Abstract
The piece responds to critics of Scheuerman’s END OF LAW: CARL SCHMIT IN THE TWENTY-FIRST CENTURY. Despite our disagreements, the book’s critics and I share the view that Schmitt speaks to our times, albeit in deeply troubling ways. Precisely how and why Schmitt remains pertinent, however, remains a matter of dispute. Inspired by the un-Schmittian hope that deliberation might buttress our common quest to overcome democracy’s present crisis, my response endeavours to identify those disagreements. Though I am unable to address all of them satisfactorily, my aim is to advance our conversation. Most important, the critics and I disagree somewhat about how best to understand Schmitt’s relationship to contemporary authoritarian populism.
An author is always grateful to learn when his or her book is deemed worthy of careful critical analysis by such esteemed and thoughtful colleagues. Unfortunately, in this case, my gratitude is tainted somewhat by the sober realization that interest in The End of Law: Carl Schmitt in the Twenty-First Century 1 says more about our pathological political universe, and Schmitt’s role in it, than my own modest scholarly accomplishments.
Despite our disagreements, the book’s critics and I share the view that Schmitt speaks to our times, albeit in deeply troubling ways. Precisely how and why Schmitt remains pertinent, however, remains a matter of dispute. Inspired by the un-Schmittian hope that deliberation might buttress our common quest to overcome democracy’s present crisis, here I endeavour to identify those disagreements. Though I am unable to address all of them satisfactorily, my aim is to advance our conversation.
Why read Schmitt?
My book argues that we should read Schmitt because he offers an occasionally incisive – but ultimately untenable and politically disastrous – analysis of what Anglophone jurisprudence describes as the problem of legal indeterminacy. Beginning with his earliest writings on judicial decision-making, Schmitt envisioned an unbridgeable gap between legal norms and concrete decisions. He embraced the thesis that legal materials are always necessarily open to a variety of potentially contradictory interpretations. Since Schmitt was first and foremost a jurist, this legal-theoretical insight undergirds, in oftentimes complicated ways, his views on a host of political-theoretical and even social-philosophical matters. It represents the ‘red thread’, in sum, that allows us to unravel the apparent mysteries of Schmitt’s messy oeuvre.
Without attention to Schmitt’s long-standing interest in legal indeterminacy, we cannot grasp his enthusiastic embrace of National Socialism in 1933. Although some reviewers of the volume’s first edition interpreted my project as a contribution to Nazi-hunting intellectual history, I tried chiefly to take Schmitt’s jurisprudential concerns seriously, highlighting how they invited him to participate actively in the creation of an identifiably postliberal legal order. Nazism appealed to the right-wing authoritarian Schmitt because he mistakenly believed that it offered a possible resolution to a legal-theoretical question that had always fascinated him: if general legal norms and rules (and the liberal rule of law) cannot provide sufficient regularity or determinacy in law, how then might they be achieved? How best to realize legal determinacy beyond liberal democracy?
As End of Law documents, Schmitt played a major role in justifying anti-Semitic purges of the legal profession: He regularly argued that only a properly ‘reformed’, more fully ‘homogeneous’ corps of jurists could provide for the legal determinacy necessarily denied the liberal rule of law. Supposedly, Nazi law could only offer the requisite legal regularity when its key players consisted exclusively of ethnically ‘homogenous’ jurists properly schooled in National Socialist ideology.
This remains a decidedly unfashionable way to read Schmitt. His aficionados typically prefer selectively tapping his ideas to transform him into anything and everything except a right-wing authoritarian (and ultimately Nazi) jurist. Most miraculously perhaps, Schmitt gets made over into a radical democrat, or perhaps a German Abraham Lincoln who worked heroically to save Weimar, despite his occasional – but allegedly understandable – disregard for legal niceties. In the process, scholars downplay the immanent legal-theoretical reasons for Schmitt’s crucial Nazi interlude. Reminiscent of Hannah Arendt, they seem to have a hard time imagining how Schmitt, ‘whose very ingenious theories about the end of democracy and legal government still make for arresting reading’, could ever have endorsed crude racist and anti-Semitic ideas about the law or jumped into bed with Hitler, for reasons other than those relating to personal or perhaps political opportunism. 2
This scholarly tendency ignores the obvious fact that even ‘ingenious’ intellectuals – US Americans only need think of John Calhoun or Woodrow Wilson – have endorsed retrograde racist ideas. It also conveniently circumvents the prospect that Schmitt’s extreme views about legal indeterminacy might offer some lessons. Although it would be unserious to associate Schmitt’s ideas with those of present-day legal scholars (including many on the political left) similarly preoccupied with the enigmas of legal indeterminacy, he provides a timely reminder that overheated claims about it mesh poorly with the rule of law and democratic constitutionalism, precious normative and institutional aspirations again – as in interwar Europe – under attack.
