Historical-sociology vs. ontology

I Carl Schmitt’s Legality and Legitimacy and the impossibility of democracy

In Legality and Legitimacy, Schmitt defines the legislative state as ‘a particular type of political system that is distinctive in that norms intended to be just are the highest and decisive expression of the community will … and all other public functions, affairs and substantive areas must be subordinated to them’ (Schmitt, 2004: 3). The legislative state is synonymous with the rule of law; ⁹ however, Schmitt holds the phrase ‘the rule of law’ to be misleading, as

… laws do not rule; they exist only as norms. There is no ruling and mere power at all anymore. Whoever exercises power and government acts ‘on the basis of law’ or ‘in the name of the law’. He does nothing other than what a valid norm permits jurisdictionally. (Schmitt, 2004: 4)

As a result, the legitimacy of the rule of law is fundamentally different from that of a monarch: the legitimacy of a monarch is substantive, that is, he or she is the ruler because of power granted from God or some other eternal source of justice external to the system of law. In contrast, the legitimacy of the legislative state is strictly formal, that is, according to Schmitt, it makes no claim to eternal justice but rather its legitimacy is entirely the result of the equitable nature of its administration and process of law creation. The second source of legitimacy within a legislative state is therefore the equal chance of all citizens to form the law, by means of the representative democratic process. Unlike the dualistic structure of state vs. society which existed under constitutional monarchy, in a democratic state ‘the state’s will and the people’s will [become] identical’ (Schmitt, 2004: 24) or in other words there exists complete ‘identity of the rulers and the ruled’ (Kennedy, 1987: 42). What Schmitt seeks to underline is that the old tension between the rights of the individual and the authority of the state has theoretically been resolved; the citizens of a democracy are beholden only to the law which they themselves helped shape. In practice this means that the ‘law is the momentary will of the people present at the time’ (Schmitt, 2004: 24). As a result, the division between which laws are legal and which are legitimate disappears; it is no longer necessary for a law to make claim to an external source of justice, as its majority sanction is justification enough. Any law passed legally by the representative body is by definition legitimate, regardless of content. This is again presented in contrast to the sovereign, whose decrees were by definition legal (as they were not bound to precedent) but not necessarily legitimate, since they had to operate demonstrably in accordance with higher truth from which he or she derived power.

To reiterate: the legitimacy of the rule of law (and hence legislative government) depends on both equality before the law and the equal ability of all citizens to form the law. It is the second criterion which Schmitt believes liberal democracy fails to achieve; in order to form the law, there must exist the possibility of every citizen belonging to the majority party. The problem is a basic lack of homogeneity within the voting population, homogeneity which Schmitt argues is necessarily contained in the idea of ‘equal chance’:

The method of will formation through simple majority vote is sensible and acceptable when an essential similarity among the entire people can be assumed. For in this case, there is no voting down of the minority. Rather, the vote should only permit a latent and presupposed agreement and consensus to become evident. (Schmitt, 2004: 27)

If, however, a population is not homogeneous, if it does contain ‘permanent minorities’ (Schmitt, 2004: 28) which have no hope of belonging to the majority party and subsequently no possibility of forming laws, then Schmitt argues that democracy is not the enlightened and egalitarian government it pretends to be, but rather a functionalist nightmare rooted strictly in statistics; ‘Fifty-one percent produces the majority in parliament; 51% of the votes in parliament produces law and legality; 51% also demonstrates the confidence of parliament and produces the parliamentary government’ (ibid.: 27). It is the formalistic nature of law under democracy which makes the ability of every citizen to form the law so vital; anything passed by the legislative body is law without requiring a substantive truth claim, law which then governs the behavior of all citizens; ‘without this principle, majority calculus would be a grotesque game, not merely because of its indifference toward every substantive result. The concept of legality derived from this principle would also be a shameless mockery of all justice’ (ibid.: 28). Schmitt assumes that if the population is not homogeneous then the majority, once established, will seek to consolidate its power and thereby permanently bar access to the minority.

