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The White Raven

Pádraig Murphy

Carl Schmitt had an exceptionally long life (1888-1985) and lived through cataclysmic times in his native Germany. He lived under five different regimes – the Wilhelminian empire which ended in defeat in 1918, the first German Republic, 1919-1932, the Nazi period, 1933-45, the postwar occupation, and the Federal Republic as we know it, if before reunification.

In origin, he was a Catholic from the western borderlands of Germany, with close familial ties with Lorraine. The region in which he was born and raised, the Sauerland, had become a part of Prussia in the post-Napoleonic settlement. It remained staunchly Catholic, with strong resentment against Prussia, not least because of Bismarck’s strongly anti-Catholic policy, the Kulturkampf, which had ended before he was born. Like many another provincial, he sought to make his career in the capital, where his fate was decided, for better or worse. His chosen area of study was the law, and in 1907 he became a student at Berlin University. He gave a telling description of the outsider experience that this represented:

I was an obscure young man of modest background … I was defined neither by the ruling stratum nor by an oppositional tendency … That meant that, while standing completely in the dark, I looked from the darkness into a brightly lit room … The strong revulsion that I experienced left me feeling no comfort in my role. The feeling of sadness which overcame me increased my distance and aroused in others suspicion and disconcertment. A ruling stratum finds somebody who is not made happy by contact with it, but is saddened, alien … This gives him the choice of adapting himself or leaving … Thus I remained outside.

Still in 1954, forty-seven years later, he could describe himself as “C.S., born 1888, a white raven who can be found on everyone’s blacklist”. The description admittedly – the blacklist – includes an element which can readily be referred to the intervening forty-seven years, but the figure of the white raven is very readily identifiable with the obscure young man in the dark looking at the brightly lit scene inside.

As mentioned, Schmitt’s field was the law, and that indeed was what he qualified in. He would claim in later life to have been nothing but a jurist. This claim is more than somewhat disingenuous: were he “nothing but” a jurist, there would be little reason to occupy ourselves with his heritage today. He was in fact one of the leading theoreticians of law and constitution of his time, in Scheuerman’s words, “among the ranks of twentieth century Europe’s most influential political and legal theorists”. If today his concept of the political as the determination of friend or foe is commonly cited ‑ in agreement or disagreement – this is an index of his influence. The same goes for his thinking on democracy, on the possibilities of a single world order, on the nature of states of emergency, and on the sources on which regimes can draw for their legitimacy.

Schmitt’s thinking over the whole period of his activity in these areas is marked by two main considerations. Firstly, like all German intellectuals of his time – and many since – his thought was very profoundly influenced by Hegel’s view of the place of the State, indeed, one can almost speak of the hypostatisation of the state in much of German, and of Schmitt’s, thinking. As Jan-Werner Müller puts it: “One could even say that since Hegel the distinction between State and society formed a kind of theoretical axis around which political thinking in Germany turned for the time being. Further, German political and legal scholars were all too inclined to regard the State as established on questionable metaphysical foundations – in consequence, the State was a matter of real ‘substance’, and could not be reduced to its functions or be seen as merely an instrument of bourgeois society.” So, even if Schmitt maintained, at one of the shamefully low periods of his active life, that January 30th, 1933, the day the Empowerment Act giving plenipotentiary powers to Hitler was passed, was the day Hegel “died”, he added straightaway that the decline of the Hegelian state did not mean that the state as such, as an institution, was irrelevant.

The second main driving force in Schmitt’s concept of the state was that of order. Ordnung muss sein, “there must be order”, is an almost cliché expression of the good German bourgeois notion of the function of public administration. Schmitt himself attributed the fateful change of 1933 to what he called the “German sense for order”. For Schmitt, the individual concrete state was the expression of the political unity of the people, “the complete condition of political unity and order”. Much followed from this in Schmitt’s thinking: the necessity for a strong state, the need for effective decision-making, the requirement of homogeneity in the people electing the government, with the corollary of what that called for in terms of democratic arrangements. The events through which Schmitt lived only accentuated his perception of what was called for under this heading.

The development of Schmitt’s thinking on political and constitutional questions was of course profoundly influenced by the developments in Germany during his lifetime. He wrote off at a very early stage the liberal democratic state on the basis of what he observed in the late period of the First World War and the struggles to establish a new republic after it. In his idealisation of the state, at this early stage he looked back to the Catholic church as a model, calling it, after Adolf von Harnack, a complexio oppositorum, or an organisation of opposites. In this, it stood in opposition to capitalism as an organising force, with its dominant economic thinking. For him, the church was the true heir to Roman jurisprudence, and was based on the representation of Christ by the pope, which gave individuals a personal mission and a dignity. In his own words at this time,

There appears to be no antithesis it does not embrace. It has long and proudly claimed to have united within itself all forms of state and government, to be an autocratic monarchy whose head is elected by the aristocracy of cardinals but in which there is nevertheless so much democracy that … even the least shepherd of Abruzzi, regardless of birth or station, has the possibility to become the autocratic sovereign. Its history knows examples of astounding accommodation as well as a stubborn intransigence, the manly ability to resist and womanly compliance – a curious mixture of arrogance and humility.

