9. Carl Schmitt
INTRODUCTION
Volker Neumann
I
Carl Schmitt was born on 11 July 1888 in Plettenberg. After studying law and receiving his doctorate, Schmitt wrote his Habilitationsschrift at the University of Strasbourg in 1916 on political philosophy (Der Wert des Staates und die Bedeutung des Einzelnen [The Value of the State and the Significance of the Individ ual]). Found unfit for the military because of his health, he served instead in the military administration in Munich until 1919. His friendship with expressionist writers and Catholic intellectuals dates from those years; under their influence, he tried his hand as a writer and cultural critic.[1] His first positions as a professor of public law were at the universities of Greifswald (1921–22) and Bonn (1922–28). In 1928, he accepted the chair at the Handelshochschule in Berlin that had been held by Hugo Preuss, father of the Weimar Constitution.
During the subsequent crisis-years of the Weimar Republic, Schmitt developed the theory of a state that is “total through its strength.”[2] He held the pluralism of parties and associations responsible for what he considered the state's destruction and placed his hopes for the restoration of unity on a presidential dictatorship. That dictatorship, Schmitt hoped, would be led by President von Hindenburg—as guardian of the constitution, supported by the army, the bureaucracy, and a healthy economy in a strong state—who would defend the “substantive contents” of the constitution against the “value-neutral” legality of the political system—that is, against the parties
Schmitt joined the NSDAP on 1 May 1933, published energetically on behalf of the new regime, and was appointed to influential government positions. A high point of his activity was the article “The Führer Protects the Law” [Der Führer schützt das Recht], in which he justified the murders ordered by Hitler in connection with the so-called Röhm Putsch.[4] He rose so quickly that he became entangled in the regime's internal power struggles. In 1936, the SS took steps against the convert and managed to end his rising career within the party in a dispute that reached all the way into the top levels of the Nazi hierarchy. Schmitt's writings prior to 1933 and his Jewish friends and mentors served as grist for the attacks.
The reasons for Schmitt's conversion to Nazism have occasioned much debate. To interpret his publishing and political activity as self-protection in a difficult situation is factually untenable;[5] Schmitt was never in danger, and his downfall in 1936 was merely a career setback. One important motivation was his belief that a movement inexperienced in dealing with state power would need political theorists and lawyers expert in the law of the state. Above all, it must be remembered that for Schmitt, as for many other conservative critics of Weimar, Geneva, and Versailles, Nazism had many seductive features.
No anti-Semitic statements can be found in Schmitt's works prior to 1933. This changed. The height of his anti-Semitic effusions came at a conference titled “Jewry in Legal Scholarship” [Das Judentum in der Rechtswissen schaft] on 3 and 4 October 1936. Schmitt opened the conference with a defense of “the magnificent battle by Gauleiter Julius Streicher” against “Jewish emigrants.”[6] In his closing remarks, he explained that it was quite wrong to depict Friedrich Julius Stahl (a conservative Prussian political philosopher) as
an exemplary conservative Jew in comparison with later Jews, who unfortunately were that no longer. This dangerously overlooks the essential insight that, with every change in the overall situation, a change also occurs in overall Jewish behavior, a demonically enigmatic change of masks, in face of which the question of the subjective good faith of the particular Jewish individual
Several American accounts have advanced the claim that Schmitt's anti-Semitism paid “lip service to Nazi views by inserting the odd anti-Semitic remark into his publications.” These “early references to race” are said to be “irrelevant to the content of his work and artificially placed within the text.”[8] This is as erroneous as the even more extreme interpretation that “Schmitt, a Catholic, by paying some lip service to the new vogue, had hoped to steer the rampant anti-Semitism into a more traditional Christian channel.”[9] First, Schmitt was not simply parroting anti-Semitic phrases: “proving” Stahl's Jewish background (Schmitt called him “Stahl-Jolson”) was Schmitt's own very personal “research contribution” to anti-Semitism. Second, as early as 1933 Schmitt cited Stahl (who had converted to Protestantism) as evidence of the destructive influence of Jews on the Prussian state—a position incompatible with religiously based anti-Semitism. Third, Schmitt's anti-Semitism had a very precise connection to the “content of his work”: He denounced as “Jewish” liberalism and legal positivism, “abstract normativism,” and the “Vienna School of the Jew Kelsen.” Finally, his diary entries for the years 1947 to 1951 trace an unbroken continuity with his anti-Semitic statements from the 1930s and reveal Schmitt as a hard-core anti-Semite long after the defeat of the Third Reich: “The assimilated Jew in particular is the true enemy. There is no point in proving the Protocols of the Elders of Zion to be false.”[10]
Following his fall from grace in 1936, Schmitt shifted to international politics and international law. However, he was unable to regain any political influence. After Berlin was conquered by the Red Army, he was arrested by Soviet troops but released following interrogation. In September 1945, his apartment was searched by U. S. soldiers and his library confiscated. He was taken into custody and brought to Nuremberg; there, he was interrogated by Robert M. W. Kempner[11] and released again in May 1947. Schmitt returned to his birthplace, Plettenberg, where he gathered a circle of the likeminded around him and exercised a not-inconsiderable influence on the intellectual history of the young Federal Republic. He died on 7 April 1985, at the advanced age of 97.
II
In the context of twentieth-century German state law theory, Schmitt takes the position opposite to that of state law positivism in general and to Hans Kelsen's theory of legal norms in particular. His criticism of the unity of the epistemological position of the Pure Theory of Law can be boiled down to one sentence: “Unity and purity are … easy to achieve if one emphatically
Schmitt's interest focused on the irregular and pathological characteristics of law and reality. No other Weimar state law theory so deserves the label “jurisprudence of crisis.” Schmitt's theory takes the exception as its starting point. Every concept has in view a political enemy and, without this concrete opposition, is a pointless abstraction. Law and politics cannot be neatly separated, state law concepts are based in political principles, and political theory is always a theory of conflict. The supposedly pure legal methodology of positivism is, in reality, quite political: it is an expression of bourgeois secu-rity—though in fact outdated, because the bourgeois, liberal rule of law, like bourgeois society itself, was in crisis. “The Liberal Rule of Law “ [Der bürger liche Rechtsstaat (1928)], published below, offers insight on the causes of this crisis, to which, in Schmitt's view, the liberal bourgeoisie had shut its eyes: The institutions and procedures of the liberal rule of law had proved unable to integrate the class-conscious working class into the political unity of the state. This anti-Marxist motif dominates Schmitt's Weimar writings and is evident even in his later work.[12]
Schmitt's political stance against Marxism and his simultaneous intellectual affinity with Marxist political philosophy become especially clear in The Concept of the Political [Der Begriff des Politischen (1928)]. A contemporary called this work the “bourgeois answer to the Marxist theory of class struggle.”[13] To Schmitt, a decision is political if it has the power to distinguish between friend and enemy. This concept of politics explains Schmitt's unique position in Weimar state law theory—unique because his cognitive interests mainly involve the social processes that determine and accelerate
Thinking in concrete oppositions still does not explain the inflation of these oppositions to the extreme—that is, into irreconcilable conflicts and enmities that admit of no compromise. This inflation is caused by his political theology. The analogy between concepts of politics and state law, on the one hand, and theological concepts, on the other, has little in common with theology. The analogy is interested in theological content only where it can be used to turn political ideas into absolutes—into ultimate truths. Political theology functionalizes transcendence for secular purposes; more precisely, it is an associative schema that can articulate both dissatisfaction with the merely relative truths of parliamentary democracy and a diffuse, but all the more determined, quest for absolutes. This is the basis of Schmitt's excessive polemic against discussion, compromise, and mediation, the exuberance of determinateness, and the apocalyptic metaphors of the state of exception (taken from the Spanish counter-revolutionary Donoso Cortes). A 1948 diary entry is instructive: “This is the secret key to my entire intellectual and published existence: a struggle for intrinsically Catholic intensification (against the neutralizers, the aesthetic idlers, against abortionists, cremators, and pacifists).”[15]
Schmitt thinks from above—from power. Law and the state are no more based on human autonomy “than the sun is defined as a fire kindled by freezing primitives to warm themselves.”[16] This anti-individualism forms the basis of his democratic theory. Democracy is the identity of rulers and ruled. A criterion of this identity is a “specific and substantial concept of equality,” as are similarity, homogeneity, and after 1933, “species equality,” but not the empirical agreement of expressed wills. This break with all traditions of the Enlightenment is radical: For Schmitt, the ultimate basis of democracy in the philosophy of the state is not self-determination of the individual.