Schmitt argues that because the Weimar Republic is heterogeneous and does contain permanent minority groups, there is an immediate need to protect these minorities from persecution by the majority. This protection is achieved by creating a division both within the constitution, in the form of laws protecting certain individual rights, and also necessarily within the law itself, between low and high law – that is, laws which require a simple majority vote, and those rights protected from ‘the transient will of the majority’ through the requirement of a two-thirds majority. Unfortunately, Schmitt views this protection as both inadequate (how is persecution of 33% of the population more just than that of 49%?) and furthermore dangerous: just as rule of law necessitates the division of executive from legislative, division within the law further necessitates the formation of judicial and administrative bodies to protect the laws from the lawmakers. There is ‘no hierarchy of norms, but rather only a hierarchy of concrete persons and organs’ (Schmitt, 2004: 54). The establishment of so many different administrative bodies within the legislative state inevitably results in a ‘race’ for power; for while it is possible for the various factions to exist parallel to one another during times of relative stability, in the moment of crisis sovereignty is bitterly contested. This race occurs not only between the branches of government, but also within the legislative body itself, where it takes the ultimate form of minority suppression; minority parties are declared illegal and illegitimate, and are thereby permanently barred from the democratic process. In this moment the majority party becomes the state, and even the semblance of ‘equal chance’ has disappeared. The minority party in turn declares the majority to be in violation of the constitution and therefore illegal and illegitimate: ‘so at the critical juncture, each denounces the other, with both playing the guardian of legality and the guardian of the constitution. The result is a condition without legality or a constitution’ (ibid.: 34).

The collapse of the democratic process within the legislature is of little lasting consequence, however; in the race between governmental branches, the executive branch will invariably win, for while the legislative branch is responsible for generating the universal norms that dictate legality, the executive translates the universal and non-particular norm into concrete action. This means that no matter what checks have been placed against the executive branch, its actions can only ever retroactively be deemed in violation of the law, and any corrective measure necessarily lags behind the new realities created by the concrete actions of the executive and administrative state organs. This problem is exacerbated by the existence of state of emergency clauses which are ‘undetermined and evaluative concepts, such as “public security and order”, “danger”, “emergency”, “necessary measures”, “hostility to the state and constitution”, “peaceful disposition”, “life and death issues”, etc.’ (Schmitt, 2004: 32). The executive branch both determines what constitutes a state of emergency and in that self-defined moment assumes the mantle of legality. It is such moments of crisis that allow a president or chancellor to disband congress altogether, or, in more contemporary cases, to declare wars and suspend individual rights without the technically necessary approval of the legislating body.

Schmitt, however, does not bemoan the disintegration of the representative democracy under the weight of its own contradictions – since he always held the promise of equal chance to be impossible, the democratic process is determined to be fundamentally illegitimate and can be nothing but ‘a rather complicated form of absolutism’ (Schmitt, 2004: 20). Further, Schmitt hoped that this collapse could lead to a more just form of government, one in which the will of the people finds direct expression through a plebiscitary president ruling in accordance with his or her own conscience, whose legitimacy is the source of legality and not vice versa. Schmitt held that such a government would reunite law with its ethical base, a government with ‘the substantive characteristics and capacities of the German people’ (ibid.: 93). In a similar gesture, Schmitt argues that the bureaucracy is much more than the mere ‘tool’ its etymology reflects, and that its position in society could grow further, providing ‘a genuine elite … capable of producing authority and legitimacy … Such an elite would have qualities like incorruptibility, separation from the world of striving for money and profit, education, sense of duty and loyalty, plus certain obviously diminishing tendencies toward cooptation’ (ibid.: 13).

It is impossible to read Schmitt’s vision of a strong executive ruling in the spirit of the German people, backed by an elite bureaucracy, without discomfort, and it is hardly surprising that many have accused Schmitt of intentionally undermining the Weimar Republic. In her more recent book Constitutional Failure, Kennedy presents a convincing case that Schmitt was deeply dismayed by the Nazi seizure of power in 1933, and further contends that Schmitt joined the Nationalsozialistische Deutsche Arbeiterpartei [the National Socialist Workers’ Party or the Nazi Party] (the NSDAP) out of a sense of responsibility to the German people, since he saw himself as a modern Machiavelli, duty-bound to guide the state to the best of his abilities, regardless of the ruling party (Kennedy, 2004: 18). Prior to the Machtergreifung, Schmitt’s policy recommendations to the Hindenburg administration specifically targeted parties such as the NSDAP and the Kommunistische Partei Deutschlands [the Communist Party of Germany] (the KDP), that is, parties whose ‘revolutionary intent’ made them enemies of the state in Schmitt’s friend/foe political constellation. Kennedy is therefore justified in questioning those critics who accuse Schmitt of intentionally sabotaging the Weimar Republic, ¹⁰ reminding them instead of the gulf between ‘political critique and consequences’. Without attempting to assign guilt, the following question remains: is Schmitt’s proposed transformation of a parliamentary democracy into an authoritarian state governed by a plebiscitary president and bureaucratic elite – a ‘preservation’? ¹¹ Kennedy, too, notes the disturbing parallels between Schmitt’s utopian vision and the NS reality which was to follow:

