Abstract
This article reflects on William E Scheuerman’s The End of Law and the value of the liberal rule of law. It puts Scheuerman’s concerns about Schmitt’s attacks on the liberal rule of law in dialogue with Schmitt’s theory of ‘legal revolution’. It argues that, although Schmitt was neither a liberal nor a democrat, his work on legal revolution can help liberals respond to populist attacks on liberal constitutional essentials.
When he first wrote The End of Law in 1999, William E Scheuerman did so to halt a growing stream of English-language scholarship misrepresenting the relationship between Schmitt’s juridical thought and his Nazism and using his ideas to develop alternatives to liberalism. 1 In the second edition, Scheuerman writes that he failed: that stream became a river and Schmitt became a household name. But this outcome only means that Scheuerman’s work is more relevant today. The End of Law is both an essential starting point for understanding Schmitt and an important corrective against naïve appropriations.
Schmitt’s diagnosis of problems of the liberal rule of law is his main attraction. Scheuerman distils Schmitt’s argument to the following: The liberal rule of law is unideal. It cannot actually be normalized, because every legal decision ultimately rests on an indeterminate moment of will. 2 Even constitutions are riddled with such moments, which allow that arbitrary will to burst through its rational-legal structure. 3 Despite liberal arguments to the contrary, rational-legal legitimacy ‘is essentially a question of power’. 4 Parliament is not a rational deliberative system, it is a façade masking how the powerful use the law to advance their own interests. 5 Finally, the state cannot actually guarantee classical liberal autonomy, factions compete to use the state to impose their narrow worldviews. 6 Schmitt’s diagnoses propel readers towards his conclusions: If the problem of legal indeterminacy reveals that the liberal rule of law only masks raw power, why not unshackle the state and law from this façade entirely? Could not a postliberal regime realize a more just and equitable public order? Why not empower the executive to enact the people’s will directly? In short, why not abandon the liberal rule of law?
However tempting these conclusions may appear, The End of Law proves that they are no solution to problems of the liberal rule of law. Predictable state action, guaranteed by the liberal rule of law, is an essential element of individual freedom. Without the liberal rule of law, both predictability and freedom are lost. A life with that kind of insecurity would be nasty, brutish and short.
Schmitt’s own experience from 1934 to 1936 demonstrates the value of the liberal rule of law. 7 For starters, the 1934 ‘Night of Long Knives’ illustrates exactly what a state uncoupled from the rule of law looks like. In his legal analysis, Schmitt did not need to do much to fit Hitler’s extralegal assassination of his enemies into his Weimar theories. He characterized Hitler’s actions as the epitome of (postliberal) legality, writing that the decision on how to defend the Volk against threats lays entirely within the Führer’s jurisdiction. 8 Despite his fawning and rationalization of its murders, in 1936 the Nazi regime suddenly turned on Schmitt. 9 As it threatened him, Schmitt pined for the security of the liberal rule of law. 10 Fortunately for Schmitt, it lost interest in him just as quickly. But he had helped to lay the groundwork for the murder of millions.
This experience is a microcosm of the true lesson of Carl Schmitt. Reflecting on it should leave us with ‘a sense of the indispensable virtues of the rule of law as well as legitimate unease about its status and prospects today’. 11 However unideal the rule of law may be, its absence produces a far worse state of insecurity and terror.
The End of Law can give the impression that Carl Schmitt is just an object lesson for liberal democrats in how not to defend liberal values. To be sure, Schmitt is that. But Schmitt has something more to offer to liberals. Because of his hostility towards liberal democracy, Schmitt confronted head on a contradiction at the heart of liberal democracy, one its defenders are sometimes reluctant to face: a latent tension between democracy and liberalism. As he studied Weimar politics, Schmitt realized that its democratic legal procedures could be turned against the liberal rule of law and liberal democracy itself. Weimar extremists hoped to exploit the constitutional design of liberal democracy in order to revolutionize it legally. Today, enemies of liberal democracy are once again exploiting legal revolution. Liberals can learn from Schmitt’s diagnosis of legal revolution in order to understand better how to defend liberal constitutionalism. In what follows, I sketch how Schmitt’s thought might help liberals.
This latent contradiction between democracy and liberalism originates in how modern liberal democracies produce legitimate law. Weimar’s democratic proceduralists, such as Thoma and Kelsen, argued that legitimate law is produced ‘immanently’: when law is enacted according to a positive legal procedure, reflecting the will of a numerical majority or supermajority of citizens. 12 They believed that, to treat democracy non-trivially, no political values or candidates could be excluded from the democratic process a priori. As long as a law met those procedural requirements, then it would be both legal and legitimate. As long as it met those requirements, its content was irrelevant. In principle, any value could become law and any candidate could hold office. Schmitt characterized proceduralism as the commitment to the ‘equal chance’ for every citizen to see their values enacted into law. 13
This commitment culminated in the supremacy of the amendment clause. Legitimate constitutional law is also produced immanently. Any political value could be written into the constitution, as long as the positive procedural requirements for constitutional amendment were adhered to. Similarly, any article could be abrogated. For the Weimar Constitution, Article 76 enabled two-thirds of parliamentarians to amend any and every article of the constitution.