This anti-individualism is supplemented by anti-pluralism, which—as shown by the essay “State Ethics and the Pluralist State” [Staatsethik und pluralistischer Staat], published below—is developed through a critique of the Anglo-Saxon authors, G.D.H. Cole and Harold I. Laski. Because social differentiation and the organization of interests in associations desubstantialize substantive similarity, pluralism threatens the state's political unity.
This concept of state theory is rounded off with anti-liberalism and antiparliamentarism. The state based on the liberal rule of law, with its parliamentarism, is not a political form of state—that is, one that distinguishes between friend and enemy—but a system of restrictions and checks on the state. This system is historically outdated because it is not able to integrate the proletariat, “as a class without property or education,”[17] into the political unity of the state. Therefore, Schmitt recommends rescuing democracy “from its concealment by liberal elements,”[18] which are the parts of the constitution dealing with the rule of law. The secret ballot and parliamentary decision making procedures are replaced by the “original democratic phenomenon” of acclamation, through the “accepting or rejecting shouts of the assembled crowd.”[19]
Schmitt's theory of the state culminated in his theory of the compatibility of democracy with dictatorship, developed in the course of a stroll through the history of political ideas, beginning with Rousseau and ending with Mussolini. This argument, based as it is on intellectual history, confirms that Schmitt's thinking was marked by the fundamental conviction that ideas control life; for as long as “ideas survive, the notion prevails that something preexists the given reality of the material, something transcendent, and this always means an authority from above.” Human dignity and autonomy are the casualties of vertical thinking.
Schmitt found himself not only in a struggle with Weimar but also with Geneva and Versailles. His essay “The Status Quo and the Peace” [Der Status quo und der Friede (1925)] gives some insight into the motivation and purposes of this struggle. In his sharp criticism of the Versailles Treaty, Schmitt was in agreement with almost all his German and professional colleagues. What is problematic is his understanding of the Charter of the League of Nations as a perpetuation of the status quo created by the treaty. His method of conceptual exaggeration led to a restrictive interpretation of Article 19 of the charter, which provided for the possibility of revising treaties that endangered world peace, and could have been applied to the Versailles Treaty
—something other German international law scholars in fact recognized. But this would have meant accepting the legality of the League of Nations. Instead, Schmitt extended his critique of constitutional positivism, and soon also of domestic pluralism, to international politics, turning political principles of legitimacy against legality in international law as well. His nationalism explains why he saw in National Socialism a way out of what he considered the “unbearable” (for Germany) “intermediate state between war and peace.”[20] His works on international law published after 1933 justify Nazi Germany's foreign policy and military expansion. Nevertheless, here too, certain analyses—such as that of the significance of technology in the order established in a sphere of influence [Großraumordnung] or of the instruments
III
Few German authors have been written about as much or engendered as much controversy as Schmitt. It is no longer possible to keep track of the literature, and it continues to grow. This is not only true of German-speaking countries and countries like Italy[21] or Spain,[22] in which he has long been read and critiqued.[23] In the United States, interest in his work is documented by several translations[24] and a growing number of secondary works, mainly in political science.[25] Increasingly, the conflicts dealt with in the German debate about Schmitt's theory of law are being taken up in the United States. Ellen Kennedy can be credited for courageously kicking off a lively controversy in recent years over the influence of his work.[26] What are the reasons for his (almost) worldwide currency?
Schmitt's position in his disciplines, the law of the state and international law, does not sufficiently explain his currency today. The significance of his contribution to legal doctrine lags far behind the influence of his work. Certainly he developed concepts that remain present in the scholarship of public law and are often used to explain problems situated in the overlap between the law of the state and politics. However, there has been little systematic reception of his theories, in the sense of their integration and further development within constitutional doctrine. This is not surprising, as the reference of state law solutions to the problems of a specific time and Schmitt's development of legal concepts from political principles limit the possibility of processing them into doctrine.
Schmitt's effect on the emergence of the Basic Law of the Federal Republic of Germany [Grundesetz für die Bundesrepublik Deutschland (1949)] is a subject of controversy. The constructive vote of no-confidence in Article 67 of the Basic Law (permitting a vote of no-confidence only when there is a replacement, as opposed to a destructive vote of no-confidence, which permits one without a replacement), of which Schmitt is considered the guiding spirit, had many fathers; it was not he, but Ernst Fraenkel, who first called for including this provision in the Reich constitution.[27] It is an exaggeration to assess the guarantee against changing certain eternal constitutional principles in Article 79(3) as an “expression in positive law” of Schmitt's doctrine of the substantive limits of constitutional revision. This provision can plausibly be traced back to Richard Thoma, who participated as an adviser in drawing up the Basic Law and in 1948 proposed such a “norm of inviolability.”[28] In 1932, however, Thoma had dismissed Schmitt's doctrine as “wishful legal thinking,” so that his position in 1948 can be considered a revision of his Weimar critique. Thus Schmitt was present in the emergence of Article 79(3)
All in all, Schmitt's contribution to his discipline was significant but far from outstanding. However, it must be noted that his influence on German state law theory cannot be measured by the visible reception of his work but is also felt in the form of covert influence on attitudes. When in doubt, a Schmittian—and here too, the exception proves the rule—will opt for state order and against democratic freedom.
So why Carl Schmitt? The answer follows from the time in which he lived, the themes about which he thought and wrote, and the method he used. His life and work included four epochs of the German state: the Empire, the Weimar Republic, the National Socialist Third Reich, and, following the interim of occupation, the Federal Republic of Germany. German history in this century was an experimental field for political ideas and forms of state, a laboratory in which the durability of state structures and human associations was tested. Schmitt observed and analyzed these experiments. He did not do this from the distanced perspective of the scholar; instead, he threw his positions and concepts on the “scales of the times.”[30] He was aided by a seismographic feel for political processes and intellectual developments that always kept him a bit ahead of his time. His answers to the challenges of the times may be contestable, biased, or even reprehensible; however, in the very problems they pose they reflect the virulence of the times. His work is a guide to this century's political history and history of ideas, and that makes it interesting.
In addition, Schmitt never allowed himself to be confined to the limits of his discipline. His theoretical interests reached far beyond legal scholarship and included philosophy, sociology, political science, theology, and literary criticism. The wealth of issues he discussed, the number of books produced, and the names of the authors he knew and with whom he corresponded are impressive. The response to his works is correspondingly rich. There are probably only a few authors who have become as much the subject of interdisciplinary discussion as he. All this makes his work an “Ariadne's thread”[31] for German and European intellectual history in this century. A separate literary genre, called “Carl Schmitt and …,” exists to examine his relationships with contemporary authors. With no claim to completeness, these include Hugo Ball, Karl Barth, Walter Benjamin, Hugo Fischer, Ernst Fraenkel, Hermann Heller, Karl Jaspers, Ernst Jünger, Otto Kirchheimer, Franz Neumann, Helmut Plessner, Johannes Popitz, Rolf Schroers, Leo Strauss, Max Weber, and—we gratefully note that this unacceptable gap in the research has been closed—René Girard![32]
It is not only the subjects dealt with that lead so many authors to take up
In answer to the question, “Why Carl Schmitt?” Bernhard Schlink referred to a need to integrate the Third Reich into German history. This integration becomes easier if more can be seen in National Socialism than the banality of evil. Unfortunately, Schlink defuses the explosiveness of his thesis by generalizing and speaking of “the need of all of us to de-banalize evil.”[33] It is no accident that it is Schmitt's person and work through which the attempt is made to lend continuity to German history beyond 1933. Schmitt rejected de-Nazification and uttered not a single self-critical word on his activities between 1933 and 1945. This defiance distinguishes him from others among the defeated, who quickly learned to make a place for themselves in and to adapt to the democracy they had been made a present of. Those who wanted could see in Schmitt's refusal to atone an unbroken biography, entitling him to authentic interpretation of the nation's history. Those who saw it this way joined the Plettenberg group. For them, Schmitt was the guardian of a national tradition, harmed neither by National Socialism nor by the victors. That is how they interpret his role in the Third Reich: For them, Schmitt gave meaning to National Socialism and in seeking to do so was doomed to failure because Hitler, “the executor without presuppositions,”[34] exploited Schmitt's correct ideas with fraudulent intentions. And his anti-Semitism could not be Hitler's anti-Semitism, but something more sublime, perhaps Catholic “anti-Judaism,”[35] whatever that is supposed to be; in any case, something which mysteriously “holds the historical core of the problem.”[36] With this, the reinterpretation from theorist of counterrevolution to Catholic thinker has been smoothly completed.
