly related to the realization and guarantee of an individual’s negative status. Because the rights in the right two columns were claims on the state—​ rather than against it—​Schmitt argued they were not basic rights. They did not belong to the foundation of the state itself and should not therefore be recognized in the constitution as basic rights. Schmitt’s distinction does not preclude the state and constitution from granting other rights—​such as those from the other columns. Its purpose was to establish where rights stand in relation to one another, particularly those pertaining to the state’s political status and those that did not.

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Having ruled out claims on the state as basic rights, Schmitt argued that only those rights falling in the left two columns above were part of the foundation of the Weimar state as a bourgeois Rechtsstaat. Only the left two columns were authentically basic rights. Of them, he argued that those rights falling under the left-​most column were unambiguously basic rights (the rights of the isolated individual, such as freedom of conscience and rights to private property). Those rights in the second column from the left (rights of individuals in connection with other individuals) were something of a grey area in his typology. In 1928, Schmitt wrote that they “must be considered genuine basic rights as long as the individual does not leave the nonpolitical condition of mere social relations and so long as only the free competition and the free discussion of the individual is recognized.”49 Because these rights can be exploited by private powers, Schmitt believed there are cases where their use may need to be restricted.50 He seemed to suggest that the state’s duty was to prevent individual associative rights from making two leaps: from social to political and from an individual right to a group right. Yet, although Schmitt’s broad categories are helpful in making sense of which rights are more fundamental for liberal states, some of his particular decisions are confusing. Above all, his categorization of the right to equality before the law (Article 109) as a political right rather than an authentic basic right is a mistake. A charitable reading could argue he did so because Article 109 includes other rights related to citizenship—​but even so, this argument does not make much sense. Equality before the law seems above all to protect individuals from the (arbitrary) legislative power of the state. Moreover, it is not clear whether or how equality before the law could be turned against the constitution, which could justify excluding it from the set of authentic basic rights. In the end, although Schmitt’s typology is useful for making distinctions among rights-​ types, where specific rights ought to be placed should adhere to the principled distinctions in some cases when they diverge from Schmitt’s categorizations. d.  Institutional guarantees and guarantees of institution Schmitt would revise his 1928 rights typology a few years later by introducing the categories of institutional guarantees [institutionelle Garantien] and guarantees of institution [Institutsgarantien].51 Schmitt wrote that individual liberty  Ibid 203.

49

 Ibid 204.

50

 Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 155; Schmitt, “Grundrechte und Grundpflichte” 207–​16. Although Schmitt made other alterations to the four-​point typology from his Constitutional Theory, he thought the decisive change was the broadened significance these two types played within his constitutional theory. See Mariano Croce and Andrea Salvatore, “After Exception: Carl Schmitt’s Legal Institutionalism and the Repudiation of Exceptionalism” [2016] 29 Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law 410 51

The full typology included seven types: 1. “Liberties of the individual, namely of the conceptually isolated individual or of individual entering into relation with other individuals: Articles 114,

186

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is not a legal institution, not an organization, and not an establishment; it can still less be an organized and formed institution of public law. Its contents are not normalized by the state; it does not exist “according to the statute”; it cannot, if it is not to be a bogus phrase, stand under a reservation, whose completion sits at the discretion of another.52

By this, he meant that individual liberty held an extremely fragile existence as public law, it could exist only as a “negative status” for individuals created by the state.53 The basic rights did not guarantee individual liberty directly. Although they aim to create liberty from the state and other powers, basic rights only generate claims to something after that liberty has been violated.54 The status they create is, by itself, vulnerable. For this reason, Schmitt argued that the basic rights of the bourgeois Rechtsstaat are best guaranteed when they are supported by what he calls connecting and complementary guarantees [Konnex-​ und Komplementärgarantien].55 Croce and Salvatore have recently shown how central these connecting and complementary guarantees were to Schmitt’s thought as he made his turn toward “concrete order thinking” in late Weimar.56 They analyze how Schmitt conceived of institutions as containing relationships that cannot be reduced to positive laws and legal code but nevertheless play an important legal role.57 Schmitt came to recognize how essential institutions were as bodies mediating the individual and the state.58 He described them as a type of constitutional safeguard that existed between basic rights and constitutional self-​determination, between the static political commitment and the dynamic legislative process.59 Schmitt defined this type of guarantee as in part a product of a guarantee of constitutional law60 and partly the product of a preexisting concrete institution of public or private law that was

115, 117, 118, 123, and 124.” (Schmitt adds, “Only these civil liberties are basic rights in the strict sense of the bourgeois Rechtsstaat.”) 2. “Political rights of the citizen,” Articles 22, 128, 125, and Art. 160. (He adds “These are the fundamental rights correlated to the organizational part of a democratic constitution.”) 3. “Rights of individuals to make positive social or cultural demands,” Articles 151, 119, 142, 150, 158, and 164. 4. “Rights and claims of public bodies as such against the state,” such as Articles 137 and 138. 5. Institutional guarantees, i.e. constitutional guarantees of a public legal institution [öffentlich-​rechtlichen Institution] as such,” such as Articles 128–​130, 139, 142, and 149. 6. Guarantees of institution were “traditionally determined norm-​complexes and legal relationships,” such as Articles 153, 154, and 119. 7. “Guarantees of the status quo of a particular legal or factual situation or of certain claims, for example, Articles 138, 173, 174, and 178.”   Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 167.

52

  Schmitt, “Grundrechte und Grundpflichte” 207.

53

 Ibid.

54

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 167, 171.

55

  Croce and Salvatore, The Legal Theory of Carl Schmitt; Croce and Salvatore, “After Exception:  Carl Schmitt’s Legal Institutionalism and the Repudiation of Exceptionalism.” 56

  Croce and Salvatore, The Legal Theory of Carl Schmitt 39.

57

 Ibid 51.

58

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 149.

59

 Ibid 155.

60

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“defined and limited and that completes certain tasks and achieves certain goals.”61 These guarantees existed to protect and safeguard these institutions from the power and interference of the legislature. Schmitt broke down these connecting and complementary guarantees into two subtypes: institutional guarantees and guarantees of institution. He argued the guarantee of institution pertained to institutions of private law and “above all the guarantee of property as a legal institution in Article 153 of the Weimar Constitution.”62 Guarantees of property rights were intended to further the broader commitment to individual freedom. Schmitt also argued that the guarantee of property rights settled the question of whether communism, in the sense of bolshevism, or more precisely legislation and amendments to the constitution that aimed to realize a communist state was constitutional. They were not.63 In contrast to the guarantee of institution, the institutional guarantee pertained to institutions of public law. Schmitt provided several examples of such institutional guarantees within the Weimar Constitution:  Articles 127 (local communities right to self-​government), 142 (freedom of teachings), and Articles 128–​130, which cover the civil service.64 Notably, one example of an institutional guarantee is the article Schmitt frequently criticized: the right of a civil servant to his or her papers (Article 129). The clearest example Schmitt provided of an institutional guarantee serving as a connecting and complementary guarantee is of Article 137 (freedom of association to form religious societies is guaranteed), which he argued buttressed “the freedom of belief and conscience and the ‘undisturbed practice of religion’ guaranteed by Article 135.”65 Croce and Salvatore argue that Schmitt no longer believed that “the constitution [was] supported by its institutional guarantees, but rather [it was] comprised of its own institutional guarantees.”66 That is, the aggregate of preexisting substate institutions comprised the core of the constitution. While this type of guarantee is doubtlessly important to Schmitt’s constitutional theory, this overstates the importance of institutional guarantees to Schmitt’s thought. Were that claim correct, the constitution would be reduced to a patchwork of different institutions that, while different in form, amounted to the same sort of facticity Schmitt so frequently criticized. The constitution  Schmitt, Constitutional Theory 208; Cf. Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 160. 61

 Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 153; Cf. Croce and Salvatore, The Legal Theory of Carl Schmitt 27. 62

  Schmitt, “Grundrechte und Grundpflichte” 189f.

63

 Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 149ff; Schmitt, “Grundrechte und Grundpflichte” 213–​15; Cf. Croce and Salvatore, The Legal Theory of Carl Schmitt 27–​8. 64

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 171.

65

  Croce and Salvatore, The Legal Theory of Carl Schmitt 28.

66

18

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was more than the sum of the laws and institutions that made it up. He believed it produced those institutions and harmonized them in light of its substantive end. Schmitt concluded his 1931 “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” with a discussion of the tension between civil liberties and institutional guarantees, which he illustrated through the institutional guarantee of a free press.67 He argued that, although the press was not guaranteed institutionally by the Weimar Constitution, the civil liberty of freedom of opinion (Article 118) has an institutionally connecting safeguard through statutes in force [reichsgesetzeskräftig] establishing valid press rights. However, Schmitt argued, these guarantees had the unintended consequence of establishing the press as “a privileged industry [ein privilegiertes Gewerbe]” that can exert an enormous influence over German individuals.68 As a result, freedom of the press can be used to manipulate individual expression and undermine individual liberty—​rather than guaranteeing those values through concrete institutions. Schmitt concluded “institutional guarantees have a life of their own [sich verselbständigen] and follow their own developmental law, through which those institutions become ever more independent, ever and ever better ‘secured’ against the state and state organizations and ultimately create new types of ‘contractually secured’ public bodies.”69 Schmitt’s concerns about institutional guarantees developing a life of their own, and in the process undermining the basic commitments of the bourgeois Rechtsstaat, shows that his work on basic rights in 1931 and 1932 was a continuation of his discussion in 1928. In his Constitutional Theory, Schmitt expressed similar concerns about when associative rights such as freedom of the press (the second column above) become a threat to individual liberty and public order. His introduction of institutional guarantees allowed him to better articulate the concerns he expressed a few years earlier. His discussion of institutional guarantees also reflects his broader concerns about the rationalization of the state. Positivism lacked the theoretical tools to recognize that institutional guarantees could develop a life of their own and undermine rather than promote liberty once disconnected from the state’s unifying reason. Croce and Salvatore rightly draw attention to Schmitt’s belief that “one can catch a glimpse of the essence of the constitution itself in institutional guarantees.”70 Because of the relative weakness of civil liberties, Schmitt 67

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 169–​71.

  This argument plugs back into Schmitt’s concerns about the dangers of concentrations of private powers, translated into political movements, and their power to manipulate the German people. See Chapter 1, Section II.c. 68

69

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 171.

 Ibid 172.

70

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argued institutional guarantees and guarantees of institution played an important role as connecting and complementary guarantees in buttressing civil liberties. But Schmitt also recognized their potential to establish privileged institutions that could threaten the basic political commitments of the constitution. They could create a negative status for private associations and other powers—​which could then become a means to oppose individual liberty. For this reason, Schmitt defended the state as the juridically “higher” institution, “the concrete order of orders, the institution of institutions.”71 Yet with institutional guarantees, Schmitt also limited the state’s ability to interfere with institutions. Unfortunately, he offered little clarity on how to reconcile this tension in his thought. It may be that he saw no way to navigate this dilemma except to recognize that in some cases exceptions to institutional guarantees would occasionally be necessary and the state’s position as last authority must prevail.

2.  guaranteeing basic rights Having determined that Weimar’s positive political decision could only lay in the Second Principal Part of the constitution and that only the rights guaranteeing individuals a negative sphere were basic rights, Schmitt thought he had provided a basis to define objectively who Weimar’s Enemies were. Parties or movements hostile to and seeking the abrogation of the liberty rights of the individual were by definition opposed to the Weimar Constitution in its Absolute sense. They were Enemies of Weimar’s political status. In the face of the radical politicization of society, Schmitt believed that guaranteeing the continuity of that status required more robust constitutional defenses than were found in the nineteenth-​century state and constitution. Drawing on his theory of the Absolute State and Absolute Constitution, Schmitt theorized several constitutional mechanisms to do so. One, discussed in the last chapter, was the restoration of the classical conception of dictatorship. Another suggested by the role dynamic integration played in his theory of the Absolute Constitution was some form of civic education. The others were the guarantee of the constitution (entrenchment of that political status), party bans, constraints on negative majorities, and a more rigid federation of the state. a.  The guarantee of constitution Schmitt’s theory of the Absolute Constitution distinguished the constitution from constitutional laws.72 Neumann, Maus, and Berthold describe   Carl Schmitt, On the Three Types of Juristic Thought ( Joseph W. Bendersky tr, Praeger Publishers 2004) 79.

71

 Schmitt, Legality and Legitimacy 95ff.

