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