However, not even the most faithful pupil can close his eyes to the fact that the Master was fascinated by National Socialism and readily participated in it. But could not one then conclude that not everything about Nazism could have been evil and banal, if even an intellect as great as Schmitt was impressed by it? This conclusion has not yet been voiced openly. In any case, the prognosis seems correct that the question “whether the C. S. of 1933–1945 should be seen as a mere traffic accident, or as something more” will lead to a “major battle among his heirs.”[37] With publication of the Glossarium, the fight began. The message to the “Schmitt establishment” is that anyone wishing to belong to the school of Carl Schmitt must accept the entire
MAIN WORKS
Der Wert des Staates und die Bedeutung des Einzelnen. Tübingen: Mohr, 1914.
Politische Romantik. Munich and Leipzig: Duncker & Humblot, 1919.
Die Diktatur. Munich and Leipzig: Duncker & Humblot, 1921.
Politische Theologie. Munich and Leipzig: Duncker & Humblot, 1922.
Die geistesgeschichtliche Lage des heutigen Parlamentarismus. Munich and Leipzig: Duncker & Humblot, 1923.
Römischer Katholizismus und politische Form. Hellerau: Jakob Hegener, 1923.
Die Kernfrage des Völkerbundes. Berlin: Ferdinand Dümmler, 1926.
Der Begriff des Politischen. Berlin: Walther Rothschild, 1928.
Verfassungslehre. Munich and Leipzig: Duncker & Humblot, 1928.
Hugo Preuss. Tübingen: Mohr, 1930.
Der Hüter der Verfassung. Tübingen: Mohr, 1931.
Legalität und Legitimität. Munich and Leipzig: Duncker & Humblot, 1932.
Staat, Bewegung, Volk. Hamburg: Hanseatische Verlagsanstalt, 1933.
Über die drei Arten des rechtswissenschaftlichen Denkens. Hamburg: Hanseatische Verlagsanstalt, 1934.
Der Leviathan in der Staatslehre des Thomas Hobbes. Hamburg: Hanseatische Verlagsanstalt, 1938.
Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte. Berlin, Leipzig, and Vienna: Deutscher Rechtsverlag, 1939.
Positionen und Begriffe im Kampf mit Weimar-Genf-Versailles 1923–1939. Hamburg: Hanseatische Verlagsanstalt, 1940.
Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum. Cologne: Greven, 1950.
Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954. Berlin: Duncker & Humblot, 1958.
Theorie des Partisanen. Berlin: Duncker & Humblot, 1963.
Politische Theologie II. Berlin: Duncker & Humblot, 1970.
LITERATURE
Biographies
Bendersky, Joseph W.Carl Schmitt: Theorist for the Reich. Princeton: Princeton University Press, 1983.
van Laak, Dirk. Gespräche in der Sicherheit des Schweigens. Berlin: Akademie, 1993.
Noack, Paul. Carl Schmitt: Eine Biographie. Frankfurt am Main: Propyläen, 1993.
On his work
Hofmann, Hasso. Legitimität gegen Legalität. 2nd ed. Berlin: Duncker & Humblot, 1992 (1st ed., 1964).
Maus, Ingeborg. Bürgerliche Rechtstheorie und Faschismus. Munich: Wilhelm Fink, 1976.
Neumann, Volker. Der Staat im Bürgerkrieg. Frankfurt and New York: Campus, 1980.
Quaritsch, Helmut. Positionen und Begriffe Carl Schmitts. Berlin: Duncker & Humblot, 1989.
Quaritsch, Helmut, ed. Complexio Oppositorum Über Carl Schmitt. Berlin: Duncker & Humblot, 1988.
Schneider, Peter. Ausnahmezustand und Norm. Stuttgart: Deutsche Verlags-Anstalt, 1957.
Schwab, George. The Challenge of the Exception. Berlin: Duncker & Humblot, 1970.
THE STATUS QUO AND THE PEACE
Carl Schmitt
Originally appeared as “Der Status quo und der Friede,” in Hochland 23, no. 1
(Kempten and Munich: Jos. Kösel'sche Buchhandlung, October 1925), 1–9.
The word of the hour in political discussion today is “status quo.” All turns of phrase used to characterize mutual demands, all political proposals and counter-proposals, ideas such as security, guarantee, inviolability of treaties, sanctity of borders, circle about this concept. Three procedures have been proposed to organize peace with the hope that their implementation will bring peace on earth, but with disagreement over their sequence, particularly so in discussions at the League of Nations assembly of September 1924: security, court of arbitration, and disarmament. This sequence seems to have been agreed upon for now; whether it will endure, whether it might not be better to begin with “disarmament” or with a general “court of arbitration,” each of these terms ultimately means status quo. In its Memorandum of 9 February 1925, the German government expressly proposed a guarantee of the present status quo on the Rhine and thus opened a series of negotiations and consultations in the course of which the status quo is spoken of again and again.
Characteristically, one speaks today of the status quo and not the status quo ante, which was a favorite formulation in the era of traditional diplomacy. Thus one means the state of affairs as it stands. How it stands is apparently easy to recognize, for it is right in front of us. As to the status quo on the Rhine (which is most often mentioned), it is obviously distinguished primarily by the fact that the Rhineland is occupied territor y. The Versailles Treaty, the Rhineland Agreement with all its consequences and its practical application, the Inter-Allied Rhineland Commission's right of decree, quartering of soldiers and confiscation of housing, expulsion of Germans, etc.—all this is part of the state of affairs as it stands today. …
The status quo on the Rhine continues to be defined by the fact that the Rhineland remains demilitarized territor y, even beyond the borders of the occupied territory. Germany is prohibited from establishing fortifications on the left bank of the Rhine, or on the right bank within a line running fifty kilometers east of the river; in this zone, permanent or temporary stationing or gathering of forces is prohibited; any military exercise, any measure that could be considered preparation for mobilization, is forbidden. Through such a provision, the Rhineland is distinguished in international law from the rest of Germany. It is not yet neutralized, which would separate its fate in foreign policy from that of the rest of Germany; but we must not mistake the consequences of the existing distinction. No German soldier may ever again set foot on the soil of the Rhineland—not even for the purpose of putting down insurrection and unrest; any rail construction, any road construction, any possible transport or industrial facilities could, under a unilateral interpretation, fall under the limitless heading “preparation for mobilization”. …
This status quo on the Rhine—occupation and demilitarization—is only one part of the great system of burdens and limitations on the authority of the German state arising out of the Versailles Treaty and its implementation. They include the League of Nations Council's right of investigation under Article 213 of the treaty, territorial rupture of the German borders in the East, separating German tribes from the German Reich, the weight of reparations, foreign control of the German Reichsbank and of German railroads, over which the foreign railroad commissioner can exercise powers that, even though expressly defined as “exceptional,” by that very fact prove their link to the issue of sovereignty; further, they include limits on the construction of aircraft, and all the hundreds of treaty provisions that press Germany today. In this regard, the Rhineland is but an especially burdened part of the German Reich.