72

190

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how Schmitt conceived the Absolute Constitution as a static institution that could not be altered.73 Amendment procedures could not be used either to create law opposed to it or to alter articles that concretized it.74 In a surprising passage, Schmitt even argues that, were basic rights interpreted as Weimar’s “substantive constitutional guarantees,” the content of its Absolute Constitution, they would become “dictator-​proof.”75 Schmitt develops this argument in a passage distinguishing the guarantee of constitution [Verfassungsgarantie] and the guarantee of constitutional law [verfassungsgesetzliche Garantie]. He writes, One can correctly speak of a guarantee of constitution [Verfassungsgarantie] only if the constitution itself is identified with the guarantee, which it provides, and a breach of the guarantee means by implication a violation “of the constitution itself,” when an attack on the guaranteed object is an attack on the constitution itself. So one could say of the nineteenth century constitutions that they intend to guarantee [gewährleisten] the basic rights of the bourgeois Rechtsstaat, individual liberty, and private property  .  .  .76 A  second type of guarantee is available if the difficult alterability [Abänderbarkeit] of constitutional provisions is used in order to secure and to deprive access to particular interests or rights, which one holds for some reason worthy of protection, by means of constitutional laws made difficult to alter by the ordinary legislature. In contrast to the constitution guarantee [Verfassungsgarantie], this is a guarantee of constitutional law [verfassungsgesetzliche Garantie]. It is formal in the sense that it does not itself need to have an objective connection to the basic decisions [Grundentscheidungen] of the constitution and, as it is characteristic for this concept of formality [des Formalen], has a purely political sense . . . In any case, the guarantee of constitutional law is called a guarantee entirely because of its difficult alterability, thus only with regard to protecting it against the legislature, i.e. against a parliamentary majority.77

Schmitt conceived of both guarantees as a form of constitutional entrenchment. The Guarantee of Constitution entrenched the super-​positive Absolute Constitution by making the articles of the constitution that concretized   Franz L. Neumann, “The Social Significance of the Basic Laws in the Weimar Constitution” (1981) 10 Economy and Society 331; Maus 107–​10; Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 50, 52. 73

74

 Schmitt, Constitutional Theory 170, 197; Schmitt, Legality and Legitimacy 49, 57.

 Schmitt, Legality and Legitimacy 77; Cf. Schmitt, Dictatorship 175f; Carl Schmitt, “The Dictatorship of the Reich President according to Art 48 of the Reich Constitution” (2011) 18 Constellations 299, 313. 75

  Schmitt then qualifies that basic rights were exposed to the reservation of simple legislation by parliament. But Schmitt elsewhere rejects this statutory positivist argument that the reservation of simple statutes may validly interfere with basic rights, noting that in the nineteenth century statutory positivism, parliamentary democracy, and a political commitment to the bourgeois Rechtsstaat could successfully coincide because of a deeper commitment to the rationalistic commitments of the state and constitution and the constraints on participation. 76

77

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 153–​5.

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that basic status legally unalterable. Because any alteration to the Absolute Constitution would be an illegitimate attack upon it, Schmitt argued that this form of entrenchment must be absolute. The only way to bring about constitutional change at this level would be to revolutionize those articles, and by extension the Absolute Constitution. The Guarantee of Constitutional Law was a less rigid form of entrenchment. Schmitt argued that it was conceptually linked to his theory of institutional guarantees.78 This weaker form of entrenchment could include rights or institutional guarantees not directly related to that basic status. It existed to better guarantee the Absolute Constitution and did so by making those articles of the constitution connecting and complementing its basic political status more difficult to amend—​but not unalterable. Schmitt offers a concrete example of this distinction by contrasting basic rights with prohibition.79 He defined the guarantee of constitution of the bourgeois Rechtsstaat as basic rights promoting individual liberty, as described in the section above. In this example, he argued that the sort of basic rights essential for guaranteeing the essence of the bourgeois Rechtsstaat were those enumerated by the Bill of Rights of the U.S. Constitution. He contrasts those basic rights with the enactment of the 19th Amendment to the U.S. Constitution. Schmitt argued the enactment of prohibition was a questionable case where law obtained the status of this second type of guarantee, the guarantee of constitutional law, which draws on his concerns about democratic constitutional change. Parliamentary majorities could and did abuse the power of this type of guarantee to “anchor” their interests into the constitution and thereby politicize them. In the case of the 19th Amendment, Schmitt drew out potential further consequences by arguing “an opposed alcohol-​friendly trend can exploit the situation in a similar way to impose a prohibition on the prohibition. The opposition to vaccination, the opposition to capital punishment, etc., etc.”80 Unlike the guarantee of constitution, Schmitt had mixed feelings about the power of guarantees of constitutional law to promote the Absolute Constitution. Although they could support the guarantee of constitution, they could also serve as a basis for constitutional revolution or for entrenchment of interests unrelated to that basic decision, which could obscure what the decision of the constitution was or even undermine it. b. Party bans Berthold and Korioth discuss how Schmitt’s theory of the Absolute Constitution could justify party bans. Although Weimar lacked explicit mechanisms for banning parties, a combination of Article 48.2 and the  Ibid 155.

78

79

 Ibid 154.

80

 Ibid.

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guarantee of constitution, in conjunction with the explicit goals of extremist parties to legally revolutionize the Absolute Constitution using its amendment procedure, could serve as that constitutional basis.81 Schmitt at points suggested that a ban would be justifiable if a party could be clearly identified as an Enemy of the constitution. For the bourgeois Rechtsstaat, the justifiability of party bans turned on the distinction between democratic-​political rights and basic rights, as expressed in the above typology. Schmitt defined the political purpose of the bourgeois Rechtsstaat as the guarantee of individual liberty. The participatory rights of democratic states, such as equal access to public office, were not expressions of that basic political decision. Although Schmitt’s distinction did not deny their status as rights, it did define political rights as qualitatively different from and subordinate to those basic rights. If individuals or groups exploited democratic-​political rights to undermine basic rights, their political rights could legitimately be constrained or outright denied.82 The goal of revolutionizing the Absolute Constitution was a basis for restricting the participatory rights of parties and movements. In this regard, Schmitt specifically singles out the KPD and NSDAP because of their opposition to Weimar’s basic rights.83 Yet limiting democratic-​political rights would not affect an individual’s basic liberty rights. For this reason, the infringement of participatory rights was consistent with the basic commitments of the bourgeois Rechtsstaat. So although compromising participatory rights was undesirable and an extreme solution to domestic politicization, it could be justified in an emergency. Party bans were considered as a solution to Weimar’s problems in October 1932 (as part of the Papen-​Gayl Plan).84 Von Schleicher had his staff run a simulation (the “Ott Simulation”) to determine whether the military would be able to control the paramilitary forces of the extremist parties if the ban provoked an uprising. They concluded it was unlikely the military would not be able to contain the Nazi and Communist militias and the plan was shelved. c.  Limitations on negative majorities By late 1932, Schmitt had decided party bans could not resolve the Weimar crisis. This was in part because of the outcome of the Ott Simulation. The ban would come too late and might only generate greater instability. But Schmitt had also come to believe that a party ban might backfire and allow  Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 33f, 52–​3; Stefan Korioth, “Rettung oder Überwindung der Demokratie—​Die Weimarer Staatsrechtslehre im Verfassungsnotstand 1932/​33” in Christoph Gusy (ed), Demokratisches Denken in der Weimarer Republik (Nomos Verlagsgesellschaft 2000) 526. 81

82

 Schmitt, Legality and Legitimacy 47–​51.

84

 Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 39–​41, Cf. 12–​13.

 Ibid 48.

83

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the Nazis and Communists to portray themselves as the defenders of the Weimar Constitution, due in part to the confusion caused by the statutory positivists’ insistence on proceduralism.85 He thought Weimar’s best hope lay in countering the ability of the extremist parties to abuse the vote of no confidence in order to undermine Weimar from within. Accordingly, he sought a constitutional means to contain the extremists by reinterpreting the valid use of Article 54. Drawing on his observations of the 1926 Luther and Marx cabinets, Schmitt had already criticized the vote of no confidence in his 1928 Constitutional Theory.86 He warned then of the potential danger of wielding a vote of no confidence to dissolve the governing cabinet [Reichsregierung] without being able to put forward any viable alternatives.87 Schmitt also realized then that in the hands of extremist parties too weak to prevail outright but strong enough to coordinate with other parties as a “negative majority,” a vote of no confidence could be used to prevent any effective government from occurring at all.88 The problem was that there was nothing in Article 54 to guarantee that those invoking it had a positive platform and actually intended to use it to govern.89 Invoking Article 54 could legally be used as “an act of pure obstruction.”90 Yet Preuß, Schmitt thought, never intended to constitutionalize parliament’s “right” to turn Weimar into a governmentless state.91 A negative exercise of the vote of no confidence was not a reasonable interpretation of Article 54 nor, by putting a constitutional statute prior to its substance, was it consistent with Schmitt’s theory of the Absolute Constitution. Yet the prevailing interpretation of public law in Weimar left no alternative but to abide by the outcome of a vote of no confidence, regardless of whether it aimed to replace a dysfunctional cabinet or to decapitate the Weimar state. In just a few years, Schmitt’s 1928 warning about the abuse of Article 54 would be confirmed. Extremists demonstrated they were comfortable with exploiting the vote of no confidence to obstruct government simply to further invalidate constitutional democracy. The Nazis and Communists used the threat of Article 54 to debilitate and delegitimate Weimar and validate their political claims that liberal democracy was a failed project and that it was time to try something different.92 Korioth discusses how the impasse and deliberate obstructionism they created within the Reichstag prompted discussions of abolishing Article 54 at that time.93 But to do so presupposed

 Ibid 65.

85

 Ibid 59.

86

 Schmitt, Constitutional Theory 364.

87

  Carl Schmitt, Der Hüter der Verfassung (4th edn, Duncker & Humblot 1931) 87–​91.

88

 Schmitt, Constitutional Theory 365.

89

 Ibid 366.

90

 Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 45, 60–​1.

91

 Ibid 88.

92

 Korioth 510.

93

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a parliament capable of exercising Article 76 to amend the constitution, in which case there would have been no problem of negative majorities in the first place. Berthold argues that Schmitt theorized a solution to the abuse of the vote of no confidence that was constitutional. According to his theory of the Absolute Constitution, a vote of no confidence unaccompanied by a positive governing alternative was inconsistent with the (formal) purpose of a state and constitution. Deliberate obstructionism was unconstitutional. In such circumstances, Schmitt argued, the president—​as the other guardian of the constitution—​was under no obligation to recognize it.94 The same went for purely negative invalidations of emergency decrees and ordinances.95 According to a strict positivist reading of the constitution, Schmitt’s alternative theory would be a violation of the constitution. But Schmitt would respond that adhering to the positivist reading too would be a violation of the constitution.96 It was a dilemma. In the face of this dilemma, Schmitt argued, it was far better to preserve the Absolute Constitution than the Relative Constitution, the spirit rather than the letter. He concluded that the president, according to his oath (Article 42), had a duty to preserve the underlying Absolute Constitution against legal insurrection. Schmitt’s interpretation would have left parliament intact and the constitution unaltered, but it would have compelled parliament to decide on its level of involvement in Weimar’s government. If parties in parliament were uninterested in or incapable of governing, Schmitt thought that freeing the cabinet to govern was the best solution. And there were precedents, he argued, in the 1920s and 1930s, such as the Brüning government.97 Rather than leave Weimar at the mercy of its Enemies, Schmitt hoped to buy Weimar time by freeing its governing cabinet to respond to its emergencies until parliament recovered. d.  The federated state Finally, Schmitt cautioned that an unclear political and legal relationship between the German states, such as Prussia, Bavaria, and Nord Rhine-​ Westphalia (Länder) and the Weimar state (Reich) could be another source of instability for the Weimar state and constitution. Seiberth describes Schmitt’s concern that the German states were walls behind which extremist parties could hide and

  Peter C. Caldwell, “Controversies over Carl Schmitt: A Review of Recent Literature” (2005) 77 The Journal of Modern History 357, 372; Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 58. 94

95

 Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 61.

97

  Ibid 40, 76.

 Ibid 65.

96

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195

consolidate their power.98 Kennedy discusses precedents of state-​federal conflicts from 1922 and 1923 that may have informed Schmitt’s concerns.99 In 1922, the Bavarian state refused to obey federal law. The situation was serious enough that the military was mobilized. In 1923, the Saxon state (controlled at the time by communists) did the same, and its actions prompted Bavaria to again defy Weimar’s sovereignty. After Weimar declared a state of emergency, the Bavarian government assumed control over the federal army stationed in Bavaria. And, as Kennedy writes, “Behind these maneuvers against the central government and the Reich as such were the political forces allied with the Nazis and attempted to overthrow the government in the Hitler-​putsch a few days later.”100 These incidents illustrated that there were reasons to be concerned about extremist parties taking advantage of the Weimar state’s relative weakness vis-​à-​vis individual German states. The unclear relationship between Weimar and its states came to a head with Prussia. The Prussian state comprised two-​thirds of all of Germany. And because the Prussian capital was also located in Berlin, Berlin actually housed two centers of government and two parliamentary bodies: the Prussian parliament and the Weimar parliament. And the Prussian police were large and strong enough to potentially constitute a militia force that could be used to further destabilize the Weimar state. Were the Prussian parliament to be seized by extremists, Weimar itself would be threatened. Prussia, Schmitt argued, had the potential to become a political and military counter-​power to the Weimar state and to turn its government into a “colossus with feet of clay.”101 Schmitt argued Prussia could not be permitted to become a counter-​ power within Weimar’s federated structure. Were the NSDAP or KPD to take Prussia, they would be in a position to directly threaten the Weimar state. By legally revolutionizing the Prussian state and constitution, they could trigger civil war in the Reich itself. And this problem would actually come to a head in the Preußenschlag.102

98  Gabriel Seiberth, Anwalt des Reiches:  Carl Schmitt und der Prozess “Preußen contra Reich” vor dem Staatsgerichtshof (Duncker & Humblot 2001) 231.

  Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press 2004) 155–​6.

99

 Ibid 156.

100

 Seiberth 217.