Most of the changes that Schmitt … favored were realized – but with substantively different meaning: there was a state of emergency, the Länder were ‘coordinated’ with the Reich … the parties were abolished, and the NSDAP was the only legal organization. (Kennedy, 2004: 169)

II Schmitt on economy

The almost total absence of economic considerations from Schmitt’s arguments, excluding the minor, negative reference to the ‘incorruptible’ bureaucratic elite, is no oversight. Instead, Schmitt proudly proclaims in the second sentence of Legality and Legitimacy: ‘optimistic or pessimistic suppositions and prognoses are not of interest here; various crises – whether of the biological, medical, or economic variety, postwar crises, crises of confidence, those involving health, puberty, weight loss or what have you, will also not be considered’ (Schmitt, 2004: 5). Though the preceding sentence claims this essay as a work of ‘scholarly shorthand’ concerning legal development, the proximity of ‘economic’ crises to those of ‘puberty’ and ‘weight loss’ achieves the intended trivializing effect, reducing the economic dimension to incidental fluff.

In order the better to explain this disinterest-bordering-on-disdain, it is necessary to look to Schmitt’s works which deal with the economic directly, an excellent example of which is provided by the essay ‘Das Zeitalter der Neutralisierungen und Entpolitisierungen’ [The Age of Neutralizations and Depoliticizations], which, despite its short length, presents its readers with a schematic intellectual history spanning half a millennium. ‘Zeitalter’ begins with the axiomatic assertion that every era contains a central organizing principle; beginning in the 16th century and moving chronologically forward in neat 100-year intervals, the ‘centers’ are as follows: theology, metaphysics, humanistic/morality and economics (later he names the 20th century as the era of technology and religiosity). These centers serve two primary functions: first, they provide the touchstone in relation to which all further terms are defined; and second, they establish the battleground upon which all political contests are fought (Schmitt, 1991b: 80). For an example of the touchstone property, when the concept of ‘progress’ was introduced in the 18th century, it was understood in the sense of humanity’s inevitable climb towards moral perfection, while in the 19th century this had transformed into progress towards the economic well-being of all of ‘mankind’ and the disappearance of want and deprivation, and finally in the 20th century pure technological perfection was understood (ibid.: 85). The center-as-battleground functions similarly; in the 16th century it was unthinkable for two warring religious factions to belong to the same state, while in the 19th century it was equally unimaginable for two rival economic systems to exist and operate within the same nation.

What is apparent from this cursory description is that the economic is decentered in two ways; first, while the economic was the central ideology of western thought in the 19th century, in the 20th century it is no longer. This allows Schmitt to concede that Marx was a visionary of his time, while still arguing that the continued obsession with the economy is antiquated and distorts the view of power relations as they really stand in the 20th century (Schmitt, 1991b: 83). Second, and more importantly, the economy has been grouped with other second-tier categories, ideological centers which go in and out of fashion without affecting the core of human civilization, namely the political. The overarching thesis of ‘Zeitalter der Neutralisierungen und Entpolitisierungen’ is, as the title suggests, that the shifting ideological cores represent a progression towards perceived neutrality and the unpolitical, motivated by a desire to escape the war and bloodshed associated with political division (ibid.: 88). Unfortunately, humankind has discovered the opposite to be true, and every attempt at increased neutrality has been accompanied by escalating violence and brutality; as Schmitt famously concludes, the ‘most horrible war is waged only in the name of peace, the most terrible oppression occurs only in the name of freedom, and the most ghastly barbarity in the name of humanity’ (ibid.: 94).