This paean had nothing to do with the church qua church. It was rather that, like Donoso Cortés, whom he often invoked, Joseph de Maistre  and Louis de Bonald, Schmitt rejected the liberal democratic state as it had evolved during the nineteenth century as being in essence technocratic to an impoverished degree, in favour of what he saw as a state based on representation – in the case of the Catholic church, the representation by the pope of Christ, and the community of believers as “the body of Christ”. He detected a metaphysical void in the theory of the modern state and declared the absence of myth a structural weakness.

While he still could see the parliamentary democracies of Europe of the mid- to late nineteenth century, with their restricted franchises and limited pool of representatives, as viable, it seemed to him that, by his own time, society in the sense of narrow economic interests had so penetrated the state that it had lost the necessary decisive power to maintain a credible order. Further, what he called political romanticism had, he said, taken over the public sphere. This, he also said, saw life as an endless conversation in which nothing is worth coming down in favour of definitively and nothing is worth fighting for.

By the end of the First World War, Germany was in fact under the effectively dictatorial rule of Hindenburg and Ludendorff. After the end, Schmitt personally experienced some of the constitutional chaos which followed, finding himself in Munich. There, a Räterepublik, or Soviet republic, was established, the Bavarian prime minister, Kurt Eisner, was assassinated, and Schmitt, being present in the city as part of the one-time military administration, felt personally threatened: his office was broken into by a band of revolutionaries and an officer at a nearby table was shot.

Schmitt had during the war drafted a paper at the behest of his military superiors on the possibility of extending the military state of siege after the end of hostilities. This resulted in his publication in 1916 of Diktatur und Belagerungszustand, Dictatorship and the State of Siege, in which he argued that the return to military dictatorship represented a return to the historically original form of state power before the division of powers of parliamentary democracy. As he was to put it later, in a core position of his, the concept of the state presupposes the concept of the political, in other words, before any state is formed, executive power is primary, while justice and legislation are derivative, secondary, forms. He was to elaborate further, in development of his thoughts on the state of siege, on the state of emergency, which for him participated in the same logic. Formal legal provisions, he pointed out, could never foresee all eventualities. Circumstances would always arise – indeed, as the state became more and more involved in legislating for all sorts of occasions they would arise more and more often – where emergencies would have to be provided for. This illustrated his conclusion that “he who decides on the exception is sovereign”, in that in this case, it becomes clear where the source of valid decision in any polity becomes clear.

Dictatorship, both what he called “sovereign” and “commissarial”, that is permanent and temporary, were to be abiding themes in Schmitt’s thought during the Weimar Republic. This was a time when Germany was still effectively under foreign occupation: in the view of the majority of Germans, the Versailles treaty was imposed on Germany. The occupation by France and Belgium of the Ruhr in 1923 caused outrage inasmuch as it made it plain for all to see that Germany was not in fact a state treated in an equal manner to all other European states. In Schmitt’s view, in addition, the League of Nations was an instrument used by the Allies to keep Germany suppressed, and high-sounding slogans about a new universal organisation based on equal rights could not disguise this. This was all the more the case in that the United States did not join the League, but was a full participant in the keeping of Germany in its place, as the Dawes (1924) and Young (1929) plans regulating German war reparations showed. Schmitt was also quick to point out that the League, while professing a policy of non-intervention, turned a blind eye to the continuing insistence by the US on the Monroe Doctrine, which maintained an American chasse gardée in the Americas.

Already in 1923, Schmitt had, in The Crisis of Parliamentary Democracy, given a radical critique of parliamentary democracy as it had evolved from what he saw as its heyday in the nineteenth century ‑  before 1848 – when parliamentary representatives were made up of educated property owners to the situation as he saw it, not only in Weimar, where little genuine debate took place in parliaments. Rather particular powerful interest groups sought to advance their agendas through backroom politicking and manipulation of public opinion through the media. From this he drew the conclusion that state and society had become so interwoven that a “total state” had resulted. In this, what he called “romanticism” reigned, a situation where everything was continually debated but where there was no acknowledged hierarchy of values which could legitimise any particular decision.