101

  The political pluralism in Weimar’s Reichstag was paralleled in its Länder. And although the Prussian Government had been led by the SPD until 1932, Prussia too had become a microcosm for the party political-​situation of the entire Reich. There, powerful and well-​organized political movements with affiliated paramilitary organizations confronted one another as political “enemies” committed to using any and all means to acquire the state and wield its machinery to impose their beliefs across it. And as the SPD’s base of support eroded in Prussia, support for extremist parties expanded. Schmitt’s concerns about the dynamic between Prussia and the Reich, between extremism and the state, played out in reality in the events leading up to the “Preußenschlag” of July 20, 1932. And Schmitt had the opportunity to put his 102

196

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Hofmann argues that Schmitt’s aim in the Preußenschlag was to reconsolidate the authority of the Weimar state.103 Schmitt drafted ordinances to preemptively thwart the NSDAP’s attempts to hold a legal revolution in the Prussian parliament and weaken the power Prussia could use through Weimar’s federated structure. He also advised on how to use Article 48 to unify the Weimar government and overcome opposition from both the SPD (the Social Democratic Party) and the NSDAP by collapsing the independent power of the Prussian state. Prussia, he argued, could not be permitted to become a counterpower to Weimar by falling into Nazi hands. Schmitt participated in the Preußenschlag to prevent the NSDAP from finding any new handholds in its ascent to power. He believed the Weimar government had to bypass the factional conflicts in its states if its integrity was to be maintained.104 theory into direct practice when he represented the Reich in Prussia v. Reich, the constitutional trial over the legitimacy of the Preußenschlag. The Preußenschlag installed von Papen as “Commissioner” of Prussia—​effectively ending Prussia’s independent status as a Land. Dyzenhaus argues this decree removed the last pillar of legitimate democracy in Weimar when it removed the SPD from power in Prussia (David Dyzenhaus, “The Concept of the Rule-​of-​Law State in Schmitt’s Verfassungslehre” in Oliver Simons and Jens Meierhenrich (eds), The Oxford Handbook of Carl Schmitt (Oxford University Press 2014) 16–​22; Dyzenhaus, Legality and Legitimacy 30-​7; David Dyzenhaus, “Legal Theory in the Collapse of Weimar: Contemporary Lessons?” (1997) 91 The American Political Science Review 121, 122–​7). Yet, although Prussia had been controlled by the SPD until April 24, 1932, it was not the Preußenschlag that upset the balance of power. After the April elections, the SPD no longer commanded a plurality of the vote. Instead, the NSDAP had triumphed in the elections and won a plurality. Moreover, after April, the NSDAP and the KPD commanded a majority in the Prussian Landstag. It was with the April elections that Prussia ceased to be the pillar of Weimar democracy. Sensing its loss of power, the Prussian SPD led by Braun passed an eleventh hour revision to election law that allowed it to remain in office as a “permanente Geschäftsregierung” [permanent caretaker government] to govern until a legitimate alternative coalition formed (Seiberth 43ff, 93ff; Dyzenhaus, “The Concept of the Rule-​of-​Law State in Schmitt’s Verfassungslehre” 17). This revision prompted a legitimation crisis: the NSDAP argued the SPD changed the rules of the game to keep itself in power, violating democratic neutrality and its right to the cabinet as Prussia’s largest party. The SPD counter-​argued that the NSDAP could not form a legitimate majority coalition. Although our sympathies naturally fall with the SPD, its decision to alter the electoral law did effectively kick down the ladder of democracy, changing the nature of democratic Equal Chance altogether (Cf. Caldwell, “Controversies over Carl Schmitt: A Review of Recent Literature” 369–​71). On the other hand, Braun and the SPD were right to try to find ways to keep the NSDAP out of office, recognizing the unconstitutional nature of the party. In effect, their actions were consistent with Schmitt’s own concerns about unconstitutional parties even if they did not resolve the problematic dynamic of Prussia and Weimar. As noted above, Schmitt argued that there is no duty to resign in the case of negative majorities in his discussion of Article 54. Caldwell notes that Schmitt’s participation in the Preußenschlag raises doubts about his theory. But with all the other problems of the Prussian state, especially the counterpower it posed to the Reich, however, Schmitt believed the situation was too grave to attempt an SPD-​led minority coalition there (ibid 372–​3; Cf. Dyzenhaus, “The Concept of the Rule-​of-​Law State in Schmitt’s Verfassungslehre” 19–​20; Dyzenhaus, Legality and Legitimacy 82). Neither the SPD nor the NSDAP would tolerate the other’s control over the Prussian Landstag because both saw the other’s actions as illegitimate and unconstitutional. Rather than risk the situation escalating into civil war, von Schleicher asked Schmitt to find constitutional ways to prevent Prussia from becoming a political counterpower to the Reich, should it fall into the hands of the NSDAP (Seiberth 144).  Hofmann 89.

103

  Looking at how other theorists, such as Kelsen, Kirchheimer, and Fraenkel reacted (Hans Kelsen, “Das Urteil des Staatsgerichtshofs vom 25. Oktober 1932” (1932) 9 Die Justiz 65; Otto Kirchheimer, 104

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As Weimar was wracked by its succession of emergencies, Schmitt derived constitutional mechanisms from his state and constitutional theory, including entrenchment of its basic commitments, party bans, the constructive vote of no confidence (opposition to the negative vote of no confidence), strengthening the federated nature of the state, a restored theory of dictatorship, and civic education. Berthold argues that even if the mechanisms Schmitt outlined could not have stopped Hitler’s assumption of power outright, they still would have made it more difficult for him to do so.105 Part of the reason for the increasing popularity and success of the extremists lay in their ability to infiltrate parliament and tear the state machinery apart like a pack of gremlins, aggravating the damage caused by external crises. By causing the breakdown of parliament and the state, the extremists validated their own platform of radical change. To the German public, radical and authoritarian solutions sounded more and more reasonable. Had action been taken to prevent their deliberate obstructionism earlier on, it is plausible that the majority of German voters would not have turned against the Weimar state and constitution.

3.  reflections from bonn The 1949 Bonn Grundgesetz introduced new constitutional features that resemble mechanisms of Schmitt’s constitutional theory. Schmitt’s interpreters have argued that this was more than coincidence. Lübbe argues that “liberal Schmittians” can interpret the Grundgesetz as the solution to which Schmitt’s state and constitutional theory pointed: to be legitimate, a liberal constitutional system must have mechanisms to prevent its self-​destruction.106 Maus argues that Schmitt’s state and constitutional theory inspired the eternity clause of Article 79, which entrenches the basic commitments of the Grundgesetz.107 Berthold offers a penetrating analysis of Schmitt’s theoretical role in the construction of Article 67, which compels any exercise of a “Verfassungsreform und Sozialdemokratie” (1933) 10 Die Gesellschaft 20, 32; Ernst Fraenkel, “Verfassungsreform und Sozialdemokratie” in Hubertus Buchstein and Rainer Kühn (eds), Gesammelte Schriften (Nomos Verlagsgesellschaft 1999) 518ff, 525–​9; Cf. Seiberth 131), there appears to have been a consensus that the premises of the Preußenschlag, preventing the NSDAP seizure of Prussia for the security of Weimar itself, were legitimate and necessary. Kelsen’s account is particularly revealing. He argues, “The policy and goals of Prussia and the Reich ought to be unified. If a Landsregierung could impede public security and order were it held by certain movements (i.e. the NSDAP), it was legitimate for the Reich to assume power. The Weimar Constitution had created this problem by providing insufficient effective guarantees for its maintenance. Therefore, it fell to the president to do so through Article 48.” To that effect, Kelsen wrote Hindenburg’s measure [Maßnahme] was constitutional; the constitution provided the possibility for ensuring coordination of the different tiers of institutional power in line with the Grundnorm implicit in the Constitution. Cf. Seiberth, Anwalt des Reiches, 195–​8.  Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik 60.

105

  Lübbe 436–​7.

106

  Maus 107–​10.

107

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no confidence vote to include the election of a successor by the vote of a majority of its Members and to obtain permission from the president.108 Roth argues that the organizational structure and articles of the Grundgesetz and its accompanying clarity was due to Schmitt’s influence.109 Key innovations of the Bonn Grundgesetz have been attributed to Carl Schmitt. In his 1958 remarks to Legality and Legitimacy (1932), Schmitt wrote that his arguments against the unlimited use of the amendment mechanisms of Article 76 of the Weimar Constitution, rejected in Weimar, found express recognition in Article 79 of the Grundgesetz.110 Schmitt argued the Grundgesetz realized the very principles upon which he had insisted eighteen years earlier in his struggle against a relentless “value-​neutral, positivistic” opposition. The Grundgesetz’ eternity clause gave legislative teeth to Schmitt’s theory of the Absolute Constitution by guaranteeing the underlying status of the Federal Republic of Germany [Bundesrepublik Deutschland]. Schmitt noted how the Grundgesetz, unlike the Weimar Constitution, recognized the importance of institutional guarantees as a connecting and complementary guarantee of the more fundamental bourgeois Rechtsstaat commitment to civil liberties.111 Even before those 1958 remarks, Schmitt had written a lengthy analysis of the Grundgesetz using a pseudonym.112 This 1949 analysis has been mostly overlooked in English,113 yet it is important because it reveals how Schmitt thought about the new German constitution. He summarized the decision of the Grundgesetz writing, “the Federal Republic of Germany is not only a democratic and federal structure. It is above all a Rechtsstaat . . .”114 He wrote that “if [the basic rights outlined in Articles 1–​19] really dominate the entire public life of the federation and the states, one can say that Germany is a Rechtsstaat in which the life, liberty, and property of every  Lutz Berthold, “Das Konstruktive Misstrauensvotum und seine Ursprünge in der Weimarer Staatsrechtslehre” [1997] 36 Der Staat 81; Cf. Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der Weimarer Republik. 108

 Roth 147.

109

 Schmitt, Legality and Legitimacy 95–​6.

110

  Schmitt, “Freiheitsrechte und institutionelle Garantien der Reichsverfassung” 173.

111

 Carl Schmitt, “Das Grundgesetz der Bundesrepublik Deutschland” in Klaus Hansen and Hans Lietzmann (eds), Carl Schmitt und die Liberalismuskritik (Leske + Budrich 1988); Cf. Hans Lietzmann, “Carl Schmitt alias Dr.  Haustein:  Editorische Anmerkungen zu einem politischen Konzept zwischen ‘Occasionalität’ und Opportunismus” in Klaus Hansen and Hans Lietzmann (eds), Carl Schmitt und die Liberalismuskritik (Leske + Budrich 1988). 112

  Müller seems to be the only thinker to have taken it up in English. He dismisses it as a desperate attempt by Schmitt to earn money. Müller, A Dangerous Mind 62. When one looks at the substance of what Schmitt writes and compares it to his earlier analysis of the flaws in the Weimar Constitution and his solutions, there are overlaps strong enough to suggest Schmitt was doing more than earning a paycheck. He was expressing his own views, even if he did so in rather uncharacteristic language. Most significantly, Schmitt expressly approved of the decision by the architects of the Bonn Grundgesetz to entrench Bonn’s constitutional core (its Absolute Constitution) using the eternity clause of Article 79. 113

  Schmitt, “Das Grundgesetz der Bundesrepublik Deutschland” 194.

114

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human being is protected and it is moreover not misleading to speak of the basic rights of the Germans.”115 He argued that the Grundgesetz was a significant advance over the Weimar Constitution because it was structured logically:  rather than put the “organizational” component first, as Weimar had, the Grundgesetz began by stating its basic decision—​to be a Rechtsstaat.116 The organization of the Grundgesetz left no ambiguity about Bonn’s political status. Besides clearly expressing its political decision, Schmitt argued the Grundgesetz also committed to that decision. Its status as a bourgeois Rechtsstaat took precedence because it argued the basic rights of Articles 1–​19 were prior to the state and the purpose for which the state had been constituted.117 The Grundgesetz expressly linked the positive constitutional laws of the written constitution to their super-​legal foundation in the way it articulated its basic rights.118 The “Eternity Clause” of Article 79 entrenched its decision by preventing its legal revolution. Conceived within the lens of Schmitt’s state theory, Bonn was more than a mechanical, quantitatively total state. It was qualitatively total. Schmitt also wrote that mechanisms for popular referenda were not included in the Grundgesetz—​a change consistent with his 1932 concerns about the potential abuse of referenda for radical constitutional revision.119 Schmitt wrote the Grundgesetz also clearly appoints a guardian (Hüter) outside of parliament. The guardian of the Grundgesetz was not, however, the president but the judiciary, which put it at odds with Schmitt’s earlier expressed concerns about judicial review.120 The judiciary was authorized to declare parties to be Enemies of the Grundgesetz. The interpretation of basic political concepts was confined to the judiciary, which mediated the will of the people.121 Party bans also found their way into the Grundgesetz. Article 21 provided mechanisms to deprive parties of their political rights. Schmitt also described how, in contrast to the Weimar Constitution’s weak federalism, Articles 31 and 37 of the Grundgesetz assured the superiority of federal law over the law of German states and authorized the federal government to use coercion against the states for the sake of preserving political and legal unity. Finally, Schmitt approved of how the Grundgesetz had a mechanism to prevent the recurrence of negative majorities and their abuse of the vote of no confidence with the “so-​called constructive or positives votes of no confidence” of Article 67.122 The Grundgesetz adapted to the failures of Weimar. Above all, it committed to its decision by entrenching those basic constitutional commitments.

