Working Draft: Do not Quote or Cite. Footnotes omitted in this version.

DARK GUARDIAN OF THE POLITICAL: CARL SCHMITT‟S CRYPTO-ETHICAL CRITIQUE OF THE LIBERAL INTERNATIONAL ORDER
Vik Kanwar*
INTRODUCTION In a recent book about Carl Schmitt, William E. Scheuerman remarks that “Schmitt provides a powerful warning about the potential dangers of new forms of imperialism that wrap themselves in the mantle of liberal universalism... At the same time, it is unclear how Schmitt‟s frontal attack on novel forms of liberal political and economic domination is consistent with his polemics against modern liberalism.”[i] Scheuerman observes that Schmitt‟s oft-expressed outrage at the potentially unlimited barbarism of liberal war-making would not make sense unless Schmitt implicitly shares some typically liberal, universalistic concerns about “the basic equality and value of all human life.”[ii] In my view, any assessment of Schmitt as a “closet liberal” fails to capture the peculiarity of Schmitt‟s perspective and the force of his critique. In Part I of this paper, I will analyze four dimensions of Schmitt‟s critique of liberalism, which I will label Denial, Discourse, Discretion, and Devastation. I will argue that these concerns are united by an idiosyncratic but consistent ethic which is irreducible to liberal values. In Part II, I will specifically apply these four dimensions of Schmitt‟s ethical critique to liberal formulations of international order. Of course, the work of Carl Schmitt is rarely invoked as an embodiment of ethical thought. Even for those who do not dismiss his writings with his worst personal excesses-- opportunism, hypocrisy, and xenophobia-Schmitt‟s writings are more associated with problems of power, politics, and order, than they are with ethics. Schmitt (1888-1985) was a conservative legal scholar in Germany from the Weimar era until his death in 1985.[iii] Identified with a skeptical tradition of international jurisprudence that could be said to include Machiavelli, Hobbes, Clausewitz, Donoso-Cortes, Weber, and Morgenthau, Schmitt‟s work was marked by an emphasis on the immanent necessity of authoritative decision in moments of crisis, a deep antagonism towards liberal justifications of
*

NYU LLM Candidate 2001.

2

V. KANWAR

[2001

law, and an insistence on the natural unity of interests and homogeneity of political Communities.[iv] After the Nazi assumption of power, Schmitt joined the party and, whatever his actual influence within the regime, became known as the Third Reich‟s "crown jurist.” Schmitt supported both fascist authoritarianism and later fascist imperialism as unambiguous expressions of political will and therefore direct attacks on the hypocrisy of liberal legalism. For Schmitt, the essential criterion of politics as a distinctive sphere of life is the Friend-Enemy distinction: identifying who‟s with you and who‟s against you. The cardinal sin of liberalism, then, was replacing struggle between friends and enemies with a series of unacceptable principles: (1) denial of its own political character; (2) recourse to perpetual discussion; (3) hypocritical claims to legalism and "neutrality” despite its radical indeterminacy; and finally (4) an ethical universalism that could lead to waging wars in the name of humanity itself. I argue that Schmitt‟s political concerns are bound up with an ethical orientation directly opposed to this suppression of politics. I trace this orientation to Max Weber‟s lecture "The Profession and Vocation of Politics” (1918), where the aging social theorist distinguished an "ethic of responsibility” (taking seriously the consequences of political action for those who will be subject to it) from an "ethic of conviction” (referring to ultimate values).[v] A young Schmitt attended this lecture, and its core concerns are echoed in Schmitt‟s own writings even sixty years later.[vi] I argue that permeating Schmitt‟s writings in particular is a version of the ethic of responsibility: an insistence on recognizing political realities and the consequences of actions. It might seem strange to locate in Schmitt anything resembling an "ethic of responsibility” rather than an "ethic of conviction.” Indeed, David Dyzenhaus has recently argued that in contrast to his contemporary Hans Kelsen, whose theories are seen to propose an ethic of responsibility, Schmitt "argues for substance over form, for an ethic of pure conviction and executive will.”[vii] Scheuerman, in an earlier book, rejects the notion that Schmitt holds an ethic of responsibility outright: In contrast [to Weber], Schmitt doubts that a consistently decisionist outlook leaves us any room for even a modest ethics of responsibility, and no signs of it can be detected in his concept of the political. His decisionism lacks even the barest echoes of the "old European rationalism,” which still haunted Weber.[viii] Others have argued that Schmitt‟s idea of the Volk or his commitment to existential "life and death struggle” resembles the irrationalism of Sorelian myth, again aligning him with an ethic of conviction.[ix] However,