As well as this, and related to the situation of the country as a defeated enemy, the Weimar Republic went through a series of economic crises, including the notorious inflation of 1921-23. After making a recovery, it was finally delivered into its death throes by the Great Depression of 1929. To a significant extent because of these upheavals, the Weimar constitution proved largely dysfunctional. The inability to govern by normal parliamentary majorities became increasingly evident – society proved far too fissiparous: Nationalists, Communists, Social Democrats and, to an ever-increasing extent, National Socialists could not agree on the most basic minimum required for the Reichstag to function as a parliament. In consequence. the mechanism provided in the constitution under Article 48 for rule by presidential decree was ever more often resorted to. All this lent credibility to Schmitt’s view that dire crises or emergencies were unavoidable and that liberalism’s penchant for subjecting ever wider areas of human affairs to legislation was conceptually misguided and could not be maintained. Multiple emergency situations, in his view, demand action incompatible with the rule of law, and liberalism’s attempt to circumscribe the activation of clauses like Article 48 regularly failed. Unforeseen circumstances demanded unforeseeable exercise of far-reaching executive powers. Hence, one of Schmitt’s better-known remarks, that the exception is more interesting than the rule. His meaning in this instance goes further than the banal saying that the exception proves the rule: he was pointing to the proposition that strong executive action, unburdened by formal requirements of the legislative means beloved of liberal ideals, was the core element in any viable polity.

It was at this stage, 1927, that Schmitt published his most famous work, The Concept of the Political, which introduced his definition of “the political” as turning on the definition of who was friend and who enemy. In it, he states:

The intensification of internal antagonisms has the effect of weakening the common identity vis-à-vis another state. If domestic conflicts among political parties have become the political difference, the most extreme degree of internal political tension is thereby reached, i.e., the domestic, not the foreign, friend and enemy groupings are decisive for armed conflict. The ever-present possibility of conflict must always be kept in mind. If one wants to speak of politics in the context of the primacy of internal politics, then this conflict no longer refers to war between recognised nations but to civil war.

The concept of the political is meant as an analysis distinguishing the political from, for instance, moral, juridical, religious or economic reasons. At the same time, it arises clearly from the quasi-civil war conditions that Weimar Germany was experiencing at the time. It very clearly points to war as the logical outcome of the extreme friend/enemy distinction. It clearly points to the need for intense, decisive action and for homogeneity within the community making the crucial distinction. Schmitt indeed at the time went so far as to say: “The concept of friend, foe and struggle only gain their real significance through the fact that they relate in particular to the real possibility of killing” an alien “other”. In a much later work (1950) he modulated this extreme interpretation. He then said:

In this reciprocal recognition lies the greatness of the concept. It is little suited for a mass age of pseudo-theological enemy myths. The theologians are inclined to define the enemy that must be annihilated. I, however, am a jurist, not a theologian.

By this stage, there was no longer the emphasis on the intensity of the struggle, but on the factors making for limiting the intensity; the enemy is to be regarded as legitimate, with the respect that that entails, that is, regarded as a fellow human. At this stage too, he quoted Theodor Däubler to the effect that “the enemy is our own question as figure”. Indeed, in a mythical/theological excursus of the kind he was always inclined to, he speaks in 1970 of the “Christologico-political conflict” and of the fact that Father and Son are, “so to speak, by definition enemies”, looking at Christ as a “Promethean” rebel against God. There can for all that be little doubt that the friend/enemy criterion is a grossly inadequate characterisation of anything called “the political”. Theodor Heuss, by then president of the Federal Republic, put it well in 1951:

Carl Schmitt squeezed the “essence of the political” into the tenuous formalism of the “friend-enemy” relationship. This throttled the infinite variety of interrelations and interactions in political life because the dynamic tension, which can also belong to this infinite variety, was isolated and over-emphasised. This infinite variety, which does not just look at the friend-enemy relationship, but goes beyond the limits of formal logic to the place where the substance of public life can be seen – a substance that carries values and is carried by values that are, by nature, transcendent.