 Ibid 181.   116 Ibid 176.   117 Ibid 194.   118  Ibid 178–​80, 181, 189.

115

 Ibid 181.   120 Ibid 191ff.   121  Ibid 177–​8, 180, 193–​4.   

119

 Ibid 187.

122

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Although it is difficult to establish objectively the degree to which Schmitt’s thought may have inspired the innovations of the Grundgesetz, the parallels between Schmitt’s proposed solutions in Weimar and the presence of similar mechanisms in Bonn are clear. As a whole, the Grundgesetz can be characterized, in Schmitt’s terms, as an unambiguous political decision to be a bourgeois Rechtsstaat. It clearly defined the state’s political identity and empowered the state to defend itself and take action against its Enemies, Enemies of liberal democracy.

4. conclusion By applying his state and constitutional theory to Weimar, Schmitt provided an unorthodox defense of liberal democracy. He argued only a commitment to individual liberty—​and not democracy—​could coherently and stably serve as the basic political status of the Weimar state. He used that basic status to justify absolute limits to democratic procedures, including constitutional change. In doing so, Schmitt theorized what could be called political liberalism. Schmitt had theorized a form of liberalism that could recognize itself as an existential commitment, rather than a procedure, and that could recognize its Enemies. And liberal democracy does have Enemies, whether liberal democrats recognize them or not. The problem of politicization and Enmity, as Schmitt argued in the early twentieth century, is not one that can be permanently overcome. It can only be held back. His state and constitutional theory was his solution to this problem, in particular to the effects that mass democracy had on stable public order. Schmitt aimed to provide clarity on what was constitutional in the dilemma over whether democratic states could commit suicide constitutionally, a dilemma inherent to the nature of liberal democracy itself and which he believed liberal democratic states would face time and again.

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Conclusion Carl Schmitt and Constrained Democracy

Schmitt had argued that the constitutions of twentieth-​century democratic states uncomfortably paired two opposed basic commitments:  democracy and liberal basic rights. Although the two commitments could and did coexist peacefully in normal times, in exceptional states—​such as when an extremist party seeks to use its democratic mandate to legally enact illiberal commitments—​the latent conflict between them could ignite. When it ignites, this latent conflict forces a decision on what is constitutional: adhering to the outcome of democratic procedures—​however illiberal and antidemocratic the consequences may be—​or invoking the authority of the substantive liberal commitments of the state and constitution to halt popular sovereignty? The prevailing answer to this question in Weimar, oriented by a statutory positivist methodology, argued constitutionality meant adhering to democratic procedures and positive law. As long as the will of the people formally adhered to the procedures in effect for enacting law, that will would be valid law. Weimar statutory positivists argued that there was no basis to prejudge the content of that will. It was legitimate if a majority or super-​majority willed it. Having rejected all alternatives, they precommitted themselves to the political legitimacy of the outcome of those democratic procedures—​ whatever they might have been. Revolution could be constitutional. This book has discussed how Schmitt challenged this answer. Schmitt argued that twentieth-​ century “mass” democracy was a new form of democracy. It required reinvestigating the meaning and value of the state and constitution. Yet Weimar jurists ignored this changed state of things and continued to treat parliament and democracy as if nothing had changed—​ uncritically conceiving of Weimar politics and law in nineteenth-​century terms. Schmitt’s challenge originated as a warning about the statutory positivists’ answer and the potential it offered for extremists to legally revolutionize the Weimar Constitution. Even as extremist parties gained in popularity after 1929, confirming Schmitt’s concerns, Weimar positivists remained Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin A. Schupmann. © Benjamin A. Schupmann 2017. Published 2017 by Oxford University Press.

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obstinate about the prior legitimacy of democratic proceduralism. In doing so, Schmitt argued, they exacerbated Weimar’s crisis by standing aside while the extremists seized power or even condoning their political goals. This book has also analyzed Schmitt’s alternative to that positivist model. He believed his state and constitutional theory could contain the destabilizing effects of modern mass democracy and restore the authority of the state and constitution. Schmitt seized the latter horn of the above dilemma and argued that the legitimacy of Weimar constitutional democracy did not consist merely in the procedural enactment of the will of the people. He argued instead that the legitimacy of the Weimar state and constitution rested in its political decision to be a bourgeois Rechtsstaat, above all in its commitment to basic liberty rights. To be sure, a superstructure of democracy and positive law could be erected upon that foundation. But neither could supplant its substantive system of meaning without destabilizing the state and constitution. Constitutionality, according to Schmitt, consisted in the unyielding defense of the community’s basic political-​existential commitments. In order to better defend and guarantee those commitments, in particular against the combined threat of positive law and mass democracy, Schmitt theorized legal mechanisms to incorporate into the constitution. These mechanisms included the guarantee of the constitution (i.e. an eternity clause entrenching the core of the constitution against amendment), party bans, constraints on negative majorities in parliament, a more rigid federation of the state, a restoration of republican constitutional dictatorship or guardianship, and effective civic education. As discussed in the last chapter, versions of Schmitt’s proposals for the Weimar Constitution appear to have influenced the design of the Bonn Grundgesetz. The Grundgesetz, precisely because of those mechanisms, exemplifies a constitutional form today known as “constrained” or “militant” democracy, which Müller recently defined as a “democratic regime which is willing to adopt pre-​emptive, prima facie illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime.”1 Müller also recently wrote that militant democracy appears to lack “a proper normative theory.”2 Sajó and Thiel have made similar arguments.3 There is a need for one, however, since many  Jan-​Werner Müller, “Militant Democracy” in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 1253. 1

 Jan-​Werner Müller, “A ‘Practical Dilemma Which Philosophy Alone Cannot Resolve’? Rethinking Militant Democracy: An Introduction” (2012) 19 Constellations 536, 536–​7. 2

  Marcus Thiel (ed), The “Militant Democracy” Principle in Modern Democracies (Ashgate 2009) 4–​5; András Sajó (ed), Militant Democracy (Eleven International Publishing 2004) 9, 11. 3

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democratic constitutions today include mechanisms of militant democracy in their design.4 Without a proper normative theory, the legitimacy of militant democratic mechanisms is at best questionable. And it is difficult to specify precisely where their proper exercise ends and their abuse begins. Recognizing this gap, Kirshner and Rummens have recently outlined frameworks for a normative theory of militant democracy. Yet Invernizzi and Zuckerman have challenged both their frameworks, arguing that both rest on ultimately arbitrary exclusions of values and parties from democratic participation and that this foundation cannot be reconciled with their theoretical aims of guaranteeing democracy.5 If Invernizzi and Zuckerman’s criticism is correct, then there is still a need for a normative theory of militant democracy. By way of conclusion, this book will analyze the recent discussion of militant democracy and argue that Carl Schmitt’s state and constitutional theory can be the foundation for a complete normative theory of constrained democracy. Several scholars have already suggested there is a relationship between Schmitt’s thought and militant democracy.6 They have noted how elements of Schmitt’s thought can be appropriated to defend liberalism against illiberal and antidemocratic movements. But the depth of this relationship has gone mostly unremarked. To analyze the relationship between Schmitt’s thought and militant democracy, this conclusion is organized into three sections. The first critically analyzes current theories and criticisms of militant democracy. The second section reinterprets the meaning of militant democracy by framing it in the terms of Schmitt’s state and constitutional theory. It also challenges the name “militant” democracy, arguing that it is misleading and inaccurate, suggesting instead “constrained” democracy. The third section moves beyond Schmitt. It argues there are good reasons to commit to liberalism politically, so liberals can do better than Schmitt’s reluctant commitment to liberalism. It also examines reasons to do so, looking at some contemporary challenges to liberal democracy that arguably parallel incidents from Weimar.

 Gregory H. Fox and Georg Nolte, “Intolerant Democracies” (1995) 36 Harvard International Law Journal 1. 4

  Carlo Invernizzi Accetti and Ian Zuckerman, “What’s Wrong with Militant Democracy?” [2016] Political Studies 1, 6ff. 5

  Ingeborg Maus, Bürgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts (Wilhelm Fink 1980) XI, 58–​9; Müller, “Militant Democracy” 1261; Florian Meinel, “Diktatur der Besiegten? Ein Fragment Carl Schmitts zur Notstandsverfassung der Bundesrepublik” (2013) 52 Der Staat 455, 463; Klaus Roth, “Carl Schmitt-ein Verfassungsfreund? Seine Stellung zur Weimarer Republik in der Phase der relativen Stabilisierung (1924–​29)” (2005) 52 Zeitschrift für Politik 141, 147; Hermann Lübbe, “Carl Schmitt Liberal Rezipiert” in Helmut Quaritsch (ed), Complexio Oppositorum: Über Carl Schmitt (Duncker & Humblot 1988) 433–​4, 436–​7. 6

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1.  constrained or militant democracy today The name “militant democracy” was coined in 1937 by Karl Loewenstein.7 Loewenstein argued that democratic principles had enabled antidemocratic and illiberal parties to exploit democratic procedures to legally revolutionize democratic constitutions across Europe. Loewenstein wrote, “democracy must become militant” and preemptively address extremist threats in order to survive.8 Many constitutions written after World War II consciously incorporated principles of militant democracy into their design. Yet, despite the prevalence of militant democracy in practice, the legitimacy of militant democracy has been questioned by democratic theorists. Müller argues that Loewenstein’s idea of militant democracy found concrete expression in the Bonn Grundgesetz.9 Müller identifies five features of the Grundgesetz that are essential “militant” guarantees of the democratic order: an “eternity” clause that prevents legal change to core constitutional principles; limitations, including bans, on “unconstitutional” parties’ right to participate; the restriction of basic rights when they threaten the public order; a “basic decision” for the democratic order in general; and finally civic education in the underlying value of liberalism and democracy.10 Although Müller provides clear criteria of what a militant democratic constitution is, he argues that there is not enough clarity as to why it is legitimate.11 He writes there exists no general legal or, for that matter, proper normative theory of militant democracy—​a theory that is which could solve or even just address, what is often referred to as the “democratic paradox” or the “democratic 7   The relationship between Schmitt and Loewenstein has not yet been sufficiently investigated. Both were participants of Weber’s seminars. There is some correspondence between them and they interacted theoretically in Weimar. Most significantly, in his 1931 Habilitation, Erscheinungsformen der Verfassungsänderung, Loewenstein was rather critical of aspects of Schmitt’s state and constitutional theory—​especially Schmitt’s attempts to limit democratic procedures, in particular the democratic use of Article 76. Speaking of the Reichstag, he wrote “The legislator [Gesetzgeber] organized as a constitutional legislator [Verfassungsgesetzgeber] faces no substantive limits to constitutional change, even to the point of the total abrogation [Totalauf hebung] of the constitution, as long as they adhere to the essential forms shown to be absolutely necessary in this study; therefore, Carl Schmitt’s theory of the material limits to constitutional amendment has to be rejected.” Karl Loewenstein, Erscheinungsformen der Verfassungsänderung: Verfassungsrechtsdogmatische Untersuchungen zu Artikel 76 der Reichsverfassung (Scientia Verlag 1968) vii (my emphasis) Clearly, Loewenstein’s thought underwent a radical change between 1931 and 1937 (for understandable reasons). This change is relevant for current debates about constrained democracy because—​g iven Loewenstein’s 1931 opposition to specifically Schmitt’s state and constitutional theory for its theory of implied limits to constitutional change and given the parallels between Loewenstein’s 1937 theory of militant democracy and Schmitt’s theory of implied limits–​Loewenstein must have been influenced by Schmitt in the construction of his theory of militant democracy. 8   Karl Loewenstein, “The Demise of the French Constitution of 1875” (1940) 34 The American Political Science Review 867, 874ff; Karl Loewenstein, “Militant Democracy and Fundamental Rights, I” (1937) 31 The American Political Science Review 417, 432. 9

  Müller, “Militant Democracy” 1254, 1258.

  Ibid 1258–​63.

10

  Ibid 1254; Müller, “A ‘Practical Dilemma Which Philosophy Alone Cannot Resolve’?” 536–​7.

11

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dilemma,” namely the possibility of a democracy destroying itself in the process of defending itself.