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

3

all of these critiques profoundly misunderstand Weber‟s ethic of conviction as an irrational and pure conviction rather than a principled intention based on values, and simultaneously misunderstand the ethic of responsibility as pre-political and containing no substantive content. While it is true that an ethic of responsibility cannot be said to have an enumerated substantive political content, it is certainly tied to a particular orientation to politics; this is at minimum a demand for political accountability and a respect for the inherent danger of political action. It is this ethic that is constitutive of Schmitt‟s major themes, including his "friend-enemy” distinction, and his notion of political community. Following Weber, Schmitt expounds the inherent "possibility of violence” in politics; his rhetoric resembles nothing as much as a pre-liberal code of chivalry, taking seriously at once the welfare of friends and the ontological "otherness” and "equality” of enemies. For Schmitt, the Avocation” of politics is not so much a profession, but a "calling.” His "ethical critique” is not an elaborated system of value-orientations, but a sense of guardianship of the political dimension of life. Finally, I will argue that this ethic of responsibility is also constitutive of Schmitt‟s critique of liberal international order, which is tied closely to his rejection of universalism. I conclude by asking whether it is equally possible to extend this ethic of responsibility to the international sphere, to define obligations of the international lawyer, and moreover the international judge. Drawing on Schmitt, but opposing him, I will propose an inclusive ethic of responsibility tied to an anti-essentialist notion of political community, where political identities would be marked by contingency, and responsibility would always be treated as an empirical problem rather than as a given. Using a conveniently alliterative quartet, we will turn now to the four aspects of liberalism that Schmitt targets in his ethical critique: Denial, Discourse, Discretion, and Devastation. I. FOUR SCHMITTIAN CRITIQUES A. A Critique of Denial According to Schmitt, the singularly political distinction on which our actions and purposes are based is the distinction between Friend and Enemy.[x] Whereas morals deal in good and evil, aesthetics in beauty and ugliness, economics in costs and benefits, the space of politics is defined by the inclusion and exclusion of social Communities. Yet if Schmitt contends that the friend-enemy distinction is the essential criterion of all politics, how can he also claim that liberalism is "an anti-political form of politics?”

4

V. KANWAR

[2001

There are two related claims here that can be analytically separated. The first is that liberalism, like all politics, does in fact rest on the friend-enemy distinction, but that it denies its political character, instead basing its existence on abstract universalizing principles like liberty, equality, and human rights. The second claim is that by systematically denying its political character, it also systematically distorts its political character, leading to actual consequences: the dissolution of a life and death commitment, the impossibility of authoritative decisions, and the creation of isolated individuals. Liberals deny the inherently antagonistic character of politics and also the autonomy of the political from other spheres of life, such as morality and economics. The distinction between Friend and Enemy is moreover independent of the other distinctions, it can exist theoretically and empirically without referring to all those moral, aesthetic, economic, or other distinctions. Thus the political Enemy does not have to be morally evil, he does not have to be aesthetically displeasing; he does not have to appear as an economic competitor, it might even be advantageous to engage in commerce with him.[xi] By denying the factual alterity of the Enemy, liberalism minimizes or mediates political antagonisms, subordinates the distinctiveness of politics to "economics” and Amorality;” in an ideal liberal world, the only adversaries would be economic competitors and debating partners. In this context, the ethic of responsibility is a guard against the subjugation of the political to these other spheres of life. According to Weber, “anyone wishing to practice politics of any kind... is becoming, involved, I repeat, with the diabolical powers that lurk in all violence.”[xii] Thus Weber approaches engagement with the political as a matter of choice, best suited to those with a particularly pragmatic bearing. Schmitt radicalizes and generalizes this ethic, and finally he essentializes it; his defense of the autonomy of the political rests on the deeper claim that politics defines what it is to be a human being. Politics should take precedence over the other spheres of life because only politics involves the possibilities of life and death. Schmitt says, "Each participant is in a position to judge whether the adversary tends to negate his opponents way of life and therefore, must be repulsed or fought in order to preserve one‟s own form of existence.”[xiii] But by "each participant” he really means "each sovereign” acting in the interests of an identifiable collectivity. Schmitt envisions a Hobbesian version of the state, elaborating a conception of sovereignty as the factual power to "define, interpret, and implement,” to make decisions that concern the exception.[xiv] In most eras, only the state has been able to provide