The argument for homogeneity as an essential element of a properly functioning state is, as has been seen, one of the points that Schmitt too makes. The argument is an old one. Protagoras of Abdera was one of the first to specify it as a precondition for democracy. The argument that the European Union is not a true democracy because it lacks the homogeneity of a demos is one often made by Eurosceptics in the UK. When Schmitt brought it into the discussion first, in his Verfasssungslehre of 1928, he also specified that homogeneity was to be secured by the exclusion of the heterogeneous. In the perspective of his well-known views on the place of assimilated Jews in the Germany of his time, this was ominous. However, he made it clear that he did not see the question in ethnic terms – nor, perhaps was his antagonism towards the place of Jews in German intellectual life ever specifically völkisch, or ethnic. He explained:

“Nation” and “Volk” are often treated as synonymous concepts, but the word “nation” is terser and less subject to misunderstanding. It designates, that is, the “Volk” as a unit of political action, while the Volk that does not exist as a nation is only some kind of ethnic or cultural group, not, however, a real bond among human beings.
Diverse elements can contribute to the unity of the nation, and to the consciousness of this unity: common speech, common historical fates, traditions and memories, common political goals and hopes. Language, while it is an important factor, is not decisive … Authentic revolutions and victorious wars can overcome linguistic oppositions and establish the feeling of national belonging, even when the same language is not spoken.

Balakrishnan considers the passage reminiscent of Renan and Weber; we may be reminded of the Citizen in Ulysses. However that may be, it is clear that, if Schmitt is not calling up völkisch ghosts, his hostility to parliamentary liberalism meant that he was invoking a demotic scheme under strong personal leadership established by acclaim. In his advocacy of the presidential power to sideline the Reichstag under the emergency powers of Article 48 he characterised the parliament as participating in the general decline of elected legislatures, which he saw as part of a worldwide historical trend.

He had long engaged in a dispute with the positivist school of jurisprudence, represented notably by the Jewish scholar Hans Kelsen, on the grounds that legality as derived from the corpus of legislation was not enough: legitimacy was lacking. He had at an early stage condemned Catholic natural law and neo-Thomism. In support of his rejection of the language of humanitarianism, which he saw as an instrument in the hands of the Anglo-Saxon powers to keep Germany under subjection, he quoted Proudhon: “Whoever invokes humanity only wants to cheat.” But he also was of the view that the introduction of values into the legal system was pregnant with public dissension, because there was no general agreement on these values. Martti Koskenniemi says that “instead of positivism or natural law, Schmitt espoused a kind of legal expressionism that highlighted the need for the jurist to know where the lines of social struggle were drawn and what kind of decision, what kind of meaning, would be needed to solidify the basis of the legal order”. It seems clear that all this was said solely on the basis of a political theory of a strong executive-based state. In any event, both earlier and later he indicated that something more was needed in order to provide legitimacy. He quoted Kierkegaard to the effect that a theological perspective on law beyond state law was possible: beyond the state exists a law of God. And he acknowledged that “All significant concepts of the modern theory of the state are secularised theological concepts.” After the war he was preoccupied with the possibility of a general return to and restoration of Christian thought and ideas of natural law, and he reformulated the natural law of theology on the basis precisely of his juridical categories of legality and legitimacy.

He had early theorised the constitution as deriving its origin from a pouvoir constituant, a political decision establishing the state, that is the political was a precondition. He now saw, in 1932, the Reich president as a pouvoir neutre, ideally possessing a “rare type of authority” based on “the impression of a great political success; perhaps from the authoritarian residue of predemocratic times, or from the admiration of a quasi-democratic elite”. Such a personage, and it would have to be a specific person, because if the system of norms was not to remain a disembodied abstraction and to become a concrete legal order, it would have to be identified with a real person who would be the representative of the entire judicial order. As to the procedure in this regard, Schmitt, an admirer of Mussolini, said that “the natural form of the direct expression of a people’s will is the assembled multitude’s declaration of their consent or disapproval, the acclamation”. The leader would exercise plebiscitary rule by means of questions posed to a passive people, which would “only respond yes or no. They cannot advise, deliberate, or discuss. They cannot govern or administer. They cannot set norms but can only sanction norms by consenting to a draft set of norms laid before them. Above all, they cannot pose a question, but can only answer yes or no to a question placed before them.”

It is clear by this stage Schthat mitt, if not, as often claimed, Crown Jurist for the Third Reich, is at the very least one of the main intellectual apologists for the situation which prepared the way for the twelve years of the Hitler regime which began in 1933.