Given how most liberal democratic states today practice militant democracy in some form, the absence of its normative theory is troubling.12 Kirshner, recognizing this need for a normative theory, outlined a principled framework for militant democracy. Within this framework, he repeatedly affirms the first principle of his theory of militant democracy, that political legitimacy consists in the guarantee of the “indefeasible” rights of all individuals to democratic political participation, even antidemocrats who aim to violate or actually do violate others’ participatory rights.13 Kirshner writes “all citizens possess indefeasible rights to participate,” later qualifying that this means “all individuals.”14 He conceives of participatory rights in thick terms: they do not just consist in voting rights but also the right to hold office and to speak and associate with others.15 This fundamental right to political participation would be empty if individuals were prevented from bringing their beliefs and values to bear on governmental institutions. So no limits can be placed on these thick participatory rights legitimately. And Kirshner writes that “preventive party bans or preventive interventions of any sort are democratically illegitimate”—​they cannot be justified.16 Kirshner’s theory is thus founded on a deep commitment to the equal and inalienable right for any and all citizens to have the chance for their beliefs, values, and interests to be enacted into law and be made the subject of direct government action. Yet Kirshner opposes this first principle of militant democracy with a second. He argues that in exceptional circumstances, “exclusionary rules or policies should be used only to thwart antidemocrats from invidiously violating others’ rights.”17 The participatory rights of citizens or parties that have the capacity and intent to “block democratic challenges in the present and shut down normal avenues of democratic opposition in the future” can be infringed.18 Kirshner writes that, when antidemocrats appear to be on the cusp of violating others’ rights, preventive infringements of their rights can be “permissible,” “warranted,” and defensible.19 Moreover, he argues, “the value of securing democratic institutions trumps the costs of illegitimate action.”20 It is not clear what it means for an act to be, on the one hand, illegitimate and unjustifiable yet, on the other, permissible and warranted. Although he does not acknowledge it explicitly, Kirshner’s theory appears to rest on a foundation of raison d’état theory. This theory assumes a conception of legitimacy that   Fox and Nolte.

12

  Alexander S. Kirshner, A Theory of Militant Democracy: The Ethics of Combatting Political Extremism (Yale University Press 2014) 6, 27, 33, 47, 50, 55, 58, 60, 85, 110. 13

  Ibid 6, 26, 27, 110.

 Ibid 33.

14

 Ibid 130.

18

15

  Ibid 135, 137.

19

16 20

  Ibid 107 (my emphasis), 110.

 Ibid 111.

  Ibid 6–​7.

17

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is prior to and normatively trumps democratic legitimacy conceived as thick participatory rights. This is the only way to justify his claim that the otherwise indefeasible right to political participation of all individuals is in fact defeasible and can be constrained. Unfortunately, without spelling out what the content of this deeper conception of legitimacy is, Kirshner’s framework does not sufficiently address the need for a normative theory that Müller identified. In their criticism of Kirshner’s framework, Invernizzi and Zuckerman argue that the existence of this prior foundation complicates his theory. They write that a restriction of participatory rights “requires a set of external, substantive normative judgments that are exogenous to Kirshner’s theory” but that as a prior judgment of what is to count as a valid belief, it is at odds with democratic principles of equal chance—​principles Kirshner identifies to be the normative foundation of his framework.21 Moreover, these substantive principles remain only implicit within the normative framework of his theory of militant democracy. And, as Invernizzi and Zuckerman argue, leaving them implicit leaves a large range of actions open to a discretionary authority—​which is again inconsistent with a theory of democratic legitimacy and a commitment to the value of equal chance. They write that Kirshner’s theory of militant democracy contains an “irreducible element of arbitrariness in whichever way the decision is taken as to what constitutes an enemy of democracy.”22 The infringement of the equal right to political participation undermines the democratic commitments of Kirshner’s theory of militant democracy and replaces it with something inherently undemocratic. But what it is precisely is left unclear. Again, the foundation appears to be something like a theory of raison d’état—​but it is not brought to the surface. Rummens, Sottiaux, and Abts put forth a model of “concentric democracy,” which they describe as a moderated form of militant democracy. This is intended to provide a theoretical basis for containing extremism as well as “promoting and fostering democratic values.”23 Those values are above all “freedom and equality for all citizens” to which Rummens and Abts add, Their realization in actual democratic societies should proceed on the basis of legislation and policies that take into account the specific interests, values and circumstances of all citizens. As, of course, these citizens are themselves the best judges of their own interests and needs, it follows that the design of these laws and policies should not only depend on the a priori judgements of experts or policy makers but requires, crucially, processes of democratic decision making in which the citizens themselves can actively participate.24 21

  Accetti and Zuckerman 6.

 Ibid 2.

22

  Stefan Rummens and Koen Abts, “Defending Democracy: The Concentric Containment of Political Extremism” (2010) 58 Political Studies 649, 651. 23

  Ibid 652; Stefan Sottiaux and Stefan Rummens, “Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights” Case Law on Freedom of Expression and Freedom of Association (2012) 10, 106, 116. 24

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Here too, all citizens’ interests must be accounted for in the formulation of legislation and policy and the citizens themselves are the best judges of what their interests are—​no one may legitimately speak for them. To defend those democratic values, Rummens, Sottiaux, and Abts recommend a system of “decreasing tolerance” for extremists, that is those citizens whose values and interests are “at odds with the core values of liberty and equality.”25 This system amounts to an “unremitting civilizing pressure” in the form of anti-​extremist legislation (including party bans), denial of public funding, and principled non-​cooperation within the government.26 Invernizzi and Zuckerman raise an objection to the theory of concentric democracy that is similar to the objection they raised against Kirshner’s theory: there is a deep tension between the promotion and fostering of citizens’ rights to express their values and interests through democratic political participation and the use of exclusionary measures against movements determined to be at odds with those values. They write that this approach “merely reproduces the problem that militant democracy was meant to solve in the first place, at a higher level of abstraction.”27 In addition, Invernizzi and Zuckerman argue—​as Rummens and Abts themselves recognize—​the values of freedom and equality are “highly indeterminate.” The difficulty specifying those values presents means that potential threats to them would likely be identified in an arbitrary way.28 Moreover, insofar as this theory argues that the determination of either which values are extremist or what the content of “liberty and equality” is to be accomplished democratically, it may avoid the fundamental issue militant democracy was designed to prevent:  democratic suicide. If a majority is convinced by illiberal antidemocratic arguments, it seems unlikely procedures of democratic deliberation will constrain extremism. It is difficult to see how militant democrats can respond to Invernizzi and Zuckerman’s charge of incoherence as long as they conceive of political legitimacy in terms of participatory rights. By labeling a group an “enemy” of democracy, one contradicts the democratic commitment to allow any and all interests to have an equal opportunity to become public policy and law. This presupposes some non-​democratic criterion or value by which to judge the content of that group’s political goals. As Invernizzi and Zuckerman write, the restriction of participation in these theories can be done only on the basis of “an authoritarian exercise of power that contradicts the very logic of the system it is supposed to protect.”29

  Rummens and Abts 652–​4; Sottiaux and Rummens 117.

25

  Accetti and Zuckerman 7.   

27

29

  Rummens and Abts 657–​8.

26

 Ibid 8.      Ibid 9–​10.

28

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Despite the presence of both an implicit authoritarianism and constraints on the range of legitimate values for citizens to hold, theories of militant democracy by and large insist on the commitment to political participation. Because of the inherent tension this commitment gives rise to, militant democracy must fail to navigate the democratic dilemma described above: militant democracy undermines democracy in the process of defending it, delegitimating itself.30 To this difficulty facing theories that seek to defend militant democracy, Müller adds two others. First, with the end of the Cold War, “definitions of the supposed enemies of democracy have become much more diffuse and difficult to establish.”31 Without clarity on what the basic normative commitments of the constitution are, it may be exceedingly difficult to determine who might be a threat to those commitments in some cases. And this ambiguity offers enemies of the constitution more latitude than they deserve while also risking being turned against its friends. Second, Müller writes that “conflicts with religious actors  .  .  .  is a new and complex terrain for militant democracy.”32 It is unclear whether militant democratic principles and mechanisms have any bearing on religious organizations that reject some form of secularism. Rosenblum raises similar concerns, rightly worrying that militant democracy’s party bans and limits on participatory rights could be abused to discriminate and exclude religious organizations and movements.33 She argues that questions about the validity of militant democracy should be framed by the question of “what constitutes a sufficient attempt to change the relationship of church and state or to undermine the secular religiously neutral state?”34 Concerns like Müller’s and Rosenblum’s seem to validate Invernizzi and Zuckerman’s criticism that militant democracy fails on its own terms. Its justification is simply unclear. With theories of militant democracy unable to navigate the democratic paradox, this seems to leave only one alternative. Liberal democrats bite the bullet and embrace something like Kirshner’s above first principle alone and argue that political legitimacy consists in the full and equal participatory rights of all individuals. All individuals must be accorded the opportunity to have their political and legislative goals translated into public order—​no matter the content. Liberal democrats must accept that there are neither solid foundations beneath their institutions nor guarantees of their existence: if the people will to revolutionize the constitution, then committed liberal democrats have no choice except to acquiesce and go down with the ship. 30

  Müller, “Militant Democracy” 1254.   31 Ibid 1255.   32 Ibid 1256.

  Nancy Rosenblum, “Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies” (2007) 1 Law & Ethics of Human Rights 17, 59–​60, 71ff. 33

 Ibid 61.

34

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This alternative has found expression recently in the work of thinkers like Bellamy and Schwartzberg. Bellamy argues that the “true basis of constitutional government is democratic political constitutionalism,” that the “democratic process is the constitution,” and that “the rule of law simply is rule by democracy.”35 His “Political Constitutionalism”—​in opposition to Legal Constitutionalism—​holds that constitutions should not constrain democracy but only facilitate democratic procedures.36 Bellamy conceives of the constitution as a framework for citizens to resolve their public disagreements. Political legitimacy consists in allowing the people to determine “both their rights as citizens and the rules by which they have to play.”37 Any individual must be able to express whatever view he or she holds—​the democratic process must be neutral toward the content of individuals’ beliefs and values.38 Schwartzberg argues that “one of democracy’s most attractive legacies [is] the ability to modify the law” and that to constrain this ability in any way would be illegitimate.39 Democratic legitimacy consists in signaling to minorities the possibility to reverse laws and decisions they find objectionable.40 Accordingly, Schwartzberg argues that any form of constitutional precommitment or any predetermination of what might be a valid law is an invalid constraint of democratic procedures.41 Here too, as long as parties and movements adhere to the procedures in effect for creating valid law, they do create valid law. She acknowledges that her argument rests on a form of political relativism, writing that “no set of beliefs, and no law, can ever attain the level of absolute and immutable truth.”42 In the absence of truth, there is no normative basis to reject any beliefs or values—​no matter how deplorable or illegitimate they may appear. These positions all share a fundamental and overriding commitment to democratic proceduralism, along with an implicit complementary commitment to positivism. But this argument should be familiar by now. Its arguments overlap with those of Weimar’s statutory positivists. Vinx identifies this overlap, arguing that positions like Bellamy’s political constitutionalism embody the essence of what Schmitt characterized as the Legislative State of Weimar’s statutory positivists.43 They had argued that, with democracy’s “triumphal march,” valid laws were those commands of the people enacted into law according to the formal procedures   Richard Bellamy, Political Constitutionalism:  A  Republican Defence of the Constitutionality of Democracy (Cambridge University Press 2007) 3, 5, 53 (emphasis in original). 35

  Ibid 7, 145–​6.

 Ibid 90.

36

  Ibid 212ff. 226.

37

38

  Melissa Schwartzberg, Democracy and Legal Change (Cambridge University Press 2007) 2.

39

 Ibid 194.

40

  Ibid 154–​7.

41

  Ibid 28, 178.

42

  Lars Vinx, “Carl Schmitt’s Defense of Sovereignty” in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press 2015) 109. 43

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in effect. As long as “the people” adhered to those procedures, they could validly legislate whatever they wanted. They too argued that the constitution was nothing more than a framework for the expression of popular sovereignty. And they argued that nothing, neither rights nor some meta-​ juridical conception of the law, could legitimately constrain the people’s will. Like Weimar theorists, the argument of contemporary democrats unites positive law and democratic procedures. In addition, in the background of this argument is a form of democratic relativism. No goal or commitment can be denied the opportunity to become valid law on the basis of its content because there is no substantive right or reason by which to judge it.