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

5

decisions that are absolute, singular and final. Only by recognizing the friend-enemy distinction can a collectivity "soberly” decide what to do. "Friend” is coextensive with the sovereign state and the political community represented; Enemy is the Other, stranger, the alien, the public outsider which defines the boundaries of „our‟ community.[xv] Rather Schmitt‟s notion of political community is deeply related to Weber‟s description of "ethic of responsibility.” It is Hobbes‟ "mutual relation between protection and obedience,” seen through the view of politicians who hold a responsibility to an identifiable political community.[xvi] Of course this was tainted by his Nazi adventure, whose concept of political leadership was similarity of racial stock between leaders and followers. The denial of politics also directly leads to a false universalism. Liberalism was not the first to propose a kind of universalism, but may well be the first to banish enemies to invisibility. Weber writes: To see the problem in its current guise, replace the terms ‘native city’ or ‘Fatherland’ (which may not strike everyone as an unambiguous value at present) with the ‘future of socialism’ or even ‘the achievement of international peace’. The ‘salvation of the soul’ is endangered by each of these, whenever men strive to attain them by political activity, employing the means of violence and acting on the basis of an ethic of responsibility. Yet if the soul’s salvation is pursued in a war of faith fought purely out of an ethic of conviction, it may be damaged and discredited for generations to come, because responsibility for the consequences is lacking.[xvii] Following Weber, an ethic of responsibility begins with not denying the political, even if your soul is inevitably at stake. Under circumstances of liberal denial, those engaged in action remain unaware of the diabolical powers at work. Liberalism‟s denial of its political aspect leads to recourse to perpetual discussion, legalism, and asymmetrical discourse waging wars in the name of humanity itself. B. A Critique of Discourse Liberalism tends to replace the friend/enemy distinction with perpetual discussion.[xviii] What is called consensus is really an attempt to include the other until it is subsumed. Liberal discourse ethics are obsessed with arriving at a consensus on values, a common understanding of the good, replacing "objectivity” with a euphemistic "intersubjectivity” but still failing to overcome a crisis of pluralism. Liberal discourse is characterized above all by a universalizing tendency which belies its insistence on

6

V. KANWAR

[2001

procedure and participation. To Schmitt, the ceaseless elaboration of overlapping consensus on abstract moral values of good and evil is mooted by the overriding reality of common enemies or dangers. One possible consequence of this is that when the discussion ends, a stubborn dissenter will be destroyed by means of violence. Thus, liberal discussion supplements and masks actual and potential violence, coercion and asymmetrical power relations as well. Another possible consequence is the destruction of the political community for failing to recognize its enemies. An attempt to make politics safe will abandon the state to private interest in society.[xix] These are both consequences of ethical universalism trying to abolish difference under the guise of trying to recognize it. Schmitt perceives the elimination of discourse models of governing as important for guardianship of the political. More often than not, liberalism promotes its universality not through violence but through discourse. Liberal ideology and attitude is that politics should never get too serious; it should certainly never become deadly. This makes sense from the point of view of wanting to minimize the occurrence of exterminating disturbers, because constant bloodshed in the name of universal values would only serve to reveal the political. Of course Schmitt had always been hostile to liberal "discussion,” and did not have to anticipate the late modern forms of "discourse ethics” of Habermas, Benhabib, or others.[xx] It is clear where Schmitt stands on these discursive idealizations. Habermas‟s "ideal speech situation” (in which we communicate without distortion to discover a common "emancipator interest”) is the pinnacle of the view that in Crisis of Parliamentary Democracy, representative Guizot articulated and Schmitt despised: "through discussion the powers-that-be are obliged to seek truth in common.”[xxi] At this point Schmitt would likely turn our attention to the nuclear arsenals of the superpowers and suggest that is where the terms of any discussion of "truth in common” will be met. What if the liberal point of view is nothing as grand as replacing politics, but merely substituting violence with discourse whenever it can do so? This, for Schmitt, is still unacceptable. He takes Weber‟s warning that politics is always a means of violence very seriously. Discourse is ultimately a supplement to violence. Liberalism talks and talks until it wins. If not, it kills the disturber and resumes its claim of rightness. Kantians and Habermasians tend to focus on discourse ethics to the exclusion of discussions of the basis of violence at root of these discussions.[xxii] From a Schmittian point of view, liberal Aconsensus”is merely another name for “rightness” by a powerful and persuasive victor. The indignity of a part of