And for Schmitt, the process from 1932 until 1936, when he was sidelined by the Hitler regime, was a shameful one, which for many both then and since has ruled him out of serious consideration in the fields in which he was active all his life. Hitler’s seizure of absolute power through the Enabling Act of January 1933 did not elicit any public reservations from Schmitt, perhaps unsurprisingly, in view of his promotion of decisive government led by a person who could only be brought to account in the most minimal fashion. But when, in 1934, Hitler ordered a series of murders around Germany, including that of one of Schmitt’s erstwhile patrons in Berlin, General Kurt von Schleicher, and his wife (“The Night of the Long Knives”) Schmitt published an article with the title “The Führer Protects the Law” praising the purge as a form of “revolutionary justice”. He greeted the Nuremberg Laws in 1935 with a publication called “The Constitution of Freedom”. He distanced himself from all his Jewish friends and acquaintances and advocated the removal of Jewish publications from academic libraries. As mentioned, he justified his antisemitism not on ethnic grounds. It was true that many eminent jurists in the Germany of the twenties and thirties were assimilated Jews, such as Hans Kelsen, with many of them he had intellectual disagreements. He had claimed in a speech earlier that “There are peoples who exist only in ‘the Law’, without soil, without a state, without a churc; to them normative thought is the only rational juristic thought, and any other mode of thinking is inconceivable, mystical, fantastic or laughable.” Doubtless he could not be accused of being directly behind the decisions on the Final Solution taken at the Wannsee Conference in 1942. But his rhetoric before and after that infamous conference was entirely consistent with that of the Nazi regime which gave rise to this – a typical trope of this was that the Jews were vaterlandslose Gesellen, or mere types without a homeland, rootless cosmopolitans.

Schmitt’s entrée into that well-lit room in Berlin was through his legal services being called on to subvert the Weimar regime, which, as has been seen, he regarded as fundamentally flawed. He was involved in this capacity in the Machiavellian manoeuvrings around President Hindenburg to unseat undesirables in the Reichstag. The quasi-conspirators in this game were Kurt von Schleicher and Franz von Papen. Which of the two Schmitt was closer to is a matter of debate: Reinhard Mehring thinks it was von Papen, others, von Schleicher. In pursuit of these manoeuvrings, Schmitt was the lead counsel in the action taken by Hindenburg’s camarilla to unseat the Prussian state government in favour of the Reich. He helped draft the Reichsstatthaltergesetz of 1933, which, by means of Gleichschaltung, or co-ordination, effectively transferred decisive power in Germany and its federated states to Hitler and the Nazi party. Goering subsequently became minister president of Prussia, and Schmitt accordingly became his protégé. Goering arranged for Schmitt to be appointed a Prussian state councillor, a rank of which he would always remain inordinately proud. In 1933 also, Schmitt had published State, Movement and Folk. This represented a move away from an earlier view that a criterion for the determinacy of the law was consistent practice among judges: “a judicial decision is correct today when it can be assumed that another judge would have decided in the same way”. Now, after endorsing the expulsion of Jews and radicals from the civil service, Schmitt argued that only being bound to the people, Volksgebundenheit, and ethnic homogeneity, Artgleichheit, could guarantee the required homogeneity of legal interpretation. This of course had the implication of racial homogeneity among the judiciary. In the light of all these services to the cause, Schmitt was undoubtedly under the illusion that he would become indispensable in his capacity as a useful legal expert to the new regime, ignoring the fact that Hitler, once he attained power, was not at all interested in its legal basis, still less in the intellectuals who trafficked in these matters.

Thus it was only Goering’s protection which saved him from more serious adverse consequences when, in 1936, he was attacked in the SS’s organ Das Schwarze Korps because of his Catholic and Jewish connections, and dismissed from all his party and honorary positions. Inasmuch as he had been excommunicated from the Catholic church because of bigamy and that he had traitorously renounced all his Jewish friends, the exclusion did not lack irony. It was only thanks to Goering’s intervention that he retained his chair at Berlin University and his Prussian title. Even though he was excluded from the inner councils of the party, Schmitt did not cease to advance its cause from his academic perch. He published Völkerrechtliche Grossraumordnung (Grossraum order in international law) in 1939. This theoretical approach, which he would elaborate throughout the war, was an effort to visualise a global legal order, without, however, implying any overall ordering, which he considered impossible. Rather, a series of large spaces, Grossräume, were envisaged in which effectively a dominant regional power would form the kernel of a large space in each case. He invoked the example of the Monroe Doctrine, in which the USA effectively excluded other powers from the American hemisphere, as a headline. The war having just begun, it does not need any unusual imagination to see that Germany in this perspective as the dominant power in Europe, and there is an emphasis on the requirement for outside powers to refrain from interfering. Indeed, in his earlier (1934) National Socialism and International Law, Schmitt had said that “an authentic League of European peoples can only be successfully grounded by acknowledging the problem of ethnic substance and by resting on the national and ethnic relatedness of these European peoples”. Apart from the specific exclusion of the Soviet Union from this, and providing that Germany would decide on the “substance” of this new system, Schmitt did not go into further details. He worked on The Nomos of the Earth during the war – it was published in 1950. The somewhat fanciful etymological play apart – he speculates that the Greek νομος, generally translated as “law”, is related to the German nehmen, or take, and that the foundation of all order is the primeval taking and occupying of land and the legal provisions that follow from maintenance of this aboriginal right. In this case too, there is evident a constant theme of Schmitt’s: the foundation of all order is an original decisive act which is based on overwhelming executive power. But Schmitt did not admit any possibility of a unified global order. There would, he said, always have to be an “inside” and an “outside” in international relations – one might say that at global level too a friend/foe relation was for him constitutive.