Schmitt was neither a liberal nor a democrat. Perhaps because of that opposition, he recognized that, when supreme, democratic legal procedures can be used to alter and abrogate the laws that institutionalize essential features of liberal democracy. The constitutional supremacy of democratic legal change made revolution a legal possibility. In this way, democracy can be turned against liberal constitutionalism, both by constitutional amendment and also through democratically elected politicians’ use of the political premium of their legal possession of state power. 14 An extremist party could use the democratic electoral process to obtain the authority to use the state apparatus and impose its values legally. All it needed to do was churn up enough support.
Schmitt believed that legal revolution exposed a legitimation dilemma at the heart of liberal democracy. Either legitimacy really is determined through democratic legal procedures, culminating in the supremacy of the amendment clause. If so, then it would indeed be both legal and legitimate to transform a liberal democratic state, article by article, into an illiberal authoritarian state – as long as doing so was popular and adhered to the legal procedures in effect. Or the principles of liberal constitutionalism are an essential precondition for political legitimacy. If so, the articles enacting liberal constitutionalism must be supreme and guaranteed against both amendment and against otherwise legal acts by democratically elected officials. But this means that the will of voters may be denied legitimately when it seeks to revolutionize constitutional essentials.
Weighing in on the dilemma, Schmitt argued that a constitution, by definition, aims to maintain a stable public order and political identity over time. 15 It could not coherently provide for its own revolution. 16 Even if legally possible, it would not be legitimate to use amendment procedures to convert a liberal democracy, article by article, into a totalitarian state.
Between his state and constitutional theory and his conservative disdain for democracy, Schmitt thought it better to take legal revolution off the table wherever possible. He theorized defences against legal revolution, against its direct form through constitutional amendment and its indirect form through the political premium of the legal possession of state power. Schmitt argued that constitutional essentials, those articles that enact its identity, must be guaranteed against legal change. 17 Amendment of constitutional essentials must be legally circumscribed. Schmitt also argued that parties openly hostile to that identity, its political enemies, could legitimately be excluded from democratic processes. 18 Otherwise, if elected to hold office, they could undermine constitutional essentials without resorting to constitutional amendment. For example, by taking advantage of legal indeterminacy to rule by will, by using departmental appointments to dismantle the separation of powers or by weaponizing emergency powers.
Schmitt was not motivated by any belief in the intrinsic value of liberal democracy. His diagnosis of liberal democracy’s weaknesses is Janus-faced: available to both its friends and enemies. Although Schmitt’s work on legal revolution cannot be treated uncritically, there are two pressing reasons for liberal democrats to engage with it today.
The first is populism. Populism is the great challenge threatening the liberal rule of law today. Although Schmitt wrote in a different context, the method of legal revolution that he identified almost a century ago is the same method that populists are using to backslide liberal democratic constitutions right now. Democratically elected leaders of states such as Hungary, Poland, India and the United States are using both constitutional amendment and the legal possession of state power to undermine the liberal rule of law and other constitutional essentials. Schmitt’s diagnosis of and defences against legal revolution may be a starting point to consider ways to secure liberal democracy against populists and other illiberal movements.
The second involves those defences. For better or for worse, the ‘militant democratic’ features of Germany’s Basic Law, including its eternity clause and party bans, are indebted to Schmitt. 19 The defences against legal revolution that Schmitt theorized exist in democratic constitutions around the world. 20 Yet their legitimacy has been challenged. They seem formally undemocratic. And they seem to expand the legal indeterminacy and discretionary powers that Scheuerman rightly worries about. Democrats view these defences with trepidation because it is unclear whether they can be reconciled with democracy. Normative theories of militant democracy justify them as a defence of democracy (hence militant democracy). 21 Schmitt did not. He theorized them as a defence against legal revolution, against democracy. By returning to their origins in Schmitt’s thought, it is possible to reconsider both their legitimacy and their limits.
As Scheuerman shows us, serious study of Schmitt teaches the indispensability of liberal constitutional essentials. But legal indeterminacy is not the only threat to the liberal rule of law. Today, both populism and militant democracy challenge liberal democracy. They reveal tensions and contradictions among our most important values. Schmitt’s enmity towards liberal democracy gave him a different perspective on those challenges. Although his work raises fundamental questions about liberal constitutional legitimacy and design, those questions can help us better protect it. They include: How can constitutions guarantee the liberal rule of law and what does that mean for democratic practices? What are the limits of legitimate democratic legal change and how can those limits be enforced constitutionally? And which is more essential to liberal democratic legitimacy: democratic legal change or liberal constitutionalism?