A similar conclusion can be found in Der Begriff des Politischen [The Concept of the Political]; here Schmitt lists the various substitutions which liberalism has made in an attempt to neutralize the political: struggle is replaced with competition or discussion, the political state with society both in the sense of a moral humanity and as a system of production, the Volk with the public and consumers (Schmitt, 1991a: 71). This transformation is achieved through the totalizing influence of liberal democracy, which, through the aforementioned identity of ruling and ruled, blurs the lines between state and society (ibid.: 24). Once again, this does not produce the intended effect of neutralizing and depoliticizing the world; with the clear definition of the state destroyed (the same state which had served as a framework for friend/foe distinctions and therefore the political), everything has the potential to become political (ibid.). The political itself has no content and is only a relationship of a certain intensity; any conflict which has the potential to reach a point of existential crisis, a friend/foe division which can be resolved only with the physical annihilation of the other, can become political (ibid.: 27). In part, it has no content because it is always ‘concrete’ and ‘historical’ (ibid.: 9), and, as ‘Zeitalter’ demonstrates, the content of this dispute can vary greatly. Nevertheless, the political is always present, and any hope of pedagogically or economically weaning humanity from its inherent drive to create friend/foe distinctions is at best naïve, and at worst responsible for unspeakable atrocities.

The final point to be made concerning economy is this: economy is secondary to the political, not only in the sense that it is less essential, but also sequentially; in order for any of the secondary systems (religion, law, economy, morality, aesthetics) to function, the state and the political must precede it. Within Schmitt’s system, it is the exception, the moment of decision, the sovereign which creates the normalized space in which society can first function (Schmitt, 1991a: 46). According to Schmitt’s admittedly pessimistic (or, in his estimation, ‘realistic’) view of humanity, without the political, without friend/foe distinctions, protection and obedience, there could be only chaos and violence, and no law, economy or any other social construct would have any meaning.

Understood in this manner, the absence of economy from Schmitt’s discussion of legality and legitimacy is hardly surprising; the economy was no longer the conceptual framework in the 20th century, and, more importantly, its secondary position (comparable with that of law itself) makes any attempt to derive legal precedent from the economy misguided. Of course, this also raises many important questions which go unanswered in these texts. Where do the centers come from? How are they changed? Are they at all affected by the external world? Schmitt’s theory may well be ‘historical’ and ‘concrete’, but it is far from material; ideologies seem to shift exclusively under the force of will, be it individual, collective, or sovereign. It is also important to note that in Schmitt’s analysis, democracy fails because of logical inconsistencies within the idea of the institution, and not because of any external influences (including the much-derided ‘crises’). Schmitt’s idealism has particular significance when applied to the concept of homogeneity. What exactly is the ‘German spirit’? Where do homogeneities come from? These questions feature prominently both in Kirchheimer’s own theory and in his critique of Schmitt, where the economy, and with it the ‘historical sociological’ referred to by Söllner, takes center stage.

III Kirchheimer: A material response

In contrast to Schmitt, it is difficult to find a central term in Kirchheimer which is not to be understood in relationship to the economy; formal law, mechanical majorities, homogeneity and the theoretical division between social and political democracy are all defined by their economic underpinnings. The problem of ‘formal law’, for example, already features prominently in Kirchheimer’s 1930 essay ‘Weimar und was dann?’ [Weimar and What Then?], albeit in an entirely different form than both he and Schmitt would later use. Kirchheimer is indeed critical of the ‘formal’ nature of parliamentary law, though not ‘formal’ understood as the opposite of substantive, but rather ‘formal’ in the sense that they are laws in name only, i.e. laws without the force of law (Kirchheimer, 1964: 56). In order the better to understand ‘formal’ in this sense, it is necessary to review the historical origins of democracy, which Kirchheimer characterizes broadly as the successful rise to power of the bourgeoisie, with the aid of the proletariat, against constitutional monarchy, all of which was achieved under the banner of human rights, equality and democracy. Kirchheimer readily concedes this as an emancipatory moment, but is quick to note that, contrary to the expectations of later constitutional framers, the emancipatory element of democracy disappeared as soon as the bourgeoisie assumed power (ibid.: 53) – in fact, those same rights which had been championed so loudly became a real danger to the stability of bourgeois rule (ibid.: 16). The universal suffrage necessary to rally the proletariat against the monarchy carried the unfortunate side-effect of actually granting them political power, thereby making the possibility of radical wealth-redistribution a real threat. In order to stave off this eventuality, the bourgeoisie limited democracy to political democracy – that is, citizens were granted the right to vote in addition to equality before the law, but not ‘social’ or substantive equality; the existing economic structures are preserved through property laws and bills of rights, establishing a bourgeois dictatorship in the place of a social democracy, a social democracy that would have actually represented the logical completion of the democratic ideals of liberty and equality (ibid.: 17, 18).