From 1940, Schmitt engaged in lecture tours to France, Hungary, Romania, Spain and Portugal, in which he propagated his authoritarian views on law, domestic and international. It is not necessary to underline that all this was seen with favour by the Hitler regime. He maintained his main place of residence in Berlin throughout the war. In 1945, he was briefly arrested by Soviet occupation forces, but quickly released as not being of interest. He was subsequently arrested by the Americans and interned in a detention camp from September 1945 until October 1946. He was interrogated by Robert Kempner, a Jewish émigré, in the context of the Nuremberg Trial, as a possible witness. He was however eventually released and returned to his birthplace, Plettenberg in the Sauerland, where he lived for the next thirty-nine years.

From Plettenberg, Schmitt gradually built up a circle of devotees and influential friends. He participated in seminars in which many of the participants were profoundly influenced by his thought. Some consider that he had an influence on the drawing-up of the Basic Law, the new West German, now all-German Constitution. It is certain that he had some influence, through those he encountered privately and in these seminars. There is equally little doubt that his polemics in regard to the Weimar constitution were in the minds of the drafters of the Basic Law. Perhaps the single most impressive of those he influenced in these times was Ernst-Wolfgang Böckenförde, sometimes called his student, who subsequently became a member of Germany’s powerful constitutional court. Böckenförde’s best known pronouncement, sometimes called Böckenförde’s dilemma, is “The liberal secularised state lives on preconditions that it cannot itself guarantee.” In Jan-Werner Müller’s view, it is not an accident that this appeared in an article on secularisation. The dilemma points to the dispute between Schmitt and legal positivists, Hans Keller above all, in the Twenties and Thirties. As has been seen, Schmitt rejected positivism, in due course with an ethnic antisemitic grounding. In more reasonable times, Schmitt reproached the Kelsen school with advancing the proposition that law was valid because it was valid. Kelsen responded that the idea that “the judicial decision is already contained, in finished or complete form, in the statute” and that its derivation from the statute was simply a matter of logic was “judicial decision-making qua slot machine”. Taking the argument further, Rudolf von Jhering suggested as a model for the decision the digestive process of the duck: “From the front, the case is inserted into the judgment-making machine, and then the case qua judgment comes out at the rear.” It is not at all clear that Kelsen’s approach is immune to such argumentation. However that may be, as has been seen, Schmitt at some level was conscious of the problem of excluding value from the process of legal decision, and at various times pointed to natural-law considerations, even if he didn’t formally adopt them in his practice or theory, but rather insisted on the power basis of adoption of valid law. That Böckenförde was a Catholic is more than incidental – indeed, Schmitt’s own self-description was as a Catholic German gentleman. Nor was it an accident that Böckenförde’s brother, a priest, eventually gave Schmitt a Catholic burial. It seems clear at any rate that positive law is not sufficient. Perhaps the best answer is that given by David Dyzenhaus, more easily applicable in common-law systems: “the law that rules is not just positive law; the law includes values and principles to do with human dignity and freedom. It also presupposes that judges are the ultimate guardians of these values.”

Schmitt’s view of the position of Jews in Germany was, as has been seen, inexcusable. Yet, to use a very old cliché, some of his best friends were Jews. This applies especially to the brothers Fritz and Georg Eisler, to whom he was very close. Fritz indeed had died in German uniform in the First World War. The young Walter Benjamin had sent Schmitt a copy of his The Origins of German Tragic Drama of 1930, with a note acknowledging his intellectual debt: “You will quickly notice how much the book in its presentation of the seventeenth-century doctrine of sovereignty owes to you. Perhaps I could say in passing that I have also inferred from your later work, above all Die Diktatur, a confirmation of the research approach of my philosophy of art through your philosophy of the state.” The contrasting fates of the two men under National Socialism made the letter seem almost incredible when Schmitt made it public in connection with his Hamlet or Hecuba of 1956, probably in part to fudge the record, all too clear, of his antisemitism. The letter intrigued many, among them Jacob Taubes, the son of a Viennese rabbi. He had held the position of professor of religion at Columbia University, and became professor of Judaic studies and hermeneutics at the Free University of Berlin in 1966. In 1967, Alexandre Kojève, the Russo-French Hegel scholar (notable for his influence on Francis Fukuyama’s The End of History and the Last Man) attended a conference in Berlin in 1967. Jacob Taubes was looking after him.