So this is the status quo on the Rhine and the status quo in Germany. In whose interest is it to guarantee it? In particular, who is interested in the Rhineland? …
Generally speaking, international political interest in the Rhineland as an occupied, demilitarized territory is based on its location, at the intersection of English, French, and German interests. What the status quo on the Rhine means can be recognized only from this aspect. The different powers regard the situation from very different points of view. Thus the word “status quo” has a different meaning for each of them. The English interest, for the time being, most likely tends toward preferring no disruption of peace on the European continent; preservation of peace accords with the economic interests of English commerce and English industry, as well as the political interest of preserving England's empire. The dangers that could threaten this empire today apparently are found not on the European continent but in
Only this one opponent, the alliance between Bolshevism and nationalism, could produce an English policy aimed at battle and war, allowing the world to experience another crusade following the crusade against Germany. Otherwise, England's political interest is aimed entirely at peace and preservation of the present status quo in the world; that is, the preservation of En-gland's world hegemony. Thus for England, the word “status quo” has a great and simple meaning. In the negotiations on the so-called guarantee pact, England is most concerned with avoiding new obligations, and pointing out that the Charter of the League of Nations already contains the maximum of English obligations.
French interest in the status quo is aimed at not surrendering any of the rights granted France and its allies in the Versailles Treaty. After all, this treaty has the essential quality of a treaty of intervention, in the specific sense of the word; that is, to allow, through purposely vague terms, the political and military treaty opponent to intervene constantly. The famous right to sanctions is only one case of the application of this systematic technique of intervention. For France, the issue is creating additional “security” for the very farreaching, existing possibilities; here that is especially a commitment from the English government. …
For France, therefore, the status quo = Versailles Treaty. Politically, this means preservation of France's military and political hegemony on the European continent; preservation of the military and political dominance of an armed nation of forty million over an unarmed people of sixty million; an armed people with a falling birth rate over an unarmed, sharply growing people whose industry is vainly seeking an outlet.
In comparison with the English and French, the German interest in the status quo is more modest, even pitiful. It is an interest in at least preventing the imposition of new obligations, or the emergence of more and more burdens and disruptions through unilateral interpretation of the Versailles Treaty. It is an interest in keeping at least the currency stable and defending it against new sanctions, reprisals, and other pressures. It is an interest that does not command a view of the entire world, as does the English, or at least of Europe, like the French; it is the interest of a people interested primarily in its industry, focused on the next moment, the next breath.
Germany, and especially the Rhineland, stands at the intersection of En-gland's worldwide and France's continental interests. In this situation, all of Germany, and especially the Rhineland, could sink to the level of a mere object counterbalancing these English and French interests. That is Germany's political status quo and the status quo on the Rhine. Any legalization of this situation would perpetuate this object character. …
It is quite remarkable that the status quo is to be guaranteed precisely at a point of rapid change and technical progress. It is strange that the age whose thinking is dominated by the idea of eternal becoming, eternal flow, and substanceless functioning would like to stabilize an existing state of affairs within the political domain. This in itself is inconsistent, but the actual inconsistency lies still deeper. From where, to ask again, does the need for a guarantee of the status quo arise? From the fact that the wish for calm, peace, and justice is linked with an inability to find a legal principle, a principle of legitimacy. One can guarantee only a legal state of affairs, not something merely factual; and even a legal state of affairs can be guaranteed only if it is perceived as normal. This being so, as we cannot reasonably deny, then the internal inconsistency in the moral condition of today's Europe seems horrifying. The situation as it actually exists is so unsatisfactory, so abnormal, and thus so unstable that the yearning for stability becomes stronger each day. From the yearning for peace and stability emerges the demand for a guarantee of the status quo—that is, a stabilization. But stabilization of the present situation would stabilize precisely this unsatisfactory, wholly unstable situation; and the result would be that, through artificial perpetuation and legalization, one achieves not calm and peace, but new conflicts, a new sharpening of contradictions, and perpetuation of the lack of stability. A dangerous, perhaps deadly cycle for entire peoples! That is the fateful aspect of this entire system of legalization and juridification of the status quo. We are told that a guarantee of the status quo is peace. Certainly, peace, even the peace, the peace of Versailles. A status quo stabilized on this basis is as problematic as the peace itself. Here, too, one sees the wealth of internal inconsistencies that today dominate Europe's political and moral condition. If the status quo is not peace, how can its guarantee produce peace? After all, the yearning for peace arises from the lack of peace in existing circumstances. The exhausted, tormented people who seek above all calm and peace are promised a guarantee that guarantees nothing but the causes of all disturbance and lack of peace.
In the course of the last century, the European peoples have heard many things described as “peace”: the Holy Alliance was peace; the French Empire under Napoleon III was peace; then, during the war, we were told that democracy is peace; we were told that the League of Nations is peace, and now we are told that the guarantee of the status quo is peace. But if the status quo itself is not peace, its guarantee is even worse than war—that is, the
THE LIBERAL RULE OF LAW
Carl Schmitt
Originally appeared as “Der bürgerliche Rechtsstaat,” in Abendland 3, no. 7 (Cologne: Gilde-Verlag, April 1928), 201–03.
[*] We have generally translated bürgerlicher Rechtsstaat throughout Schmitt's essay as “state based on the liberal rule of law.” To preserve the pithiness of the German title, we have shortened “state based on the liberal rule of law” to “liberal rule of law” in the English title, as well as in the essay itself. We translate “bürgerlich” as “liberal” rather than “bourgeois,” because “bourgeois” has very different connotations in English than does “bürgerlich” in German: “Bürgerlich” combines the ideas conveyed by the two French words, “bourgeois” and “citoyen” (“private man” and “citizen”), and refers to the liberal state in which a person can be both simultane-ously—actively pursuing economic interests while enjoying constitutionally guaranteed rights and freedoms. “Bourgeois” in English refers generally to the middle class rather than to a particular structure of state and economic life, and reference to the middle class in this sense is never a compliment; no English-speaker proudly claims the title “bourgeois.” The particular Rechtsstaat that is the subject of Schmitt's essay is thus the “state based on the liberal rule of law.”—EDS.
I
The new German Reich is a constitutional democracy. It has a constitution, just as it had a constitution under the monarchy; here, in the “constitutional,” lies an essential continuity linking today's Reich with the old Reich of 1871. This means that both forms in which the German Reich has existed as a state—monarchy and democracy—were modified and relativized through the prism of the state based on the liberal rule of law. There is no break, no revolution in the strict legal sense between the old and the new form of state. A constitutional democracy replaced a constitutional monarchy. The German Reich is not simply a democracy but a constitutional democracy.
The constitution of the German Reich, the element in the new democracy of a state based on the liberal rule of law, is the Weimar Constitution.
It has become apparent that the Weimar Constitution, contrary to the expectations of its authors and the claims of its defenders, is not a terribly vivid presence in the mind of the German citizen. Why is it something that, in the general view, is empty and unsatisfying? This is so for a number of reasons.
For one, the German Reich has at present been altogether deprived of a
There is also another historical element; in a certain sense, the Weimar Constitution is posthumous. It realizes demands, ideals, and programs that were already current in 1848. At the reestablishment of the Reich in 1870, liberalism and the rule of law—the ideas of this period—entered into Bis-marck's constitution only to a small extent. Otherwise, they were stifled for two generations. They did not achieve fulfillment until the monarchy, the opponent of 1848, had disappeared in the collapse of 1918, not because it had been defeated internally, but because an external, military defeat automatically eliminated it. After two generations, the ideas of 1848 won without a struggle. It is as if a young man of twenty who had courted a girl of the same age, but was rejected in favor of a rival, should win the widow decades later. Thus the achievement of the liberal program, which would have been a brilliant victory had it been fought for and won in 1848, came too late in 1919, when it fell without a struggle into the laps of the heirs of the collapse. This is another reason for that feeling of emptiness, that lack of enthusiasm one feels toward the constitution today.