Kirchheimer critiques the substantive laws of the Weimar Republic particularly sharply; in a moment of true Schmittian argumentation, he describes the mixed substantive legislation as a delay of decision masquerading as compromise (Kirchheimer, 1964: 154). Unlike a true compromise, in which both parties agree to concessions, Kirchheimer contends that the substantive rights provided by the Weimar Constitution are a set of conflicting laws in which everyone is given exactly what she or he wants (ibid.: 32). This leads to one of the most powerful forms of oppression available to the bourgeois dictatorship, namely selective law enforcement: since the judiciary and the administrative arms of the government are controlled by the economic elite, only those laws that are advantageous to the bourgeoisie are practised. The most famous examples of this selective enforcement were the wildly varying responses of the federal government to uprisings in the German states; communist uprisings were dealt with severely, parties were disbanded and jail sentences doled out, while fascist usurpations of political power, which posed no threat to the established economic norms, were left largely unpunished. The most extreme tool against socialist reform in the bourgeois arsenal also originates among the ‘substantive’ laws, namely the ability of the president to suspend parliament via article 48. It is in this moment that the dictatorship of the bourgeoisie, always present, is laid bare, as it uses extra-legal means to achieve through force what it could not enact through democratic legislation. It is in this sense that Kirchheimer refers to parliamentary law as ‘formal law’, or ‘game rules’, that is, meaningless edicts unable to truly challenge the status quo, a status quo determined by economic forces beyond the reach of the legal system (ibid.: 56). Kirchheimer, too, is concerned with the 51% – namely that even if sufficient votes are cast in parliament to affect change, they will be rendered impotent by a system designed to maintain the current economic hierarchy.

However, as skeptical as Kirchheimer was of the likelihood of success within the democratic system of the Weimar Republic, he was even less optimistic about the chances through extra-legal channels; ‘Weimar und was dann?’ is littered with indications that Kirchheimer was already opposed to revolutionary action, if for no other reason than he thought it was impractical. For example, Kirchheimer notes perceptively that not only did the military once have close ties to the monarchy, and was in general a conservative force likely to oppose revolutionary forces, within Weimar, it had also been incorporated into the bureaucracy and therefore robbed of any independence, instead clearly standing in the service of ‘bourgeois order’ (Kirchheimer, 1964: 42). More significantly still, Kirchheimer states that all attempts thus far to dismantle parliament on the grounds that it was a calcified, dysfunctional body, had been the actions of right-wing presidents against the more leftist parliament, in part as a means of hiding the uncomfortable truth of economic stratification which the party system represented (ibid.: 28). Attempts nevertheless to characterize Kirchheimer as an anti-democratic radical seem primarily based on the title of the essay and are in no way substantiated by the text itself. The anti-revolutionary nature of ‘Weimar und was dann?’ is captured very effectively in Schale’s positioning of Kirchheimer as a ‘left-socialist’, in opposition to both liberal-socialism and revolutionary communism/Leninism (Schale, 2011: 156). Kirchheimer remained a staunch, if critically reflective, member of the Sozialdemokratische Partei Deutschlands [the Social Democratic Party of Germany] (the SPD) until the very end of the republic, and at every turn rejected Leninist, potentially ‘left-Schmittian’, justifications of ‘temporary’ dictatorship in the name of democracy; Kirchheimer recognized that the fundamental principles of democracy are necessarily both equality and freedom/self-determination. To destroy individual freedom in the name of equality would be to destroy democracy itself (ibid.: 156, 158, 161). Kirchheimer’s task in ‘Weimar und was dann?’ was therefore not to undermine the legitimacy of parliament as part of a revolutionary agenda, but rather to highlight those forces (primarily economic) which were already at work against it. The bourgeois dictatorship had existed in a ‘provisional’ form since the inception of the Weimar Republic: the danger was that if the economic order was further challenged by parliament the bourgeois dictatorship could become a legal, ‘sovereign’ reality (ibid.: 157).

