Philosophy & Social Criticism

Scheuerman’s book is one of the handful of significant attempts to rethink Schmitt’s work systematically over the past four decades. In so doing, he raises three key questions for me. First, is Schmitt’s work a sincere contribution to legal and political theory, or an attempt to argue for setting the rule of law aside for authoritarianism, that is, an instrumental critique of indeterminacy? Second, to what extent is Schmitt – critical of the ‘bourgeois’ rule of law, critical of globalization – really a thinker defending capitalism? Can he really be associated with the Ordoliberals (even if they adopted his arguments from 1931 to 1932 in their own writing of the time)? Third, to what extent were Schmitt’s early contributions to National Socialist law aimed at responding to legal indeterminacy, and to what extent did they in fact point towards a radicalism of German law within the Nazi system, especially insofar as they endorsed making decisions based on the principles of justice of the Nazi state – and potentially against the express language of statutes?

This comment focuses on part III of the book, ‘Carl Schmitt’s 21st Century’, by William Scheuerman. It raises two points. The first point concerns the author’s continuity thesis. According to Scheuerman, Schmitt’s ideas ‘exhibit more continuity than widely asserted’. This has consequences both for how we should read Schmitt and for how we should approach authors who use his concepts (such as in the US counterterrorism debate Scheuerman discusses in chapter 10). This comment wants to question this view and instead wants to propose what might be called a chameleon thesis. Schmitt’s thinking contains repeated shifts that are not accidental (1). This may also have implications for how we view attempts to use Schmitt in contemporary thought (2).

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.

In ‘The End of Law’, Bill Scheuerman illustrates the ways normativity, context and decision interlace, putting the lie to Carl Schmitt’s claim that decision is pure will. In doing so, Scheuerman gestures toward a truth about the alchemical nature of constitutions. Like decisions, I argue, constitutions are alchemical mechanisms for actualizing norms and normativizing facts. They accomplish this in part through mediating between dynamic (individual and political) selves before and after the moment of decision or coming-into-force. Schmitt’s error – or perhaps his strategy – is to make static this dynamic process of political self-formation. Viewed as static, it is more difficult to discern the process of normativizing facts and concretizing norms. I show how contemporary populist authoritarians are particularly skilled at harnessing this strategy. Populist authoritarians often use constitutional change to consolidate not just power but constructed identity. They are able to do so because constitutions provide this strategy of dynamic identity formation, which, by generating new normative imperatives, in turn shores up legitimacy.

‘Bill Scheuerman’s ‘The End of Law’ offers a compelling case for the claim that Carl Schmitt’s constitutional theory is not authentically democratic. This does not entail, however, that Schmitt’s views are of no relevance for understanding the contemporary crisis of democracy. Schmitt’s arguments offer a blueprint for the populist-authoritarian subversion of democracy. Defenders of democracy are therefore well-advised to engage with Schmitt’s ideas.’

Carl Schmitt, whatever his clear deficiencies as a human being and excesses in his overall thought, is, by any objective measure, one of the leading jurisprudential figures of the 20th century. And the questions he raised – about the inevitably of discretionary decision-making in the age of the modern administrative state; the breakdown of liberal parliamentarism; or the importance of that ‘emergencies’ must play in any cogent jurisprudential theory, to name only three – continue to resonate very much into the 21st century. William Scheuerman is at best ambivalent, if not hostile, to many aspects of Schmitt and Schmittian theory, but he presents Schmitt’s ideas with remarkable clarity that enables the reader to understand why it continues to be important to read and to wrestle with him.

I argue that Schmitt was a faux jurist and that is important to understand ‘Schmittean’ logic. This is a logic which aims to undermine democracy and the rule of law which is not unique to Schmitt and is at play in our contemporary world.

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.

The idea of self-reliance is important not only because it is often taken to be definitive of the ethics of democratic individualism, but because its greatest theorists have been uncommonly forthright about a problem that, though familiar to ordinary civic experience, frequently gets ignored: that self-reliant individuality is a basis for not fully supporting otherwise endorsed social justice causes. This article turns to Ralph Waldo Emerson, Henry David Thoreau and Bob Dylan who are unusual for so honestly reflecting upon this problem and who, because of the differences in the way they conceptualize it, are instructive for civic ethics. I demonstrate that Emerson and Thoreau imbue their self-reliant withdrawal from social action with a self-satisfaction that is lacking for Dylan, who is much readier to acknowledge the moral costs of self-reliance. This acknowledgement does not invalidate self-reliance but alters its epistemological, ethical and political features, providing a variant of self-reliance more suitable to contemporary conditions.

Hegel’s philosophy is in tension with liberalism, containing both liberalizing tendencies and rejecting liberal norms. I explore this tension by investigating the relationship between religion, fanaticism and world history in Hegel’s discussion of Islam. Drawing on recent work that considers Hegel’s treatment of race and world history, I show that he views Islam as a form of fanaticism that is antithetical to Christian Europe. This rejection of Islam stands in contrast to his treatment of the French Revolution, which is a fanaticism that can be incorporated into world history. I conclude that Hegel does not provide resources for narrating a history of a more inclusive Europe, but that interrogating his philosophy offers strategies for thinking askew the liberal ‘problem-space’ and reconsidering identities formed in opposition to the Islamic fanatic. Such an interrogation reveals the assumptions at work in contemporary debates about the liberalization of Islam.

Political respect for nature is an important part of cultivating a more emancipatory and ecologically sustainable politics. As a political principle, it can supplement respect for persons with institutional mechanisms that formally constrain how human power may be exercised over non-human beings and things and that require us to use our power in ways that are attentive to nature’s well-being along with our own. Moreover, when internalized by citizens as part of their shared political ethos and public culture, respect for nature has the potential to protect against the abuse of power in our interpersonal relations with Earth’s non-human parts. Political respect for nature means acknowledging that non-human beings and things count, that they deserve to be treated according to standards of right and that there are principled limits to how human power may be exercised over them. It means formalizing these constraints in the basic structure of society and fostering a public culture of self-restraint and responsiveness.