A number of the commentators whose astute comments appear here appreciate my efforts to provide what the historian Peter Caldwell describes as a ‘big, systematic reading’ highlighting Schmitt’s long-standing preoccupation with legal indeterminacy. However, Caldwell questions whether Schmitt’s views were not simply critical and deconstructive but also constructive. He instead reads Schmitt as chiefly interested in ‘ripping apart the notion of law, of legal security’, and doubts that we should take his apparent attempt to reconstruct legal determinacy along fascist lines too seriously. As I tried to make clear in End of Law, Schmitt’s 1930s ‘answer’ to legal indeterminacy was not only politically and morally deplorable but also incoherent. Still, we need to delineate our evaluation of Schmitt’s ideas from an interpretation of his intentions. However shocking, the textual evidence remains strong that Schmitt believed that an ethnicist and anti-Semitic reorganization of German law could both help establish legal regularity (and determinacy) and serve his preferred authoritarian political goals. Caldwell is right to note that Schmitt exhibited exactly the sort of cynicism about contemporary liberal democracy that has again become commonplace. But this does not free us from the scholarly task of digging into Schmitt’s unpalatable writings from the ‘30s and trying to make sense of their unsettling logic.
The legal scholar Anna-Bettina Kaiser worries that my emphasis on continuities in Schmitt’s legal thinking leads me to miss key shifts, particularly as they concern emergency powers and Weimar Constitution’s Article 48. Her criticism may rest on a misunderstanding: It would be absurd to deny the existence of tensions between and among Schmitt’s myriad writings, penned over the course of many decades. His writings on emergency powers and Article 48 are indeed replete with them. On what I view as the main issue at hand, Kaiser and I (along with Hermann Heller, Clinton Rossiter and many others, including David Dyzenhaus) basically agree: Despite what his many defenders now claim, Schmitt ultimately blurred the boundaries between commissarial (temporary, constitutional ‘protective’) and sovereign (transformational) emergency dictatorship. Kaiser’s worry is that I see evidence for this blurring as early as 1924, which means that I obscure the fact that a ‘qualitative’ shift in Schmitt’s probably occurred only in 1929 or 1930, in response to Weimar’s increasing fragility. This is why we should not endorse my ‘continuity’ but instead her ‘chameleon’ thesis about Schmitt, according to which he always reacted, in otherwise sometimes incongruent ways, to changing political contexts. Fundamentally, Schmitt was a ‘situational’ thinker, not one we should read through the flawed lens of the so-called ‘continuity-thesis’.
Kaiser’s reading of Schmitt as a situational thinker builds on a venerable scholarly lineage; it offers some valuable insights. Yet it also downplays continuities in Schmitt’s thinking (e.g. his preoccupation with legal indeterminacy) that operate on a relatively abstract theoretical plain and thus leave room for shifts at the level of less abstract or fundamental matters (e.g. emergency powers and Article 48). The ‘Schmitt as chameleon’ reading cannot make proper sense of those deeply rooted continuities, whereas mine can do so while acknowledging Schmitt’s shifts, at least when read as various attempts to sketch out the implications of his fundamental jurisprudential preoccupations. Correspondingly, End of Law does not try to interpret the early Schmitt anachronistically in light of his mature Nazi involvements. Rather, it explains why both his early and later (Nazi) writings can be viewed as attempts to come to grips with the challenges of legal indeterminacy and alleged limitations of ‘normativistic’ liberal jurisprudence, Schmitt’s lifelong target.
What do we gain?