Two years later, Kirchheimer would revisit the topic of compromise in ‘Legality and Legitimacy’: ‘although its opponents prefer to overlook this, this liberalism [of the Weimar Republic] has less to do with a fundamental commitment to liberal ideals than to the fact that it proved to be a practical organizational principle for a class-divided country’ (Kirchheimer, 1996a: 54). Kirchheimer’s own definition of formal law had changed in the interval, from formal in the sense of ineffective, to instead describing the formulaic method of law creation: ‘the legislative state, parliamentary democracy, knows no form of legitimacy beyond that of its origins. Since any legislative resolution of a majority of the people constitutes a law, the legitimacy of this form of government consists simply in its legality’ (ibid.: 49). This is the meaning Schmitt would borrow for his own essay, though even in this instance of using loosely similar definitions, the positioning of the terms varied greatly:

The prospects of every system of legality-based political rule depend on the possibility of incorporating the dialectic of historical change more smoothly than a system of rule based on an appeal to legitimacy can accomplish. The latter is only capable of surviving to the extent that it succeeds in attributing the appearance of eternal validity to the political and social conditions of a particular moment. (Kirchheimer, 1996a: 58)

Instead of blaming the empty formality of the legislative state for permitting majority domination of minority groups, Kirchheimer notes that the minority oppression which was occurring in Weimar was instead the direct result of expanding substantive legislation: the German courts had begun instituting a ‘supra-legal constitutionality’ through determining the potential revolutionary intent of political parties and labor unions (Kirchheimer, 1996a: 53). This represented a clear perversion of legislative law; instead of determining guilt or innocence on the basis of actions, judges now ruled over the ‘revolutionary’ potential, determining legitimacy and not legality:

In the face of the court’s presumption of illegality, even its own well-considered acknowledgment of evidence suggesting the legality of the actions of the KPO [Kommunistische Partei Deutschlands Opposition (the Communist Party of Germany Opposition)] at the present time is rendered inconsequential; the only thing that really counts is the KPO’s illegitimate goal, its ‘revolutionary objectives’. (Kirchheimer, 1996a: 56)

In ‘Remarks to Carl Schmitt’s Legality and Legitimacy’, Kirchheimer maintains his primary defense of formal law as the most practical and stable form of governance, but also expands his argument to address some of the specific issues raised by Schmitt. Returning to the constitutional division between formal and substantive law, Kirchheimer challenges Schmitt’s characterization of this divide as constituting an absolute contradiction, something Kirchheimer achieves both by demonstrating that the division itself is not as clear as Schmitt maintains and, additionally, by stressing the thoroughly ambiguous nature of the effects produced by substantive law. To muddy the division between formal and substantive law, Kirchheimer further divides substantive law into three categories: programmatic norms, which provide ‘moral pressure’ to legislators but which have no actual legal repercussions; authorization norms, norms that seek to make explicit certain abilities of the legislature which would otherwise be unclear; and finally the fixative norms, norms that have corresponding formal laws which restrict legislating ability and require a two-thirds vote to overturn them (Kirchheimer, 1996b: 71). Of these, only the fixative norms are truly substantive in Schmitt’s sense; laws which seek to offer concrete protections or rights against the will of the simple majority. However, Kirchheimer stresses that real functioning of even this category is other than Schmitt imagines; far from being a constant threat to the legitimacy of formal law, or offering a fundamentally different form of legitimacy, these protections are instead largely designed to improve the functioning of formal legislation during periods of relative political stability, ‘by removing certain objects from the immediate access of simple majorities they make it more difficult for those objects to become the target of everyday political struggles. They reduce tensions and hence tend to improve the functioning of democracy’ (ibid.). If these fixative norms are chosen correctly, they both anticipate legislation which would have eventually resulted from potentially long political struggles, and further allow for a degree of planning within the democratic state.

Problems arise only with fixative norms and, therefore, substantive law as a whole, in periods experiencing ‘variation in social power relations’ (Kirchheimer, 1996b: 71). This seems in line with Schmitt’s assertion that in the moment of crisis, substantive law offers warring parties leverage with which to deny the constitutionality of their enemies and hence decry them as illegitimate and illegal. Yet Kirchheimer offers another interpretation of this tension by suggesting that though it is imaginable that a majority party, frustrated in its attempts to achieve political goals by fixative norms, may seek extra-legal means of achieving its ends, even in this worst case scenario, the effects of fixative norms are not necessarily only disintegrative; for while these norms may foster resentment within the restricted majority, they simultaneously can engender loyalty to the state in those protected. As an example, he cites the provisions in place protecting civil servants from the volatility of shifting majorities, which both increase the commitment of the civil servants to the government they serve and further increase stability by reducing the ‘scope of political spoils’ in the form of appointments (ibid.: 72). Again, the constitution of the Weimar Republic is understood, not as the ultimate fruition of liberal ideology, but rather as a pragmatic attempt to overcome real, economic tensions within the German populace.