But the Weimar Constitution bears within itself the essential explanation for that sentiment. We must attempt to deal with its structure in two sentences. This constitution is modeled following the type of constitutional scheme inaugurated in 1789. The ideological consciousness that times today are completely different may somehow have been present in certain protagonists of the so-called revolution of 1918, but not even a hint of this is actually expressed in the constitution.
For what was the decision that Germany faced at the end of the war? All at once it had become clear how things stood between West and East. It became apparent that Russia had in reality joined the liberal crusade against Germany only temporarily. The Bolshevik Revolution had proved how little Russia could ever embody the rule of law in the Western sense. A German constitution would have had to include a choice between East and West or a decision emanating from the full strength of German particularity. Awareness of this necessity explains the sociopolitical program in the second part of the Weimar Constitution. The political decision, the substance of the constitution, was made in favor of the West, the tradition of the liberal rule of law of 1789.
This state based on the liberal rule of law is generally characterized by its foundation on the basic rights of the individual and the principle of
What is interesting here is the essentially political question of the relationship between the liberal rule of law and the form of the state. This question is avoided by reference to “separation of powers.” It is no longer the form of state that is discussed, but instead the organization of the legislature, the executive, etc. Nor is democracy any longer the form of a state but rather the form in which legislating is organized. In this way, of course, all the consequences of the democratic in its political sense are prevented. The executive, on the other hand, is organized monarchically, because one cannot “separate powers” without organizing them according to different contrary formative principles. Thus the state based on the liberal rule of law is a status mixtus that purposely balances contrary principles in the interest not of political unity but of individual freedom. An absolute democracy destroys freedom no less than an absolute monarchy. This is always the consequence when the monarchic or the aristocratic or the democratic formative element is accomplished in its purity. Even if the state based on the liberal rule of law balances all three elements without accomplishing one consistently, its basic principle—that the individual cannot be controlled—remains intact but the substance of the political is destroyed.
Both principles of the state based on the liberal rule of law—freedom of the individual and separation of powers—are apolitical. They comprise not forms of the state but rather methods of organizing restraints on the state. Here we see the direct influence of liberal thought, hostile to all formative elements: “Freedom constitutes nothing” (Mazzini). It must be emphasized above all that the state based on the liberal rule of law is not a form of the state or a constitution in itself, but only a system of checks on the state.
The typical form in which rule-of-law liberalism appears is the parliamentary system. It contains aristocratic and monarchic elements and is in every respect a mixture of forms arising out of the liberal interest aimed at restricting the essentially political wherever it shows itself. It is the form created by the bourgeoisie to protect itself from the state—that is, an anti-political form, just as the liberal bourgeoisie is itself something apolitical.
It has always been striking how inconsistent the attitude of the liberal
But what is the point of the whole thing? The task of a parliament consists in integrating political unity—that is, constantly renewing the political unity of a mass of people heterogeneous in class, interests, culture, and religion. A certain uniformity—a homogeneity—is necessary for a people to achieve its political existence in a state. A state's institutions have the function of making this uniformity possible and reproducing it anew every day. In the state based on the liberal rule of law, with its parliamentarism, this involves a particular duty: integrating the bourgeoisie—that is, a segment of the population characterized by the two traits of property and educa-tion—into the then-existing monarchic state. It is now necessary to recognize the relativity of the attempt to achieve political unity of the people via the parliament. When the attempt was first made, the new bourgeois classes stood opposite the monarchic state and had to be integrated into it. In the meantime, however, the opponent—the monarchy—which drew its strength from another era, fell away. For this reason alone, the entire system had to run on idle.
The point of the system was to integrate the bourgeoisie into the monarchic state. This task it has fulfilled. Today, however, the situation is completely different. Today the issue is to integrate the proletariat, a propertyless and uneducated mass, into a political unity. For this task, which has scarcely yet been envisaged, only the apparatuses and machines serving the old task of integrating the educated bourgeoisie remain available, even today. The constitution is one such apparatus. Hence everything to us seems so artificial; thus this feeling of emptiness that one so easily has in face of the Weimar Constitution.
In Spengler's famous words, the Weimar Constitution is an English suit put on by the German Reich in 1919. In 1919 no more suitable form could be found. The Weimar Constitution has value only as a makeshift.
The democratic is emphasized sufficiently strongly in this constitution that the people has the opportunity to find a political form at all times—de-spite all restraints and safety valves and behind the barrier erected by the idea of the state under the liberal rule of law. The issue for constitutional development in the period to come will be saving democracy from being veiled by liberal elements. Only in this way, and not through liberal detachment on the issues of the form of the state and constitution, can the new situation created by the new significance of the proletariat be mastered politically and the political unity of the German citizenry recreated.
II
The fact that even in today's German democracy there is everywhere a refusal to accept the consequences of the democratic can be shown through many examples. Democracy today is democracy without a demos, without a people. The democratic principle demands that the people in its entirety decides and governs responsibly. But the methods with which today's democracy attempts to put the people's sovereignty into practice are not democratic, but liberal, methods. Today, the people's political decision comes into being through the individual secret ballot. This means that individuals are isolated during the only moment in which they bear public responsibility. In plebiscites and referenda, as well as in elections to parliament, the individual is locked in a voting booth and thus casts his vote. The people, however, is only the people assembled. Public opinion is not the sum of the private opinions of each individual. If the individual sits at home and listens to the radio, his opinion, even if it agrees word-for-word with the opinion of all, is not yet public opinion. The amazing thing is that nowhere in our democratic constitution does the assembled people appear; there are always only assembled representatives, the individual taken out of the mass. Where, in the text of the constitution and in the reality of the state based on the liberal rule of law does the people appear at all? Where is there room for an acclamation that can occur only if a public is created by the people assembled and present? There is no public without the people, and there is no people without a public. Where today, in the method of the secret ballot, is there a public, and where is the people?
Further: democracy is majority decision. Its point is that political issues are regulated according to the politically responsible beliefs of the majority of the people. Liberalism, however, aims specifically to destroy this political de-cision—to make it impossible. This is the purpose of the individual secret ballot. For the result of such a vote will always be the predominance of the politically uninterested over those who consciously shoulder political responsibility. Majority decision through the individual secret ballot necessarily tends to minimize political decision.
All Napoleonic plebiscites gained an overwhelming majority of yes votes. This was true in 1799, 1804, and 1814, but also in 1851 and 1852; following each coup, the people acclaimed the power thus created through their “yes.” Conversely, it has been found in Switzerland that new statutes generally are voted down. The reason for this is the same as in France—no one wants to vote against the status quo. The best known case is that of Swiss social insurance, which took decades to win approval. The people always says “no” when anything new is demanded. The majority of those voting in secret always tend to avoid making a political decision, or at least limit it to a minimum. In the case of the Napoleonic plebiscites, this did not constitute responsible assumption of a creative decision. The people was faced with a fait accompli; a decision had long since been made. There the “yes” meant only endorsement of what had already occurred. The Swiss citizens' “no” meant exactly the same thing: We don't want to be bothered with the decision, and prefer to leave things as they are. Something similar is evident in the way the German people are “deciding” today in the matter of the flag. Here the preference for neutral colors, for the colors of states, cities, etc., is striking. People avoid taking a position; they do not want to be burdened with these political issues. Secret ballots lead to a situation in which political issues are decided by all of these politically uninterested, politically irresponsible people. One could say that under the current method, the more a sector of the population tries to avoid political decision and responsibility, the greater becomes its political influence. It is not mere chance that a party emphasizing the economy holds the balance in parliament, and on the most crucial issues it happens that the decisive majority is made up of those who stay home and do not vote. This defect is fostered rather than curbed by the Weimar Constitution. On the issue of expropriation of the princes, for example, it would have been possible to produce great general popular endorsement for or against the princes. But Article 75 of the Weimar Constitution provides that a majority of those eligible to vote must take part in such a plebiscite.
[*] A 1926 plebiscite on expropriation as a result.–EDS.