We also disagree somewhat about what we can gain or learn from reading Schmitt. Like the legal philosopher David Dyzenhaus, I worry about the tendency to overstate Schmitt’s novelty and originality, thus discounting competing voices in mid-century German jurisprudence (e.g. Hermann Heller, Hans Kelsen), as well as less fashionable but insightful Anglophone contemporaries (e.g. Clinton Rossiter), who have more to offer in terms of constructive thinking about law and politics. Dyzenhaus probably goes further than he needs to go, however, when announcing that ‘we don’t need Schmitt…for the insights into the problems of liberal democracy that Schmitt is supposed to offer’. The ‘Schmittian logic’ he perceptively diagnoses among present-day right-wing jurists remains, of course, at its core a Schmitt-ian logic. I would have a hard time making sense of Dyzenhaus’ own vital jurisprudential contributions without noting how they have creatively responded to Schmitt and his legacy. In his book on Weimar jurisprudence, Dyzenhaus salvaged the neglected social democratic Heller. 3 Yet Heller, like Dyzenhaus, was not only hostile to Schmitt but found himself regularly forced to engage, with great care and nuance, Schmitt’s ideas. For Heller, Dyzenhaus (and, yes, this author as well), Schmitt has served as a productive target precisely because of the sometimes difficult challenges he poses to those of us who reject his ideas. We should neither overstate nor ignore those challenges.
Dyzenhaus’ somewhat irritated comments seem to have been provoked by the constitutional lawyer Sanford Levinson’s selection of Schmitt over Ronald Dworkin to Levinson’s mythical ‘jurisprudential hall of fame’. Though grateful to Levinson for his positive remarks about my book, I find myself casting my ballot alongside Dyzenhaus for Dworkin and against Schmitt. To be sure, End of Law underscores many reasons for taking Schmitt’s diagnosis of liberal democracy seriously. Levinson is correct to highlight that Schmitt tackled a stunning range of political and theoretical issues over the course of his long career. But my book also shows that too much of Schmitt’s critique of liberalism is misleading and unfair. Schmitt’s method is neither akin to Weber’s usage of ‘ideal-types’ nor Habermas’ model of ideal discourse. In striking contrast to both authors, Schmitt relied on misleading historical idealizations that conveniently functioned as troublesome normative measuring rods, for example, Schmitt’s highly selective interpretation of 19th liberal ideals of parliamentarism (which he exploited to discredit contemporary real-life legislatures), or his reduction of a rich tradition of liberal legal thinking to a ‘mechanical’ hyper-formalism allegedly hostile to any exercise of judicial discretion. Schmitt’s diagnosis and critique are less capacious than Levinson claims because Schmitt’s method is flawed. Schmitt concocts liberal and democratic strawmen in order, predictably, to discredit liberal democracy. Not just Schmitt’s obvious deficiencies as a political creature (and Mensch), but also his flaws as a political and legal thinker, taint his assault on liberal democracy.
My relatively sceptical view of Schmitt’s prospective constructive resources is also why I doubt that his theory can serve us as a building block for a defensible political and legal theory, something very different from using him as a foil for thinking clearly about difficult theoretical issues. The liberal ‘reception’ of Schmitt Kaiser ascribes to Habermas is unrelated to what we find in Ernst-Wolfgang Böckenförde. The latter but not the former actively integrated Schmittian ideas into his theory – with decidedly mixed results, as Kaiser concedes. This is not to deny a priori that some of Schmitt’s specific insights can potentially serve as a starting point for further scholarly inquiry. 4 But I doubt that one can take much of Schmitt on board without reproducing his theory’s illiberal and anti-democratic ills.
In this vein, I question the value of turning to Schmitt to analyse the dangers of constitutional systems with loose amendment mechanisms that allow for (allegedly dangerous) ‘legal revolutions’. Schmitt spent Weimar’s final years working to transform a flawed yet functioning liberal democracy into an authoritarian (and ultimately Nazi) order. By 1930 at the latest, he aimed for a (supposedly) constitutional counter-revolution, undertaken under the auspices of the Weimar president, interpreted in a plebiscitary manner as the only legitimate representative of the entire German people. By means of his latitudinarian and legally suspect interpretation of executive power, Schmitt paved the way for executive-engineered constitutional change and, ultimately, Weimar’s demise. We need to keep this context in mind as we evaluate political theorist Ben Schupmann’s retrieval of Schmitt’s disingenuous critique of peaceful ‘legal revolutions’ via constitutional amendment.
What Schmitt targeted was the constitutionally reasonable position – in Weimar, and in many other democratic contexts as well – that substantial political majorities might employ amendment mechanisms to bring about far-reaching change. Precisely the view Schupmann wants us to salvage was pointedly rejected by Schmitt’s critics on the democratic left. As Franz L Neumann observed, Schmitt was of the opinion that amendments to the Constitution could not assail the “Constitution as a basic decision.” Constitutional amendments might modify only certain aspects of the Constitution. The fundamental decisions regarding value preferences that the Constitution embodies, Schmitt thought, could not be modified even by the qualified parliamentary majority which had the power to amend the Constitution.