2.  reinterpreting militant democracy Both militant democrats and their critics agree that legitimacy consists in participatory rights and democratic procedures: the will of the majority, whatever its content may be, is the source of valid law. The political commitment to democracy presents a dilemma: either states undermine the principles they recognize as their deepest commitment by constraining popular sovereignty when it goes too far, or they permit their citizens to undermine the principles they recognize as their deepest commitment through legal revolution. Militant democrats put themselves into the uncomfortable position of arguing that the state must sometimes engage in illegitimate activity and undermine the fundamental and indefeasible participatory rights of their citizens. Meanwhile, strict democrats commit themselves to the unappealing prospect of condoning democratic legal revolution and accepting the will of the people even when it is patently unreasonable and destroys the values constitutive of their political communities. In the end, neither horn of this dilemma offers a solid foundation for the democratic state and constitution. Democracy is not the only way to conceive of the legitimacy of liberal democratic states. Schmitt’s state and constitutional theory offers an alternative conception of legitimacy that avoids problems liberal democracies encountered in the twentieth century, including the pressing problem of constitutional suicide. Schmitt described how constitutional democracies faced a decision between the commitment to value-​neutral democratic proceduralism and the substantive system of meaning provided by basic rights. Confronted with that choice, he argued that a fundamental commitment to democratic procedures and positive law could not generate that status and provide a coherent foundation for states. He argued that the commitment to democracy was self-​undermining: if the amendment procedure can be turned on itself, then not even that procedure can be said to be constitutive of the

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public order. Schmitt argued that this position was, in the end, a commitment to the validity of the will, the normative power of the factual. He thought that the prior commitment to democracy realized the tyrannical principle “sic volo sic jubeo”: the “I want, I command” of an arbitrary will.44 In this case, it just happens to be a popular will. Schmitt argued the legitimacy of the state did not, and could not, rest on will—​be it the will of the people or the will of a monarch. The tyranny of the majority was a genuine danger and, for that reason, constitutional constraints ought to be placed on that will. With a strict commitment to popular sovereignty, absolute democratic value-​neutrality granted illiberal and antidemocratic extremists the “right” to dismantle the state and constitution from within. It was the means to legal constitutional revolution. And, as Lübbe argues, Schmitt believed a dogmatic commitment to proceduralism had undermined Weimar democrats’ ability to juridically or politically identify their Enemies and react accordingly.45 As a result, they resigned themselves to the Nazis’ and Communists’ democratic right to revolutionize liberal democracy. The interplay between statutory positivism and democratic value-​neutrality, on the one hand, and modern mass democracy, on the other, could eventually tear a state apart. Schmitt instead defended a form of constrained democracy that was constructed on a fundamental commitment to basic liberty rights, enforced by the state, which guaranteed to each individual a negative status free of external interference. Schmitt argued that this commitment was the only coherent foundation for liberal democratic states in the twentieth century. He theorized this political decision as a super-​legal constitutional commitment that could not be altered by positive law, including the amendment procedures of the constitution. Against statutory positivists, Schmitt argued that valid law rested on substantive principles, espousing what amounted to a form of natural law without naturalism. This distinction between law [Recht] and positive law [Gesetz], the constitution and constitutional law, established absolute limits to what could be accomplished through legislative procedures. The super-​legal commitments of the Absolute State and Constitution determined the limits of reasonability. By recognizing the fundamental commitment of liberal democracy to basic rights, Schmitt argued, such states would have a clear political identity as well as a non-​arbitrary way to determine who their enemies were and what actions to take against them. Those political parties and movements that opposed and sought to abrogate basic liberty rights—​including through the   Carl Schmitt, Legality and Legitimacy ( Jeffrey Seitzer tr, Duke University Press 2004) 21. With this Latin phrase, Schmitt seems to refer to Juvenal Satires, Book VI. 223. In that section, Juvenal describes how women seek to dominate a household and, once they succeed, abandon it for another. He suggests that one should give up all hope of peace in such circumstances. 44

 Lübbe 436.

45

21

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use of democratic legislative procedures—​were Enemies of liberal democracy. Schmitt’s theory argues that participatory rights may legitimately be rescinded when they are abused to alter or abrogate more fundamental rights to individual liberty. Schmitt theorized a rights typology that distinguished basic liberty rights from rights to political participation. His theory justified restricting participatory rights in exceptional cases because doing so would not contradict the state’s more fundamental commitment to individual liberty. If participatory rights were turned against liberal commitments, Schmitt argued they could be validly and coherently constrained. Schmitt’s application of his state and constitutional theory to Weimar, particularly his defense of liberal basic rights, is a theoretical tool that contemporary liberal democrats ought to adopt as the normative framework for constrained or militant democracy. Schmitt theorized several constitutional mechanisms to defend and guarantee the state’s commitment to basic rights, namely the guarantee of the constitution (entrenchment of that political status), party bans, constraints on negative majorities, a more rigid federation of the state, restoration of the classical conception of dictatorship, and civic education. Those mechanisms overlap significantly with what Müller recently argued were the basic features of militant democracy. Militant democracy can be reinterpreted in light of Schmitt’s state and constitutional theory. Insofar as both share a goal of containing mass democracy (or ochlocracy as Loewenstein puts it46) within the practices of constitutionalism, the name “militant democracy” seems misleading. It suggests that “democracy” defends itself or is in need of defense: that “democracy” should “militate” against some external threat. But the mechanisms of “militant” democracy do not defend democracy, at least when understood in terms of thick participatory rights and equal chance. They limit individual participatory rights, political parties, and even the outcome of democratic legislative procedures. And they implicitly rest on some super-​positive justification. Despite its name, the theory and practice of militant democracy conceives of democracy as the threat to be militated against. It conceives of certain forms of popular sovereignty as an existential threat to the state and constitution. Because it seeks to constrain the legitimate range of democracy, this theory cannot be best characterized as a democratic practice. Pace Loewenstein, “constrained democracy” would be a far more accurate name for this constitutional phenomenon and it would better convey its intended aims.47   Loewenstein, “Militant Democracy and Fundamental Rights, I” 418; Karl Loewenstein, “Monarchy Gains Lost Ground in Europe” 11 Social Science, 240. 46

  Another name for this phenomenon could be authoritarian liberalism. See Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (University of Wales Press 1998). 47

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As the name constrained democracy suggests, this theory does not rule out democratic self-​government. It establishes a hierarchy of legitimacy between democratic procedures and basic rights. Constitutionality consists in upholding that prior commitment to basic liberty rights even if a democratic will has adhered to the procedures in effect for enacting valid law in its efforts to abrogate those rights. For constrained democracy, democratic legislative procedures can be conceived of as a superstructure resting upon a prior foundational commitment to individual liberty. So legitimate democratic change occurs within the confines of the system of substantive meaning of liberalism. A theory of constrained democracy based on Schmitt’s state and constitutional theory addresses the above three concerns about constrained democracy: namely how to navigate the democratic paradox, how to clarify who enemies of the constitution are, and whether its mechanisms apply to anti-​secular but apolitical movements. First, Schmitt’s theory of constrained democracy circumvents the democratic paradox. The constraint of participatory rights is not undertaken for the sake of democracy, so this approach is not exposed to the charge of incoherence and risk of arbitrariness leveled at other theories of constrained democracy. Democracy is constrained for the sake of something else—​the substantive value of liberty. Schmittian constrained democracy provides a non-​arbitrary basis to assess when citizens’ participatory rights may be legitimately constrained: parties and movements whose political and legislative goals include the abrogation of basic liberty rights are illegitimate because basic liberty rights are constitutionally inviolable. The distinction between political participatory rights and basic liberty rights ensures that the state can continue to preserve individuals’ basic liberty rights even as it limits their democratic participatory rights. Put concretely, a constrained democratic state would guarantee the rights of individuals to be Nazis and hold those beliefs privately even as it limits their public right to organize into a political party and to seek to democratically revise the constitution to align with those beliefs. On this same basis, Schmittian constrained democracy clearly determines its enemies. Enemies are public entities. Parties and movements that would use the law to deny basic liberty rights to any are enemies of the liberal state and constitution. There are substantive limits to what is tolerable. And parties and movements politically opposed to liberal values are beyond the pale. Although it is committed to guaranteeing their basic liberty rights no matter what, the state may legitimately exclude such actors from political participation. Finally, the relationship between constrained democracy and religious actors is also clarified. Only those political actors, regardless of their religiosity, seeking to alter the basic commitments of the constitution are legitimate objects of these mechanisms. Religious movements that have no political

214

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intention or goals of altering the basic liberal commitments of the constitution are obviously not appropriate targets of constrained democracy.48 Reconceiving of constrained democracy in the framework of Schmitt’s state and constitutional theory provides a coherent normative theory to what appears to have been a mostly ad hoc constitutional practice. I have argued that Schmitt’s state and constitutional theory was intended to force Weimar’s liberal democrats out of their comfort zone by showing them that liberalism is a political commitment and that liberals have enemies. Schmitt raised the alarm: unless Weimar liberals took action, their values and commitments would be in existential danger. Vinx worries that Schmitt’s solutions “[misdirect] those interested in understanding the foundations of a democratic constitution onto an authoritarian path.”49 Vinx is correct. Schmitt’s solution is authoritarian—​not democratic. But liberal democrats need not fear authority always. Nor do they always need to uncritically acquiesce to a democratic will. By pushing liberal democrats out of their comfort zone, Schmitt hoped to show them that they too could recognize legitimate authority. That the authority of reason and the authority of rights are not opposed to liberal values or liberal political identity. To insist that democracy remain within the bounds of reasonability, and ensure it does through constitutional measures, is consonant with the values of liberal democracy. Schmitt teaches that liberal democracy is not internally coherent. The democratic commitment to Equal Chance and legal change can be turned against liberal democratic values through constitutional amendment procedures. When it does so, liberal democrats are forced into the undesirable position of needing to decide which commitment is more important: democratic value-​neutrality and Equal Chance (realized through democratic procedures) or individual liberty (realized through basic rights). Obviously it would be better to never have to face this decision. And even when faced with it, it is decision of last resort in exceptional circumstances. But when such an emergency arises, deciding for authority is the lesser of two evils and it offers a coherent way to preserve our deepest commitments. Schmitt offered Weimar liberal democrats a way to understand themselves, and their state, as greater than a value-​neutral procedure for turning a majority will into law. He gave them a way to recognize liberal democracy as above all a normative commitment and a political identity. Liberals are reluctant to recognize that liberalism is an identity, that it is not totally agnostic. Yet by conceiving of liberal identity politically, as a basic commitment to an individual’s negative status and legitimating the state through its provision of constitutional mechanisms to guarantee that status, liberals can coherently deny the political legitimacy of illiberal and antidemocratic beliefs and 48

  Müller, “Militant Democracy” 1256.

 Vinx 122.

49

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values no matter how democratically popular they may be. Liberals can have their cake and eat it—​most of it. Through constrained democracy, they can maintain a commitment to wide-​ranging pluralism without exposing the heart of their constitutions to Enemies who would not hesitate to strike. Having these tools in place in advance matters. By taking action before the Nazis and Communists had systematically delegitimized liberal democracy by making it appear impotent and before their tactics of deliberate obstructionism within the Reichstag could prevent the government from addressing Weimar’s crises and justify their calls for radical change, Weimar Germany may not have suffered the revolutionary outcome it did. Hitler’s appointment as Chancellor did not come out of nowhere. His appointment was produced by years of systematically chipping away at the perceived legitimacy of liberal constitutionalism and growing popular support for radical illiberal change, which fed off one another in a vicious cycle. It is true: institutional solutions cannot prevail alone. A people committed to constitutional democracy is essential. Education in the state’s civic values, to integrate the citizenry into the state’s basic commitments, can help create that kind of people. But theorists of liberal democracy must avoid shirking hard decisions by denying the role institutional design and political action can play in guaranteeing liberal democratic states and constitutions. When confronted with the dilemma of either tolerating politicized extremism or exercising mechanisms of constitutional democracy, liberals need not blink.

3.  beyond schmitt Schmitt’s thought has roots in nineteenth-​century jurisprudence, particularly the movement stemming from the Historical School. This view was tempered by the Weberian belief that the world was disenchanted. Schmitt seemed resigned to accepting that no belief rested on solid foundations, that no commitment to a “god” could be absolutely defended. Combined, these two views led Schmitt to a sort of communitarian pluralism that recognized the validity of the different political commitments of public orders in different states. Schmitt was silent on whether any particular commitment was genuinely valid or not. From his perspective, their claims were irreconcilable. His analysis of states and their political commitments was sociological, rather than normative. In fact, Schmitt seems to have had little interest in the question of whether there were better or worse normative commitments. This agnosticism led in part to Schmitt’s biographical occasionalism and the ease with which he joined the Nazi Party once they had taken power. We can do better. We can combine Schmitt’s formal analysis of the state and constitution with a philosophical commitment to liberalism. We can recognize that whether a state and constitution guarantees the protection of

216

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basic liberty rights is the criterion of political legitimacy because there are good reasons to commit to liberalism. John Rawls, for example, offered an enduring account of why liberal basic rights should be the foundation of public order (what he called the basic structure): liberal basic rights are the best foundation for an enduring peace and an overlapping consensus within societies characterized by the fact of pluralism.50 Recognizing the need to guarantee liberal basic rights for the sake of justice, Rawls also defined the limits of what societies could tolerate, writing that “justice does not require that men must stand idly by while others destroy the basis of their existence.”51 Liberals need not tolerate internal Enemies seeking to subvert their deepest commitments legally. Rawls understood that liberals have Enemies and he believed that taking action against them could be reconciled with their normative commitment to liberalism. Rawls only brought up the limits of toleration briefly. And he quickly bracketed it, writing that the question of tolerating the intolerable “presents a practical dilemma which philosophy alone cannot resolve.”52 But Rawls was wrong to renounce a “philosophical” solution to this dilemma. Complementing a philosophical commitment to liberalism with Schmitt’s state and constitutional theory resolves it. Schmitt’s analysis of the relationship between basic rights and democracy, which serves as the normative foundation for a theory of constrained democracy does just that. Schmitt’s thought urges liberals to become political liberals. To commit politically to liberalism was to take action against existential threats to the foundation of that order, so that it will endure stably over time. Yet committing politically seems to be something many liberals are not comfortable doing. It means recognizing principled legislative and political limits to what is tolerable and permissible. It means designing institutions to guarantee that the intolerable and the impermissible cannot become valid law. And, in taking this stand, it means recognizing the role political authority has to play in ensuring the continuity of liberal order. Some liberal democrats do recognize such limits, at least implicitly. Vinx noticed this, writing that some democrats today try “directly or indirectly to restrict the morally or politically permissible content of democratically created positive law.”53 Habermas’ co-​originality principle, which holds that the  Constitutionally generated from the First Principle of Justice as Fairness. See Leif Wenar, “John Rawls” (The Stanford Encyclopedia of Philosophy, Winter Edn, 2013) accessed January 7, 2017. 50

  John Rawls, A Theory of Justice (Belknap Press 1999) 192; Cf. John Rawls, Political Liberalism (Columbia University Press 1996) xviii–​xix. 51

 Rawls, A Theory of Justice 193; Cf. Müller, “A ‘Practical Dilemma Which Philosophy Alone Cannot Resolve’?” 52

  Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (Oxford University Press 2007) 142.