The slogans circulated by various parties, as well as the final outcome of the campaign, remain fresh in our memories. Those who stayed home, who did not decide, determined the result. Today, that is the reality of the phrase “majority decides.”Every democracy requires complete homogeneity of its people. Only such a unity can assume political responsibility. If, as in the case of the state today, we are dealing with a people pieced together heterogeneously, the task becomes the integration of this mass into a unified whole. The true democratic method is not a method for integrating heterogeneous masses. The citizenry today, however, is divided in many ways—culturally, socially, by class, race, and religion. Thus a solution must be sought outside this democratic
Today this necessary political unity in Germany is being produced more improvisationally from without. The German Reich is primarily a unity for paying reparations; it appears as such from the outside. However, politically nothing is more necessary than to envision the task of integrating the German people into political unity from the inside. Theoretical reflection is necessary to achieve this, as well as a clear recognition of the dangers and contradictions of the current situation. It is the central task of integrating the proletariat into the new state that reveals the inadequacy of the methods of the state based on the liberal rule of law.
STATE ETHICS AND THE PLURALIST STATE
Carl Schmitt
Originally appeared as “Staatsethik und pluralistischer Staat,” in Kant-Studien, vol. 35 (Berlin: Pan-Verlag Kurt Metzner, 1930), 28–42.
I
The most widespread and thoroughly prevalent assessment of the state is best characterized today by the title of a much-quoted American essay (written in 1915 by Ernest Barker): “The Discredited State” [English in the original]. Even in very strong states whose strength in foreign policy and domestic order are not threatened—in the United States of America and England—the traditional concepts of the state have been strongly criticized since the War; the state's old claim to be the sovereign unity and whole has been shaken. In France, syndicalist theoreticians proclaimed as far back as 1907, “The state is dead.” For more than twenty years, there has been a body of legal and sociological literature that challenges the primacy of the state as well as the law, subordinating both to “society.” We can refer to Léon Duguit and Maxime Leroy as important and interesting modern legal scholars who weigh in on this issue. In Germany, the crisis only became apparent with the collapse of Bismarck's Reich, when concepts of state and government that had been considered unshakable vanished; since 1919, a broad literature of crisis has emerged here, for which it is enough to recall the title of a book by Alfred Weber: The Crisis of the European Idea of the State [Die Krisis des europäischen Staatsgedankens]. In addition, there is an extensive body of theoretical literature on the law of the state and international law that attempts
A blow to the state is always also a blow to state ethics. For all traditional ideas of state ethics share the fate of the concrete state, which they always presuppose, and fall into discredit with it. When “God on earth” falls from his throne and the empire of objective reason and morality becomes a magnum latrocinium [large band of robbers], the parties slaughter the mighty Leviathan and each cuts its bit of flesh from the body. What does “state ethics” mean then? The blow does not affect merely the state ethics of Hegel (which makes the state the bearer and creator of an ethic of its own), nor merely the idea of the stato etico (as fascist doctrine employs it); it is also a blow to the state ethics of Kant and liberal individualism. Although the state ethics of Kant and liberal individualism does not see the state as the subject and bearer of an autonomous ethics, but rather as bound to ethical norms, it has so far—with the exception of certain radical anarchists—always proceeded on the assumption that the state is a highest body and the decisive judge of external “mine and thine,” through which a merely normative and thus judgeless state of nature—a status justitia (more precisely, judice) vacuus in which each is his own judge—is overcome. Without the concept of the state as a transcendent unity and quantity, all practical outcomes of Kant's state ethics become contradictory and invalid. This is most clearly true for the doctrine of the right of resistance. Despite all his relativizing of the state using the laws of reason, Kant rejected a right of resistance against the state on the basis of the very thought of state unity.
II
More recent Anglo-Saxon theories of the state (of interest here are those of G.D.H. Cole and Harold I. Laski) call themselves “pluralist.” In this way, they aim not only to negate the state as the highest comprehensive unity, but above all to negate its ethical claim to be a different and higher sort of social relation than any of the many other associations in which people live. The state becomes a social group or association existing at best side-by-side with, but on no account above, the other associations. The ethical consequence and result of this is that the individual lives in unorganized simultaneity of numerous social duties and loyalties: in a religious community, economic associations such as unions, combines or other organizations, a political party, a club, cultural or social societies, the family and various other social groups. Everywhere he has a duty of loyalty and fidelity; everywhere ethics emerge: church ethics, professional ethics, union ethics, family ethics, association ethics, office and business ethics, etc. For all these complexes of duties—for the “plurality of loyalties”—there is no “hierarchy of duties,”
III
There are many good reasons, also of philosophical interest, for the strong impression this theory must make today. If pluralist social theorists such as Cole and Laski adhere mainly to the empirical, they do so as pragmatists and thereby remain consistent with their pragmatic philosophy, to which Laski expressly refers. He especially is philosophically interesting because—at least in intent and seemingly also in result—he transposes the pluralist world view of the philosophy of William James to the state; from the dissolution of the monist unity of the universe into a multiverse, he infers an argument for dissolving the political unity of the state pluralistically. To this extent, his view of the state can be added to the ranks of phenomena in intellectual history that I have termed “political theology.” The correspondence of theological and metaphysical world pictures [Weltbilder] with images of the state can be discerned everywhere in the history of human thought; the simplest example is the conceptual relationship between monarchy and monotheism, constitutionalism and deism. This relationship can be explained neither materialistically as mere “ideological superstructure,” reflex, or “reflection,” nor, on the other hand, idealistically or spiritually as “material substructure.”
A further element of interest to intellectual history is the fact that pluralist arguments are hardly absolutely new; rather, they are related to old theories of the philosophy of the state and thus part of a great tradition. However, Cole's social ethics justifies a state based on very modern union or guild socialism, and Laski's pluralist doctrine is also linked to the political goals and ideals of the trade union movement; French critics of state sovereignty likewise have a syndicalist federalism in mind. Thus at first glance, one has the impression one is encountering quite new, highly modern theories. Yet what is actually surprising about the theoretical situation—seen from the point of view of intellectual history—is the fact that arguments and viewpoints that otherwise served the social philosophers of the Roman Catholic or other churches or religious sects to relativize the state in regard to the church are now advanced in the interest of trade union or syndicalist socialism. One of Laski's favorite arguments is a reference to Bismarck's
But above all, the pluralist view corresponds to the actual empirical situation as it can be observed today in most industrialized countries. To this degree, pluralist theory is very modern and current. The state really does appear to be largely dependent on various social groups, sometimes as a victim, sometimes as the outcome of their agreements, an object of compromise between social and economic power groups, a conglomerate of heterogeneous factors, parties, interest groups, combines, unions, churches, etc. reaching understandings with one another. In the compromise of social powers, the state is weakened and relativized, and even becomes problematic, as it is difficult to determine what independent significance it retains. It seems to have become, if not practically the servant or instrument of a ruling class or party, then a mere product of the balance between various fighting groups—at best a pouvoir neutre et intermédiaire, a neutral mediator, a balancer of groups fighting one another, a sort of clearing office [English in the original], an arbitrator that refrains from any authoritative decision making, abstains entirely from keeping the social, economic, and religious conflicts under control, even ignores them and is not allowed to take official notice of them. It becomes an “agnostic state,” the stato agnostico ridiculed by fascist critique. Vis-à-vis such a construct, the ethical questions of fidelity and loyalty must be answered differently than for an unmistakable, overarching, and comprehensive unity. Thus today, in many states, the single individual feels himself to be, in fact, part of a plurality of ethical ties and is bound by religious communities, economic associations, cultural groups, and parties, without a recognized decision on the hierarchy of the many ties in case of conflict.