5
For the left-wing reformist Neumann, Schmitt’s position was untenable. Like others in Weimar, he interpreted its constitutional system as permitting far-reaching political change via peaceful, constitutional and broadly popular channels. Whatever the possible weaknesses of this model, they pale in comparison with Schmitt’s preference for executive-dominated, legally bogus counter-revolution. With Neumann, I hope that radical change can avoid the nasty quagmires of the modern revolutionary experience. Against Schmitt (and perhaps Schupmann), peaceful, democratic constitutional ‘revolutions’ are preferable, whenever and wherever possible. Schupmann is correct to see Schmitt as relevant to authoritarian populist constitutional politics. But his relevance derives not from Schmitt’s critique of peaceful ‘legal revolutions’, but instead from the ways populists are now reproducing elements of Schmitt’s own authoritarian model of top-down plebiscitary constitutional change.
Authoritarian populism
Other participants in the debate follow Schupmann in relating Schmitt’s theory to present-day authoritarian populism. In a fascinating discussion that builds on while transcending some of my worries about Schmitt’s overstated juxtaposition of norms and decisions political theorist Nomi Lazar points to the necessity of a more nuanced view of the nexus between constitutional norms and political identity. With some echoes of Hermann Heller, for Lazar constitutions are not merely matters of legal normativity but also political identity, though not in the flawed manner proposed by Schmitt. We require a better understanding of the dynamics of what Lazar dubs ‘constitutional alchemy’ in part because authoritarian populists ‘know that constitutions play these non-legal roles, regardless of regime type’, and they have ably exploited constitutionalism’s political facets.
Legal theorist Lars Vinx vividly outlines how authoritarian populism reproduces untenable Schmittian ideas about pseudo-democratic popular acclamation and constituent power. I am sceptical of the fashionable tendency to read Schmitt as a political theologian, but Vinx has convinced me that Schmitt’s quest for a charismatic strongman, ruling on the basis of mass acclamation, contains some theological moments. As Vinx aptly notes, Schmitt’s relevance today stems from his ‘sophisticated redescription of the democratic ideal that pits that ideal into the service of political authoritarianism’. Vinx is also justified in worrying that emphasizing how Schmitt’s jurisprudence primed him to embrace Nazism might inadvertently lead us to miss today’s real political danger, namely the possibility of democratic decay that occurs along the lines theorized and endorsed by Schmitt. Still, at present it remains unclear whether authoritarian populism will culminate in some identifiably distinct, stable regime type and not evolve into something even worse. Since I agree with Dyzenhaus that ‘Schmitt’s logic provides no principled stopping point for authoritarian rule between liberal democracy and something worse’, analysing Schmitt’s embrace of fascism, unfortunately, remains politically pertinent. What Judith N Shklar said in 1989 is even more true today: ‘anyone who thinks that fascism in one guise or another is dead and gone ought to think again’. 7
Significantly, the authoritarian populist governments taking power in many parts of the world remain identifiably and even aggressively supportive of market liberalism. If Vinx and others are right to view Schmitt as authoritarian populism’s ‘hidden’ theorist, this may help answer Caldwell’s important questions about the relationship between Schmitt’s theory and capitalism. On the one hand, Schmitt seems to have defended some version of authoritarian capitalism, albeit one lacking many traditional ‘liberal’ features. On the other hand, his congenital antiliberalism made him hostile to possessive individualism, economic globalization and other features of ‘bourgeois’ society. So, perhaps, Schmitt would have preferred ‘an identity-oriented Absolutism’ to the ‘market-oriented dictator of the Ordoliberals’?
On this matter, as on many others, there is more than enough room for reasonable debate and disagreement. As a matter of intellectual history, however, there is no question that Schmitt, during the 1930s, sought an authoritarian capitalist ‘qualitative total state’, as critical contemporaries like Ernst Fraenkel rightly noted. 8 Revealingly perhaps, we find some parallels between that institutional model and worrisome trends within at least some versions of present-day authoritarian populism. 9 On this matter, as on too many others, today Schmitt remains eerily and disturbingly pertinent.