53

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laws passed through democratic procedures must respect the system of rights that “constitutes a minimum set of normative institutional conditions for any legitimate modern political order,”54 seems to be one such case. Müller’s argument that liberal values “are constitutive of democracy as such” seems to be another.55 Müller makes a similar claim in his recent analysis of populism, arguing that authentic democracy is liberal constitutional democracy (and that to describe a state as an illiberal democracy would be a “deeply misleading designation”).56 But this definition of democracy creates a confusing political vocabulary in which a majority will can be deemed undemocratic (and conversely, a minority could be authentically democratic). Eliding the distinction between democracy and liberalism can be counter-​productive, both for our theoretical understanding of what liberal democracy states are as well as in the practical struggle against extremist movements. In his interpretation of Kelsen, Vinx describes how Kelsen’s democratic theory is qualified by the constraint of reasonability.57 To qualify core features of democracy, such as citizens, interests, laws, and disagreement, with the normative constraint of reasonability suggests prior limits to the permissible content of democratically created law—​it limits who and what can enter into the democratic process in the first place. In all of these cases, the definition of authentic democracy presupposes liberal commitments. Yet qualifications of democracy like the above beg the question: when the people fails to respect that system of rights constitutive of legitimacy, legally challenges liberal values, or simply behaves unreasonably—​and the people does and will continue to do all these things—​what are liberal democrats to do? When liberalism and the people diverge, when the people cease to be reasonable and threaten peace and the rule of law, a decision on what legitimacy consists in is needed. And because they do not recognize the conceptual distinction between liberalism and democracy, these theories seem unable to offer needed conceptual clarity on this issue. Carl Schmitt’s state and constitutional theory, and the theory of constrained democracy it gives rise to, offers the best way to identify constitutional suicide as an illegitimate and unconstitutional practice as well as mechanisms for responding to it. Schmitt’s state and constitutional theory lays bare the dilemma confronting liberal democracies:  that their democratic institutions can be turned against themselves. Enemies of liberal democracy still seek to revolutionize   James Bohman and William Rehg, “Jürgen Habermas” (The Stanford Encyclopedia of Philosophy, Fall Edn, 2014) accessed January 7, 2017. 54

  Jan-​Werner Müller, “Reflections on Europe’s ‘Rule of Law Crises’” in Poul F. Kjaer and Niklas Olsen (eds), Critical Theories of Crisis in Europe: From Weimar to the Euro (Rowman & Littlefield 2016) 170. 55

  Jan-​Werner Müller, What Is Populism? (University of Pennsylvania Press 2016) 49ff.

56

 Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy 60, 73–​81, 94–​5, 107–​21, 151, 154–​7, 214–​21.

57

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Conclusion: Carl Schmitt and Constrained Democracy

liberal democratic states from within. They will continue to do so for as long as constitutions unite a commitment to liberalism and a commitment to democracy without clarifying which is more fundamental. Contemporary extremists have shown themselves willing to adopt many of the tactics used by Weimar’s extremists to subvert liberal democracy. The most obvious is the exploitation of democratic proceduralism to abrogate core commitments of liberal democratic constitutions. Political extremists and authoritarians today seek to obtain—​or in cases like Hungary’s Fidesz Party or Turkey’s Justice and Development Party have succeeded in obtaining—​a majority large enough to overturn liberal constitutional commitments, including values such as equal protection and guarantees for ethnic and racial minorities and freedom of expression.58 Consciously or not, their illiberal strategies draw on an example set by early twentieth-​century extremists, summarized powerfully in Hitler’s boast that “the constitution dictates the method, but not the goal.”59 Politicized religion has also made a comeback in recent years. Zealots do seek to rewrite constitutions to undermine their liberal secular foundations, like the principle of non-​establishment, while working to restore what they believe were their state’s original theological commitments.60 Drawing on another historical precedent, extremists today sometimes justify their radical agendas and actions by contrasting a current period of decadence and decay with some imagined past era of greatness and, they argue, things might be made great again by purifying the political community of its corrupting forces. Even when extremist movements do not have a sufficient democratic mandate to rewrite the constitution, or to obtain power, they can still deliberately obstruct government to invalidate liberal constitutionalism and make their radical alternatives seem better in comparison. As Weimar’s extremists did, radicals today can prevent a government from passing its budget or from appropriating necessary funding, forcing it to shut down. They could also refuse to perform other duties, such as passing necessary legislation or refusing to appoint essential public officials. No one wins in the short term when government is hobbled. But deliberate obstructionism has the long-​term effect of undermining public faith in the legitimacy of liberal constitutionalism, particularly the value of a system of checks and balances and the slower-​ moving deliberations of the legislative branch. Constitutional democracies   See Müller, “Reflections on Europe’s ‘Rule of Law Crises’ ” 163f. Examples of other extremist parties and movements include Norway’s Fremskrittspartiet, Finland’s Perussuomalaiset, Denmark’s Dansk Folkeparti, the Netherland’s Partij voor de Vrijheid, Germany’s Partei Rechtsstaatlicher Offensiv and the Alternativ für Deutschland, Austria’s Freiheitlichen Partei Österreichs, Italy’s Lega Nord, and Greece’s Golden Dawn. 58

  See the Introduction.

59

 Jean L.  Cohen, “Political Religion vs Non-​ Establishment:  Reflections on 21st-​ Century Political Theology: Part 1” 39 Philosophy & Social Criticism. 60

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may appear broken because political extremists, like a pack of gremlins, have actively torn apart the machinery of government from within, claiming their popular support gives them the right to do so. In the process of obstructing government, they naturally broaden the public’s perception that their claims are correct—​that “politics as usual” and liberal constitutionalism is a failure. In short, after being elected, their obstructionist actions justify their criticisms post facto and further legitimate their calls to rejuvenate the liberal state and constitution with a platform of radical change. And the people may rush to illiberal populist figures and solutions that short circuit these perceived problems. The concept of “post-​truth” politics has gained currency as radical movements not only question facts but also refuse to even engage in deliberative reasoning or acknowledge there may be any truth out there to be discovered. Media monopolies and informational echo chambers are used to agitate their popular bases and to create and channel popular anxiety about scapegoats imagined as enemies. They are also used to misinform and manipulate the people. Although today’s situation is unique in many ways, it is not entirely new either. Today’s emotional manipulation of the people and the rejection of reason too have a precedent in the early twentieth century. Weimar extremists manipulated their bases emotionally, in part through a monopoly over their access to information, and flagrantly disregarded reason. In the process, they fortified their democratic base of support and inoculated it against moderate alternatives, turning them against the liberal democratic commitments of the Weimar state. The problems of modern mass democracy have not gone away. Liberal democrats must decide whether to commit politically to basic liberty rights or to equal chance. They cannot do both. With his state and constitutional theory, Schmitt provides compelling reasons why equal chance is not a viable political commitment and could not overcome the instabilities modern mass democracy creates. He believed liberal democratic states must commit politically to liberalism and individual liberty rights. Schmitt’s solution of constrained democracy provides a way to legitimately respond to existential threats to our states while preserving those basic commitments. It provides a normative basis and the institutional framework to halt the systematic erosion of liberalism constitutionalism from within. Constrained democracy does empower an authority to decide on “constitutionality” against democratic self-​determination in exceptional circumstances. Value-​neutral democracy risks the tyranny of the majority—​or the tyranny of those best equipped to manipulate and exploit the majority—​ arising from below. Constrained democracy risks the tyranny of the state from above. Although Schmitt’s theory provides the normative foundation for a theory of constrained democracy, a fully fleshed out theory may

20

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Conclusion: Carl Schmitt and Constrained Democracy

revise some aspects of it in order to address these concerns, such as how to incorporate a theory of judicial review. But the questions posed by the Weimar dilemma may go dormant, but they never disappear: does constitutional democracy mean adhering to the outcome of democratic elections and guaranteeing the largest party—​however illiberal and antidemocratic its goals may be—​its right to form a governing coalition? Or does it mean invoking other constitutional provisions to preemptively deny illiberal and antidemocratic parties the opportunity to restructure the state and constitution through positive legal procedures? Schmitt’s state and constitutional theory is an answer. It lays the theoretical foundation for liberal democrats today to conceive of themselves, and their states, politically and as something worth defending in the face of today’s illiberal and antidemocratic forces.

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Index

Anarchism  19, 114–116, 176 Anschütz, Gerhard  11–15 Anti-Positivism  6–24, 98, 101, 136–138, 180 Anti-Semitism 25–28 Aristotle  79, 84–85, 143–144, 158 Atheism 49 See also Political Theology Auctoritas Non Veritas Facit Legem  99–102, 122–123 See also Hobbes, Thomas Basic Rights  4–5, 10–11, 15–17, 21–25, 32–33, 40, 44, 65, 101, 115, 119, 131, 159, 173–200, 201–202, 210–219 Bellum Omnium Contra Omnes See State of War Bergson, Henri  50–52 Bilfinger, Karl  16 Böckenförde, Ernst-Wolfgang  71–72, 76, 89 Bourgeois Rechststaat  11, 29–30, 36, 39, 45–53, 62, 65, 92, 114, 146, 159, 173–174, 180–192, 198–202 Distributional Principle  43–46, 62, 184, See also Basic Rights Organizational Principle  17, 43–46, 184, 199 See also Separation of Powers Brüning, Heinrich  2, 5, 170, 194 Catholic Centre Party (Zentrum)  3, 57 Catholicism  82, 86, 93–95, 99, 176 See also Political Theology Chancellor (Reichskanzler)  1–4, 168, 215 Charismatic Legitimacy See Legitimacy, Charisma Civic Education  12, 131, 141–143, 189, 197, 202, 204, 212, 215 Communism  1–5, 16, 17, 23, 29–30, 36–37, 48, 52–53, 57–58, 63, 65, 82, 85–86, 88, 181, 187, 192–195, 211, 215 Communist Party of Germany (KPD)  3–5, 25, 57, 65, 86, 101, 181, 192, 196 Bolshevism  48, 52, 63, 146, 161, 187 Concrete Order Thinking  20, 28, 94–95, 129–131, 146–151, 181, 186, 189 See also Nomos Confessional Civil Wars  87–88, 108, 121, 123 Connecting and Complementary Guarantees 186–189

Constitution Absolute Constitution  23–24, 31, 135–136, 140–147, 151, 152, 156, 162, 165, 170, 180, 187–193, 198 Ideal Constitution  146 Positive Constitution  136, 143, 145, 146 Relative Constitution  17, 23, 61, 126, 135–142, 145, 147, 151, 157, 166, 177–179, 194, 199 See also Statutory Positivism Constitution of the German Empire (1871)  10, 11 Constitutional Amendment  2–3, 14, 22–24, 32, 61, 64, 138–139, 142, 147, 157, 178, 190–194, 197–199, 202–204, 210–211, 214 Cortés, Juan Donoso  175–176 Decision  3–5, 13, 25–28, 39, 43–46, 63, 76, 78, 90–94, 100–103, 111, 118, 125, 135, 138, 143–150, 153, 162–165, 169, 173–180, 189, 192, 196, 198–199, 201–206, 210–211, 214, 217 Authority to Interpret  65, 97, 101–102, 115–116, 119, 121–124, 132, 171 Hard Decision  101, 136, 165, 215 Soft Decision  101, 102, 166 Democracy  2–7, 13–17, 21–25, 29–33, 35–54, 58–65, 68, 81–87, 101–104, 142–146, 150, 159, 162–164, 173–182, 190, 193–196, 200, 201–219 Concentric Democracy  206–207 Constituted Power  16, 48, 115, 142, 147, 161–162 Constituting Power  141–145, 161–165 Constrained Democracy  14, 24, 32, 65, 91, 131, 143, 174, 190–192, 197–199, 202–219 Equal Chance  4, 31–32, 57, 61, 65, 139, 156, 159, 177–178, 196, 206, 212–214, 219 Mass Democracy  16–17, 20, 22–24, 30–32, 36–40, 47–49, 54–56, 64–68, 75, 108, 129, 138, 148, 156, 173–174, 200, 201–202, 210–212, 219 Militant Democracy See Democracy, Constrained Democracy Parliamentary  1–7, 13–16, 31, 33, 36–68, 98, 101, 147, 167–171, 176–177, 183, 190–199, 201, 204, 215 Plebiscitary  49, 62–64, 164, 168, 176, 199

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Dictatorship  20, 32, 62, 76, 79, 95, 144, 153–171, 189–190, 197, 202, 212 Commissarial Dictatorship  154–155, 159–164 Emergency Powers  4, 174 Sovereign Dictatorship  144, 159–165 State of Siege  156 Disenchantment  23, 49–53, 92, 109–114, 118–123, 134–137, 151–152, 155, 178, 215, See also Political Theology Ebert, Friedrich  5, 170 Emergency Powers See Dictatorship, Emergency Powers Enemy See The Political Ermächtigungsgesetz (Enabling Act)  5, 26 Eternity Clause  197–204, See also Grundgesetz, Article 79