Of course, it is impossible to critique Schmitt’s Legality and Legitimacy without addressing the concept of homogeneity. As mentioned previously, Kirchheimer had already stated that the economically heterogeneous population of Weimar was one of the factors which led to the pragmatic selection of a liberal democracy. However, the centrality of homogeneity within Schmitt’s argumentation forced him to give a more detailed account. Kirchheimer still viewed economic heterogeneity as a central hurdle to the stability of Weimar and of democracy as a whole:

By means of the results of its effects on the economic structure, the right to property, as well as that to personal liberty, brings about an inequality of political chances among social groups. If the democratic socialist position – that its economic structure could bring about ‘equality of opportunity’ while preserving the rights of citizenship – were justified … this would indicate that a type of democracy with a specifiable normative content exists, in which a maximal approximation of the ideal of ‘equal chance’ in every sense of the term has been achieved. (Kirchheimer, 1996b: 80)

Schmitt’s insistence that the state be capable of discerning friend from foe, coupled with the prerequisite of homogeneity for the equitable functioning of democracy, leads Kirchheimer to conclude that in Schmitt’s theory, ‘homogeneity refers to an empirical condition’ and not to a sociological formation; that is, homogeneities exist in nature, and it is the task of the state to discover them and then, through a model of exclusion, to delineate a homogeneous political body (Kirchheimer, 1996b: 64). ¹² In light of the events of the Second World War, this is obviously a troubling formulation, one which evokes Blut und Boden and the mystical racism of the Nazis. Kirchheimer, in contrast, notes that all existing democracies by necessity accommodate heterogeneous populations and that, indeed, all populations are by necessity heterogeneous; furthermore, he notes that there appears to be a global trend towards increased heterogeneity (ibid.: 68–9). Not only is such ideological heterogeneity inevitable, pure homogeneity would represent the total destruction of the individual; citizens of Schmitt’s plebiscitary presidency may have the right to vote and equality before the law, but such a government cannot be considered democratic as it destroys the freedom to think and act differently which representative democracy affords (ibid.: 66). This is not to say that greater social cohesion and homogeneity are impossible, and Kirchheimer describes the integrative potential of ideology coupled with economic reality:

Until recently, a virtually unlimited faith in the virtues of a form of egotistical calculation, namely interest-based solidarity, functioned as a powerful integrative instrument in the United States. Its efficacy can be demonstrated simply by comparing the manner in which nationally heterogeneous groups have been assimilated in America to similar attempts at assimilation in Europe. (Kirchheimer, 1996b: 69)

Conclusion

This has been an attempt to return to an old debate concerning the nature of the relationship between Otto Kirchheimer and Carl Schmitt, and within this context, to extend, through the lens of the economy, Alfons Söllner’s characterization of this relationship as one of conflict between historical-sociology and ontology; it is through economy that the distinctions between the two theorists are at their most apparent, making nearly all analogies untenable and revealing false friends in their shared terminology, while simultaneously avoiding less productive tangents, such as those that focus on the left’s ‘fascination’ with Schmitt or attempt retroactively to assign blame for the collapse of the republic. Schmitt’s critique of democracy rests on a logical imperfection, an equation which refuses to balance due to the lack of uniformity of its components. The political creates space for societal normalcy, organized over and against other units of state. The central organizing principle itself is irrelevant, all that matters is the existential contest of wills, in which ‘spirit fights against spirit, life against life’, and any attempt to mask or avoid this primordial struggle ends in atrocity (Schmitt, 1991b: 95). Kirchheimer, by contrast, suggests a world shaped by historical development and economic forces, homogeneities not as ideological battle lines to be drawn, but egalitarian communities to be shaped and fostered, a hope for a democratic future that lives up to its own ideals. Kirchheimer saw with great clarity the inequities within the Weimar Republic and also ominous shortfalls of its constitution, but time and again insisted on its transformative potential. While it would be easy to dismiss his theoretical optimism as blind hope against looming cataclysm, his lifelong dedication to the study of constitutional law suggests otherwise.