Such a condition of empirical reality of social life may not be ignored by philosophical discourse. For with a subject like the state, reference to empirical reality is undoubtedly a philosophical and moral argument. For any philosophical reflection on the state—whether individualist or collectivist—the value of the state certainly lies in its concrete reality, and a state that is not real cannot be the bearer or addressee of concrete ethical claims, duties, or feelings. Ethical relationships like fidelity and loyalty are, in the reality of concrete life, possible only in relation to concrete, existing people or structures, not in relation to constructions or fictions. Therefore, it cannot be a matter of indifference in the philosophy and ethics of the state
IV
Despite its accord with empirical perceptions and despite its great philosophical notability, such pluralism cannot be the last word on today's problem of state ethics. Seen from the point of view of intellectual history, such pluralist arguments, aimed at the state as an intrinsic unity, are hardly as new and modern as they at first appear if, under the strong impression of the rapid reordering of today's social life, we summarily recall that philosophers of the state from Plato to Hegel have for centuries seen the unity of the state as the highest value. In truth, there are many gradations among these philosophers, very strong criticism of monist extravagances, and many reservations in favor of independent social groups of the most varied kind. Aristotle's objections to Plato's exaggeration of political monism are familiar: The povan ei/civ li~, he says, must be a unity, mivnai, as well as the oija, ll ouj pav but not entirely, ajntw~ (Politics II.2.19 and in many other places in book II). Thomas Aquinas, whose monism is very pronounced if only because of his monotheism, and who sees the value of the state in its unity, and equates unity and peace (et ideo id ad quod tendit intentio multitudinem gubernantis est unitas sive pax, Summa Theol. Ia. Q. 103 Art. 3), says, following Aristotle, that unity driven to extremes destroys the state (maxima unitas destruit civitatem). In addition, for him, as for all philosophers of Catholicism, the church is an independent societas perfecta next to the state, which is also supposed to be a societas perfecta. This is a dualism that, like any abandonment of simple unity, offers many arguments for an expansion to pluralism. This peculiar attitude toward the state explains the intellectual alliance, at first sight rather odd, between the Roman Catholic Church and trade union federalism that appears in Laski. But at the same time, it proves that Laski's pluralist theory of the state requires greater philosophical depth if it is not to be affected by the obvious objection that the arguments he uses from the Catholic philosophy of the state originate in a
The very ambiguity of such an intellectual coalition shows that the pluralism of this modern social theory is unclear and in itself problematic. It is aimed polemically at existing state unity, which it attempts to relativize. At the same time, pluralist theorists generally speak an extremely individualistic language at decisive points in their argument. In particular, the response to the obvious and crucial question of who settles the unavoidable conflict between the various relationships of fidelity and loyalty is that the single individual himself settles it. This is a dual contradiction. First of all, it is a question of a social situation that involves the individual but cannot be changed by him at will; it is a matter of social ethics and not of the inner autonomy of the individual. It is true that it accords with an Anglo-Saxon mentality to respond so individualistically, entrusting the final decision to the individual, but by so doing a pluralist social ethics gives up the very thing that was interesting and valuable about it—namely, taking account of the concrete, empirical power of social groups and the empirical situation as determined by the individual's membership in many such social groups. Further, it is empirically incorrect that the individual, rather than a social group, decides. Perhaps there are some skillful and mobile individuals who achieve the trick of remaining free among the many powerful social groups, the way one jumps from one ice floe to the next. But this equilibrated sort of freedom cannot be required as the normal ethical duty of the mass of normal citizens. It is also the opposite of a decision of social conflicts. Empirically, when the unity of the state ceases, the various social groups as such would most likely make such decisions themselves, that is, based on their group interests. For the empirical individual, however, experience shows there is no other space for enjoying his freedom besides that which a strong state is able to guarantee him. Social pluralism, in contrast to state unity, means nothing more than leaving the conflict of social duties to decision by single groups. This thus means sovereignty of the social groups but not freedom and autonomy for the single individual. The second inconsistency lies in ethical individualism having its correlate in the concept of humanity. The empirical individual cannot be for himself enough, and he cannot decide the ethical conflicts of social life based on his singularity. For an individualist ethic the individual is valuable only as a human being; the crucial concept is thus humanity. In Laski, humanity really does appear as the highest authority—humanity as a whole; and by the word “society” Cole probably means, though it is not entirely clear, something similar to humanity. But that is the
As unclear as its pluralism is the theory's opponent, namely, the state as a unity that is supposed to be seized by the pluralism. From the above intimations from the history of philosophy, it can be gathered that political unity can never be understood as absolutely monistic and destructive of all other social groups, just as the “pluralists” sometimes present it for polemical purposes and as might at times be assumed according to the simplifying forms used by lawyers. When constitutional lawyers speak of the “omnipotence” of the sovereign—the king or the parliament—their baroquely exaggerated formulas should be understood as owing to the fact that in the state of the sixteenth to eighteenth centuries the issue was overcoming the pluralist chaos of the churches and estates. One makes one's task too easy if one adheres to such idioms. Even the absolutist prince of the seventeenth and eighteenth centuries was forced to respect divine and natural law and ensure the widest respect for traditional institutions and vested rights. State unity was always a unity from social pluralities. At various times and in various countries it was very different but always complex and, in a certain sense, intrinsically pluralist. A reference to this self-evident complexity can perhaps refute an extravagant monism but does not solve the problem of political unity. In addition, however, apart from these complexities, there exists a wide variety of possibilities for shaping political unity. There is unity from above (through command and power) and unity from below (out of the substantial homogeneity of a nation); unity through continuing agreements and compromises between social groups or through a balancing of these groups achieved in some other way; a unity from within and one based only on pressure from without; a more static and a dynamic unity that constantly functionally integrates itself; there is, finally, unity by power and unity by consensus. This last, simple contrast dominates the state ethics of pluralism, the ethical meaning of which is apparently to ethically accept only unity through consensus. Rightly so. But here the present problem begins. For every consensus, including a “free” one, is somehow motivated and produced. Power creates consensus, often a reasonable and ethically justified consensus; and conversely, consensus creates power, often an unreasonable and—despite the consensus—ethically reprehensible power. Viewed pragmatically and empirically, the question then is, Who has at his disposal the means for producing the “free” consensus of the masses—the economic, pedagogical, psychotechnical means of the most various sorts with the help of which, experience shows, a consensus can be produced. If the means are in the hands of social groups or single human beings and out of the state's control, then what is still officially called the “state” is at an end; the political power has become invisible and irresponsible, but the socio-ethical problem has not been solved with this statement.
The last and most fundamental reason for such unclarities and even inconsistencies lies in the fact that the notion of the state among pluralist theorists of the state is unclear. For the most part they think, purely polemically, of the remains of the old “absolutist” state of the seventeenth and eighteenth centuries. State thus means government apparatus, administrative machinery—in short, things that can, of course, be judged only instrumentally, that are in any case not objects of fidelity and loyalty and are rightly usurped by the various social groups in dividing the remainder among themselves. At the same time, however, even for those pluralists, the state is a political unity—constantly reintegrating itself out of these compromises among various social groups that can, as such, make specific ethical demands, even if merely the demand that these agreements and compromises be adhered to. That would be an ethics of pacta sunt servanda [agreements must be observed] even though a very problematic one. It is of course possible to limit the word “state” historically to the absolutist state of the seventeenth and eighteenth centuries. It is then easy today to combat it ethically. However, the problem is not the word, which has its own history and can go out of fashion, but the issue itself, the problem of a people's political unity. Here now, among pluralist theorists of the state as nearly everywhere, an error prevails that generally persists in uncritical unconsciousness—that the political signifies a specific substance, next to the substance of other “social associations”; that it represents a specific content besides religion, economy, language, culture, and law; and that, therefore, the political group can be understood as standing coordinately next to the other groups—to church, combine, union, nation, cultural and legal communities of all sorts. Political unity thus becomes a special, new substantial unity, joining other unities. Any debates and discussions on the nature of the state and the political will become confused as long as the widespread idea prevails that a political sphere with its own content exists side by side with other spheres. It then becomes easy to take the state as a political unity ad absurdam and thoroughly refute it. For what remains of the state as a political unity if we remove all other contents—religious, economic, cultural, etc.? If the political is nothing but the result of such subtraction then it is, in fact, exactly nil. But that is precisely the misunderstanding. The political more accurately describes the degree of intensity of a unity. Thus political unity can have and encompass various types of content. But it always describes the most intensive degree of unity, from which, therefore, the most intensive differentiation, grouping into friend and enemy, is determined. Political unity is the supreme unity, not because it allpowerfully dictates or levels all other unities, but because it decides and can, within itself, prevent all other opposing groups from dissociating to the point of extreme hostility (i.e., to the point of civil war). Where it exists, social conflict between individuals and social groups can be decided so that an order, that is, a normal situation, exists. The most intensive unity is either
V
The uncertainties and inconsistencies that can be demonstrated in the pluralist theory of state have their basis not in pluralism as such, but only in an incorrectly applied pluralism that is intrinsically correct and unavoidable in all problems of objective spirit. For the world of objective spirit is a pluralist world—pluralism of races and peoples, religions and cultures, languages and legal systems. It is not a question of denying this existing pluralism and violating it with universalism and monism, but rather of correctly placing pluralism.