Hegel, Georg Wilhelm Friedrich  12, 18, 28, 42, 52, 81–85, 102, 110–111, 127–129, 131, 143, 146, 150 Heller, Hermann  16–17, 27–29 Historical School of Jurisprudence, The  7–12, 20, 99, 160, 215 Hitler, Adolf   1–5, 17, 25–26, 195–197, 215, 218 Hobbes, Thomas  29–31, 38, 67, 77–79, 86, 94–103, 108–114, 118–124, 127, 131–133, 165, 181 Hobbes-Crystal  99–104, 112–114, 122–123, 133 Huber, Ernst Rudolf   35, 39, 46, 89, 102, 110, 126, 173 Hugenberg, Alfred  2, 4 Institutional Guarantee  55, 176, 185–191, 198 Isocrates 142

Federalism See State, Federalism Feuchtwanger, Ludwig  54, 107 Fichte, Johann Gottlieb  171 Forsthoff, Ernst  135 Fraenkel, Ernst  108, 196 Frank, Hans  26 Freedom of Film & Television  55–56 Freedom of The Press  44, 56, 188 Freedom of Radio  55–56 Freedom of Speech  44, 53, 55, 188, 218 Friend See The Political, Friend

Jellinek, Georg  11–12, 31, 47, 72–75, 79, 89, 108 Jellinek, Walter  12 Jesus Christ  93–97, 100 See also Political Theology

General Will (Volonté Générale)  13, 62, 104, 130, 143 Generative Paradox  144, 163–165 Grundgesetz  3, 24, 32, 64, 174–176, 197–198, 202–204 Article 21  24, 32, 189, 191–192, 197–199, 202, 205–208, 212, See also Party Bans Article 67  1–2, 16, 24, 32, 193–199 See also Vote of No Confidence, Positive Article 79  199, 202 See also Eternity Clause German National People’s Party (DNVP) 2, 57 God  51–52, 115, 148 See also Political Theology Grotius, Hugo  115 Guarantee of Constitution  186, 190–192 See also Absolute Constitution Guarantee of Constitutional Law  186, 190–191 Guarantee of Institution  187 Guardian of the Constitution  4, 15, 32, 59, 84, 153–154, 166–171, 194, 199, 202 See also Dictatorship, Commissarial Guizot, François 42, 46 Gurian, Waldemar  94

Laband, Paul  10–11, 119 Law of the Nation (Volksrecht)  9–10, 17, 20 Legal Revolution  3–5, 17, 40, 80, 148–149, 157, 173, 177, 178, 191–192, 195–196, 199, 201, 204, 208, 210–211 See also Weimar Constitution, Article 76 Legitimacy Charisma 92–95 Office Charisma  93–94 Rational-Legal  44, 53, 58, 68, 92–93, 158 Leibholz, Gerhard  16 Lenin, Vladimir I.  3, 17 Liberalism See Basic Rights, See bourgeois Rechtsstaat, See Separation of Powers Metaphysics  40–43, 55, 180 Locke, John  115–116 Loewenstein, Karl  12, 108, 175, 204, 212 Löwith, Karl  26–29, 56, 90, 120, See also Occasionalism

Habermas, Jürgen  70, 91, 216 Hauriou, Maurice  146–147

Kaufmann, Erich  16 Kelsen, Hans  11–19, 35, 42, 44, 50, 51–52, 88, 141, 143–144, 154, 156, 167, 171, 196–197, 217 Kirchheimer, Otto  47, 64, 139, 146, 178, 179, 196 Koellreutter, Otto  16

Machiavelli, Niccolò 77, 159 Magnus Homo See State, Giant Man Malebranche, Nicolas  25 Marx, Karl  48, 81 Maus, Ingeborg  18, 20, 28, 36, 38, 40, 46, 124, 144, 159, 162, 163, 174, 189, 197

 239

Index  Meinecke, Friedrich  31, 72, 76–79 Methods and Orientation Dispute (Methoden- und Richtungsstreit)  7, 12, 17, 20–21 Meyer, Georg  11–13 Mill, John Stuart  41–42, 62 Montesquieu, Baron  166 Nation  6, 8–10, 12, 17, 87–88, 131, 165, See also The People Natural Law  17, 19–20, 43–44, 48–52, 94, 111, 115–116, 181, 211 Justice-Based  45, 102, 115–116, 119, 181 Scientific  102, 111, 115–118, 121–122, 181 Naumann, Friedrich  12, 98 Nazi Party (NSDAP)  1–5, 16–17, 23, 25–30, 33, 36–37, 48, 57, 82, 85, 88, 101, 175, 181, 192–197, 211–215 Negative Majority  3–4, 85, 167, 176, 189, 192–196, 199, 202, 212 See also Vote of No Confidence Neo-Hegelianism 20 Neo-Kantianism  10–11, 18, 73, 78, See also Statutory Positivism Neumann, Franz L.  50–51, 56, 166–167, 189 Nietzsche, Friedrich  28, 42, 50–51 Night of Long Knives  26 Nominalism 111, 118 Nomos  32, 42, 95, 136–137, 146–151, See also Concrete Order Normative Power of the Factual  34, 73, 148–149, 211 Normativism See Statutory Positivism Oakeshott, Michael  110–111 Oath Trauma  5, 15–16, 24, 169–170, 194 See also Weimar Constitution, Article 42 Occasionalism  25–30, 41, 90, 175, 215 Office Charisma See Legitimacy, Office Charisma Ott Simulation  19 Pacta Sunt Servanda  64–67 Papen-Gayl Plan  192 Party Bans  24, 32, 189, 191–192, 197, 199, 202, 205–208, 212, See also Grundgesetz, Article 21 People, The  6–8, 11–17, 22, 25, 30, 36, 45–46, 55–58, 62–63, 88, 98, 116, 134, 141–144, 151, 160–165, 169, 177, 180, 199, 201–202, 208–211, 217–219 Pindar  95, 150–151 Plato  82–84, 133, 171 Political, The  10, 15, 23–33, 36, 40–41, 43, 45- 48, 51–54, 57, 59–60, 65–68, 69–76, 78–91, 94, 96–104, 107, 109–110, 113–114, 117–122, 124, 126–127, 129–131, 133–134, 135–136, 140–146, 150–152, 156, 160, 165, 179–181, 189–192, 195, 200–202, 212–219

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Enemy  27, 29, 31, 59, 66–68, 70–71, 79–85, 87, 90, 100, 104, 117, 120, 171, 179, 192, 200, 206–207 Friend  27, 29, 31, 66–68, 70–71, 79–91, 100, 104, 124–125, 152, 170, 180 Homogeneity  79, 87–90, 124, 127 Status  31, 46, 59, 67, 70, 71, 77–79, 79- 80, 86, 87–92, 95–98, 101–104, 105, 107, 111–114, 122–134, 135, 138, 141–145, 152, 153–158, 164–167, 174–184, 189, 191, 199–200, 212 Political Constitutionalism  209 Political Theology  50–54, 79, 111, 120–122, 148, 153, 164, 176, 218, See also Disenchantment Polycracy 60 Polytheism See Political Theology Pope, The  93–95, 102, 158 Popitz, Johannes  25, 60 Pouvoir Constituant See Democracy, Constituting Power Pouvoir Constitué See Democracy, Constituted Power Powers, Direct and Indirect  31, 48, 67, 86, 102–104, 122–123, 128, See also Hobbes-Crystal President (Reichspräsident)  1–2, 5, 15, 24, 32, 35, 137, 154–158, 166–171, 190, 194, 198–199 Preuß, Hugo  12, 19, 61, 98, 130, 167–169, 182, 193 Preußenschlag  17, 195–197 Protego Ergo Obligo  112 Protestantism  51, 82, See also Political Theology Quis Judicabit? See Decision Raison d’État  70, 76–79, 206 Ratio Status  76–80, 142, See also The Political, Status Rational-Legal Legitimacy See Legitimacy, Rational-Legal Rationalization  23, 114, 152, 155, 158, 178, 188, See also Disenchantment Rawls, John  29, 216 Realpolitik 9 Reichsregierung (Governing Cabinet)  1–3, 24, 168, 170, 193–194, 196 Reichsgericht (Federal Court)  12 Reichspräsident See President Reichstag (Weimar Parliament)  1–5, 24, 57, 166–171, 193, 194–195, 204, 215 Reichstag Fire 4 Relativism See Political Theology Representation  4, 15, 28, 31, 40, 45–47, 59, 62–63, 68, 71, 77, 90–104, 112–114, 122–128, 133, 143–144, 146, 151, 154–155, 158, 160–165, 169–170 Revolution of 1848  9, 39, 47, 50, 161 Rousseau, Jean-Jacques  104

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Separation of Powers  24, 44, 68, 128, 159, 184, 218 See also bourgeois Rechtsstaat, Organizational Principle Sieyès, Abbe de  163–164 Smend, Rudolf   16, 53–54, 143 Social Contract  8, 97, 111, 115 Social Democratic Party of Germany (SPD)  2–5, 12, 37, 56, 101, 195–196 Sophism 149 Sorel, Georges  51–52 Sovereignty  6–7, 14–21, 26, 40–45, 48, 50–53, 61–68, 73–76, 87, 90–103, 112, 115–121, 127, 130, 133, 137, 141–145, 148, 154–166, 175, 177, 181, 190, 195, 201, 210–212 Spinoza, Baruch  111–113, 119, 121 Stammler, Rudolf   11 Stasiology 82 State  4, 7–19, 23–25, 28, 30–34, 36–40, 43–48, 52, 54, 57–61, 64–68, 69–80, 85–89, 94, 97–105, 106–134, 135–147, 150–152, 153–155, 158, 164, 167–169, 171, 174–178, 180–190, 195–200, 201–202, 210–215, 219 Federal  145, 176, 189, 194–199, 202, 212 Giant Animal  111 Giant Man  109, 111, 114, 132–134 Imperium Rationis  121, 131 Mechanical State  22, 31–32, 39, 53, 77, 86, 109–114, 126–133, 137, 140, 179, 199 See also Statutory Positivism Mortal God  109–114, 127, 132 Neutralizing Third  31, 77, 97, 103, 111, 122, 124–30, 134, 152 Organic State  19, 131 Qualitatively Total State  59, 126, 198 Quantitatively Total State  48, 60, 67, 77, 199 State of Nature  31, 38, 66–67, 77, 86, 99, 103, 108–112, 115–121, 131, 134, 161 See also Thomas Hobbes State of Siege  156, See also Dictatorship State of War  64, 67, 100, 117–120, 150 See also Thomas Hobbes Statutory Positivism  6–12, 14–22, 31–35, 44, 49, 57–61, 64–65, 68, 73, 76, 89–95, 109–111, 113, 129, 136, 138, 141, 145–151, 154–160, 171, 173, 177, 183, 186, 190, 201–202, 209–211, 217 Strauss, Leo  21, 27, 67, 71, 83, 91, 116–117, 175 Super-Legality  9, 16, 19–22, 135, 146, 147, 151, 153, 156, 171, 190, 199, 211–212 See also Concrete Order Thinking; See also Nomos Thoma, Richard  12–15, 178 Total Movements  30, 52, 56–60, 64, 68, 74, 78–80, 85, 123, 177

Tripel, Heinrich  16, 61 Truth  41–44, 50, 97–103, 114, 118, 121–123, 125, 132–134, 145, 176, 180, 184, 209, 219 Vaihinger, Hans  42, 97 Value-Neutrality  22–23, 31, 38–39, 57–59, 65, 109, 112, 124–126, 129, 169, 178, 196, 211, 214 Voegelin, Eric  13, 50, 85, 107, 110 Volk See Nation Volksrecht See Law of the Nation Volksgeist 8, 12, 20 von Gerber, Carl Friedrich  11 von Gierke, Otto  11, 19 von Hindenburg, Paul  1–5, 15, 24, 170, 177, 197 von Papen, Franz  2, 4, 192, 196 von Savigny, Friedrich Carl  8–9, 20, 99, 160 von Schleicher, Kurt  1–2, 4, 17, 25, 192, 196 von Stein, Lorenz  11, 19, 46 Vote of No Confidence  1–2, 16, 24, 32, 193–194, 197–199 See also Weimar Constitution, Article 54 Positive  32, 199 See also Grundgesetz, Article 67 Weber, Max  18, 49–52, 75, 92–94, 118–120, 204 Weimar Constitution  1- 7, 12–17, 22–23, 27, 33, 37, 45, 47, 61, 65, 68, 72, 98, 139, 145, 166–171, 174–180, 182, 187–189, 193, 197–199, 201–202 Article 1  137 Article 25  1, 3, 4, 170 Article 41  168 Article 42  5, 24, 194 Article 48  2–5, 168–170, 190–192, 196–197 Article 53  2 Article 54  2, 24, 193, 194, 196 See also Vote of No Confidence Article 76  3, 14, 22–24, 61, 64, 139, 178, 193, 198, 204 See also Constitutional Amendment See also Legal Revolution Article 109  185 Article 114  137, 183 Article 118  188 Article 128  188 Article 129  137, 183–187 Article 130  186–187 Article 135  187 Article 137  187 Article 153  187 First Principal Part  17, 63, 176 Second Principal Part  17, 23, 174–176, 179–183, 189 Weimar National Assembly  12, 161–166 Will of All (Volonté des Tous)  62, 104