I asked him in Berlin: where are you heading from here? (He had come to us directly from Beijing.) His answer: to Plettenberg. I stared at him in bewilderment, even though I was used to surprises with Kojève. Kojève proceeded “where else should one go in Germany? Carl Schmitt is the only one worth talking to.” That stung me, because I forbade myself from visiting Carl Schmitt and envied … Kojève the impartiality with which he consorted with him. But in the end, Kojève was a Russian, originally Kojevnikoff, and wrote his dissertation under Jaspers in Heidelberg about Vladimir Soloviev, the Russian “Hegel” and friend of Dostoievsky. Ergo a member of an apocalyptic nation – just as Carl Schmitt was a member of the German Reich with healing claims – and me, the son of the true chosen people that just arouses the envy of the apocalyptic nations, an envy that puts phantasmagoria into the world and denies the chosen people’s right to exist. It is no question for me that the Jewish problem occupied Carl Schmitt his whole life, that 1936 was merely an occasion to take a “timely” stand on the problem, which, for him, possessed quite other dimensions. It was Christ of the Gentiles who stared upon those with hate and envy “to whom pertaineth the adoption, and the glory, and the covenants, and the giving of the law, and the service of God, and the promises, whose are the fathers, and of whom concerning the flesh Christ came”.

The quotation at the end is from St Paul’s Letter to the Romans. The whole is remarkable as an indication of the terrible intricacies of relations between Christians and Jews in Germany. Taubes was a professor of Judaica and hermeneutics; Schmitt was extraordinarily well-versed in Scripture, and no stranger to biblical quotations, as his frequent references to the katechon, from St Paul’s Letter to the Thessalonians, shows. But it goes further. Taubes visited Schmitt, where, he says, he had the fiercest conversations in the German language: “it is the prejudice of the guild that mythical images or terminology are called vague oracles, pliant and obedient to the will of all, whereas the scientific language of positivism has a lease on the truth … Nothing can be further from the actual situation than this historical prejudice.” He went on:

If I understand his work at all, he is the only one who said what is going on – that is, a global civil war is in the works. Right after World War I, he could have become a Leninist, but he had what it took to become the only relevant anti-Leninist. That all of this got lost in the Hitler-mush is the most fatal consequence, but not the only one. That means that the history of the Weimar Republic was steering towards an end. That has a fatalistic character. That was one possibility – and it was the worst one. So, I am truly not qualified to teach or even to defend German history, but to say that German history (be it since Luther, Bismarck, Charlemagne or Schmitt) was leading up to Hitler, well, that is something I just cannot believe. These genealogies are cheap and cost nothing, just time in the library. That is not the case, there were open possibilities that were buried alive.

After another conversation with Schmitt, Taubes wrote in September 1979:

Dear Mr Schmitt, please allow me to thank you once again for your friendly, indeed amicable, reception, for your patience and for the openness with which you discussed the failures in the long life of a legal expert. Even in the failures, “an incomparable political teacher” (and I permitted myself the variation of a word that still resounds in my ears from my college years). As an arch-Jew, I hesitate to roundly condemn someone because in all the unspeakable horror, we were saved from one thing. We had no choice: Hitler had declared us a total enemy. But where there is no choice, there can also be no judgment, much less on others. That does not, however, mean that I am not concerned with understanding what “actually” happened (and not in an historic sense, but rather in an eschatological one). Where were the foundations laid for (our and your) catastrophe?

This cannot of course be read as a complete exoneration of Schmitt: the record otherwise is far too unambiguous. But it speaks to the struggle that Taubes, and, no doubt, Schmitt too, underwent in order to come to terms with what Taubes calls “unspeakable horror”. Failure seems to be an acceptable description of Schmitt’s role as a “legal expert”. But, at least in the eschatological perspective, in which both were adept, there was room for the consideration that the foundations for the “horror” were laid down, perhaps on all sides, in the past.

Schmitt’s longer-term influence is one that still calls for some thought – in fact, whatever his motivation at the time, they are of continuing, sometimes topical, concern. We have already seen how the Böckenförde dilemma provokes debate. When it comes to the emergency situation, its topicality cannot be denied in the middle of a coronavirus crisis where democratic governments everywhere have taken unprecedented decisions affecting the lives of all citizens. Cases have been brought before courts in order to test their legality. Neither can it be denied that, as the French say, rien ne dure comme le provisoire. We read this week that the state of emergency declared here in 1939 was repealed only in 1976, only to be replaced by a new state of emergency. A group of liberal US senators determined that in 1974 there were “at least 470 significant emergency statutes without time limits delegating to the Executive extensive discretionary powers … The vast range of powers, taken together, confer enough authority to rule this country without reference to normal constitutional processes.” The Korematsu ruling, whereby the Supreme Court decided that the wartime internment of citizens of Japanese origin was not unconstitutional, has never been overruled. Since then in the United States, there has been Guantánamo, which President Obama failed to get closed, the Patriot Act, and “extraordinary rendition”.