The political world is also essentially pluralist. But the bearers of this pluralism are the political entities as such, that is, the states. In particular, the modern European states in the sixteenth and seventeenth centuries emerged from the dissolution of a universalism, and their concept of sovereignty was aimed polemically against both the universal claim of an imperial world-monarchy and the equally universal political claims of the papacy. It is an astonishing misunderstanding in intellectual history to wish to dissolve these plural political entities on the basis of a universal and monistic view, and to present this as pluralism—even, as Laski does, with reference to William James. In the system of “political theology” the pluralism of James's world view corresponds to the age of today's democratic national states, with their pluralism of peoples who are disposed towards the state on the basis of their nationhood. The monarchy, in its ideal tendency and argumentation, is rather universalist, because it must be from God if not justified democratically by the will of the people. Democracy, on the other hand, leads to recognition of each of the many peoples as a political unity. A philosopher of
The plurality of states—that is, the political entities of various peoples—is thus the genuine expression of pluralism, correctly understood. Universalist, monist concepts such as God, world, and humanity are supreme concepts and are enthroned far, far above that plurality of concrete reality. They retain their dignity as supreme concepts only so long as they stay in their supreme position. They immediately change their essence and mistake their meaning and task if they become involved in the brawl of political life and gain a false power and a false propinquity. I do not wish to go so far as to draw a parallel with Max Scheler's conception of spirit and to say of them that they are as powerless in regard to the concrete life of peoples and social groups as is the spirit in Scheler's metaphysics in regard to life and drives. But they are only regulative ideas with no direct or indirect power. Therein lies their value and their indispensability. There is certainly nothing human, nor any political life, without the idea of humanity. But this idea constitutes nothing—in any event, no distinguishable community. All peoples, all classes, all members of all religions, Christians and Saracens, capitalists and proletarians, the good and the evil, the just and the unjust, delinquents and judges, are human beings, and with the help of such a universal concept, any distinction can be negated and any concrete community ruptured. Such supreme ideas can and should temper and modify. But as soon as certain peoples and social groups, or even single individuals, use them in order to identify with them, the regulative idea is transformed into a terrible instrument of human lust for power. Even in the narrow frame of a state, which fellow citizens can survey, at least for a longer period of time, it is a dangerous deception for individual social groups to pursue their own interests in the name of the whole and to identify without justification with the state. In that case, the name of the state serves only political repression and legal deprivation. However, when the supreme and universal concepts, such as humanity, are exploited politically so that a single nation or a specific social organization identifies with them, the possibility of the most terrible expansion and murderous imperialism emerges. For this the name of humanity can be misused no less than the name of God, and a feeling could be spreading among many peoples and great masses, the authentic expression of which is contained in a modification of Proudhon's awful words: “Who says humanity wishes to deceive?”
In contrast to the political exploitation of such expansive totalities, it is less ambitious to accept and acknowledge the plurality of peoples united in states. In comparison with every such universalism encompassing the world and humanity, this is modest, yet justified by the immanent dimension of the social powers. It is true that each of the many political entities are, in the whole of the world and humanity, merely a bitoforder, merely a fragment. Yet it is the bit accessible to human action and community. Even though deception and lies are still possible in the state, as in all that is human, the fantastic dimensions of a universal deception encompassing the world and humanity are impossible here. In a spiritual world dominated by the law of pluralism, a bit of concrete order is more valuable than the empty generalities of a false totality. For it is an actual order, not a constructed and fictitious abstraction—a general situation of normal life in which concrete human beings and social groups can have concrete existence. It would be a false pluralism to play off world-encompassing entireties against the concrete reality of such plural orders; it is rational and sensible to permit peoples and states to exist after and next to each other, which represents the substance of human history.
States and peoples arise and disappear, and there are strong and weak peoples, healthy and sick, impressive and pitiful states. By reference to the weak, sick, and miserable, the strong and powerful are not refuted. Aristotle's sentence, which Rousseau used as a motto to introduce his treatise on human inequality, applies here: “Non in depravatis sed in his quae bene secundum naturam se habent considerandum est quid sit naturale.”
[*] Schmitt quotes the motto at the head of Rousseau's Discourse on the Origins and Foundations of Inequality among Men: “Not in corrupt things, but in those that are well ordered in accordance with nature, should one consider that which is natural.” Jean-Jacques Rousseau, The First and Second Discourses, ed. Roger D. Masters (New York: St. Martin's Press, 1964), 77. The motto is a Latin translation of a sentence from Aristotle's Politics 125 a 36–38 (Book 1, chap. V).—EDS.
But this also Makes clear to what degree political unity is a human deed and task, because it is the definitive unity to be accomplished within the framework of general pluralism, the bit of concrete order, the normal situation. Greater effort and spiritual achievement is necessary for this than for other common enterprises and social entities. In particular, it is easier to realize an economic “association” than a political entity, and it is understandable, even obvious, that in periods of exhaustion and distress people should lose interest in such struggles. The higher and more intensive the community, the higher the awareness and action by which it actualizes itself. All the greater the risk of failure. Thus the successful, consummate state is as magnificent as the state that has failed—morally and aesthetically—is offensive and wretched. One can easily point to the many failed attempts and the miserable caricatures of states that exist today. But obviously this is neither theoretically,This lecture was to provide only a brief glance at a moment in intellectual history. I would like to close with a brief summary, in the form of several theses.
State ethics exists in various different and even contradictory senses. State ethics can mean the subordination of the state to ethical norms and thus grounds above all the state's obligations. As is discernible especially in Kant's explanation of state ethics, this presupposes an existing state, the “presently existing legislature,” as Kant puts it, the existence of which is unproblematically taken for granted. In a concrete sociological sense, the subordination of the state to ethical norms naturally means nothing other than the control and mastery of those human beings and social groups that in concrete reality confront and challenge the concrete state in the name of those ethical norms. Further, state ethics can mean an ethics established by a state as an autonomous ethical subject, emanating from it, by which specific duties towards the state, going beyond non-resistance [English in the original], are created. This, too, presupposes an existing state. If the state now becomes a pluralist party state, the unity of the state can last only so long as the two or more parties agree in acknowledging common premises. Then, unity is grounded primarily in a constitution recognized by all parties, which must be absolutely respected as a common foundation. State ethics then becomes constitutional ethics. Depending on the substantiality, clarity, and authority of the constitution, a very effective unity may lie within it. But it is also possible that the constitution may dissipate into mere rules of the game and its ethics into a mere ethic of fair play [English in the original], and that finally, through the pluralist dissolution of the unity of the political whole, a point is reached where unity becomes nothing more than an agglomerate of changing agreements between heterogeneous groups. Constitutional ethics would then dissipate even further to the ethics of the principle pacta sunt servanda [agreements should be observed]. In every case of state ethics mentioned, the state is still a unity, as in the case of either the state's subordination to ethics or the state's designation as a superordinate ethical subject—a unity presupposed as concretely existing or an equally presupposed unity embodied in the common recognition of a constitutional foundation or of the rules of the game. But no state unity can be based solely on the principle pacta sunt servanda, for the single social groups, as contract-forming subjects, are then as such the decisive powers that make use of the contract and are bound to each other only through a contractual bond. They face each other as independent political powers, and what unity there is, is merely the result of an alliance that (like all alliances and contracts) is terminable. The contract then has only