On May 5th last, the German Constitutional Court handed down a judgment that the European Central Bank had exceeded EU competence in its Public Sector Purchase Programme, a decision of some moment when it comes to the division of competences between the Union and its member states. This need not concern us here specifically. But it is a matter of great moment in regard to the quality of German membership of the EU, and thus has been the subject of lively comment within Germany. In the Süddeutsche Zeitung of May 9th, the paper’s main political commentator, Heribert Prantl, takes the constitutional court roundly to task for exceeding its competence. In it, Prantl defines the EU as a state, inasmuch as it is a legal order. The quality of the state as a legal order goes back, he says, “to the legal philosopher Hans Kelsen, who was the great opponent of the Nazi jurist Carl Schmitt. Kelsen came to this view through his experience of the Habsburg Empire; it was a ‘legal unity’. Kelsen analysed in terms of a State which came together from so many different groups according to language, religion, and history. Theories which wish to found the unity of the State on a sociopsychological or biological connection of the people who juridically belong to the State are fictions. The State as a legal community and the nation as a cultural-ethnic imagined community were separated by Hans Kelsen: the EU is a legal community.”

The implication that the German constitutional court was operating on the basis that the EU to qualify as a state needs a Schmitt-type foundation myth is of course unwarranted. But the episode does show that the Schmitt-Kelsen argument of the twenties and thirties has not gone away.

How to summarise the continuing impact of Schmitt on legal thinking and international relations theory? A career so productive and so long – he published for over sixty years – makes any brief summary daring. Nevertheless, it can be said that one factor remained constant during all his active life. No doubt the history he lived through and the country in which he lived it marked his thought strongly. In addition, the syndrome of the intellectual’s exhilaration at the prospect of vigorous action by the powerful no doubt also played a part. The central lesson he drew from this complicated, often apparently threatening, situation was the need for strong and decisive executive action to confront the challenges of politics, both domestic and international. He was a habitual user of Latin phrases: auctoritas non veritas facit legem, authority, not truth, makes the law was one of the most often used. This authority or power, he concluded, needed to be personal, and to rely for its substantive support on popular acclamation. This acclamation was to be achieved through a quasi-plebiscitary machinery, which allowed the populace only the possibility of saying “yes” or “no”. The emphasis on taking or seizing land as the foundation for the nomos of the earth partakes of the same logic and the friend/foe dichotomy finds its counterpart in that of the inside/outside. His heirs today in “acclamatory” democracy, even if they do not acknowledge it, are Jair Bolsonaro, Recep Tayyip Erdoğan, Viktor Orbán and perhaps Donald Trump. His binary model of thinking on international relations is standard for the most part at a time when it is becoming increasingly clear that global-scale thinking, decision and action are needed. There are thinkers in China who reject the insider/outsider paradigm as the product of flawed Western thinking. When what they propose instead is a development of traditional Chinese thinking, in which China is the Empire of the Middle, it is not at all clear that the world would benefit from this example.

The overall conclusion: in the words of Jan-Werner Müller’s book title, Schmitt was a dangerous spirit.

1/7/2020

Works drawn upon in this essay
The Oxford Handbook of Carl Schmitt, ed., Jens Meierhenrich and Oliver Simons, Oxford University Press, 2019
The End of Law: Carl Schmitt in the Twenty-First Century, William E Scheuerman, Rowman and Littlefield, London, 2020
Carl Schmitt, A Biography, Reinhard Mehring, Polity Press, Cambridge, 2014
Ein gefährlicher Geist, Jan-Werner Müller, 2nd Edition, Wissenschaftliche Buchgesellschaft, Darmstadt, 2011
Gespräche in der Sicherheit des Schweigens, Carl Schmitt in der politischen Geistesgeschichte der frühen Bundesrepublik, Dirk van Laak, Akademie-Verlag, Berlin, 2002
The Enemy, An Intellectual Portrait of Carl Schmitt, Gopal Balakrishnan, Verso, London and New York, 2000
Ernst-Wolfgang Böckenförde, Recht, Staat, Freiheit, Suhrkamp Verlag, Frankfurt am Main, 1991

Pádraig Murphy is a retired official of Ireland’s Department of Foreign Affairs.

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