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

7

the “liberal war” is that it presumes moral rightness by virtue of winning. Comparing this indignity to that of a woman spurned, this, for Weber is “a profoundly unchivalrous attitude”; the victorious state “invents for [itself] a „legitimacy‟ that allows [i]t to lay claim to a „right‟ while attempting to burden [the loser] not only with misfortune but also with being in the wrong.” [xxiii] Like Weber, Schmitt abhors "pseudo-ethical feelings of being in the right.” This is what separates him from the implicit recognition of inherent, conflictual values in those who support ceaseless discussion. Conflict is not a means to perfect agreement, but the end of agreement. Finality is reached not by being overwhelmed by superior rightness or reason, but by reference to a sovereign decision. Schmitt‟s most extensive engagement with the "philosophy of values” is in Political Theology, where he conjures an almost Pyhrronian skepticism, drawing on the "epistemological companion” to Weber‟s "Politics as Vocation” lecture, called "Science as Vocation” or "The Vocation of Knowing.”[xxiv] It is Weber and not Schmitt who diagnoses the frightening limits of “rightness” and the need for authoritative decision. Drawing on Nietzsche, Weber succinctly foreshadows Schmitt‟s famous early themes, the autonomy of the political and the sovereign decision. Like Schmitt‟s friend/enemy distinction, which is autonomous from morals or aesthetics, Weber tells us that "something may be true although it is not beautiful and not holy and not good.”[xxv] Weber refers to a "polytheism” of warring gods, who are equally powerful and equally legitimate. To Weber, this signifies a differentiation of values so that the true and good and beautiful cannot be reduced to one another: [life] knows only of an unceasing struggle of these gods with one another... The ultimately possible attitudes toward life are irreconcilable, and hence their struggle can never be brought to a final conclusion, Thus it is necessary to make a decisive choice.[xxvi] C. A Critique of Discretion Schmitt argued that every instance of law is born ineluctably in a moment of disregard for the law: a moment of decision. Put more simply, every legal judgment contains within it an element of discretion. Along with the autonomy of the political, liberalism also denies the decisionistic element of law.[xxvii] Unlike his broad attacks on liberal denial and liberal discourse, Carl Schmitt‟s specific views on discretion in were more mutable over the years. He remained convinced in one sense or another that "all law is situational law.”[xxviii] This remained his empirical position; only his

8

V. KANWAR

[2001

prescriptions changed. The belief in the radical indeterminacy (and manipulability) of the law was treated at times with attempts to radicalize this indeterminacy and other times to tame and minimize it.[xxix] Which course Schmitt chose was usually associated with recognition of the factual power of a sovereign. On one hand, Schmitt consistently valorized deformalized decision-making procedures (discretion) in the hands of the sovereign state. On the other hand, he emphasized the radical indeterminacy of liberal law, including international law, harshly criticizing the use of open-ended, discretionary standards (indeterminacy). And he supports acting by the maxim of ethic of responsibility, which means that one must answer for the consequences of one‟s actions. Liberal legalism is marked by particular strategies to resist or repress this "decisionist essence.” (This is particularly true of international law, which has always been particularly vulnerable to the devastating attacks on its indeterminacy and discretion). A persistent maneuver in response to charges of indeterminacy has been to privilege a formal aspect of law against a threatening decisionist-element, to deny the existence of discretion altogether, or to institutionally separate law from discretion. Thus the project of institutionalizing international law has necessitated securing the rule against discretion, the norm against the exception, and the Rule of Law against equity.[xxx] Taken together, these maneuvers struck Schmitt as yet more liberal denial. Schmitt‟s tendency was to react by supporting the "opposite” position, to work towards absolute candor about discretion, or to bring discretion within the main-case of the law. This leads to a posture of radical "decisionism,” which is most often put in opposition to Kelsen‟s "normativism.” For Schmitt, factual power is prior to legal order. This privileges the decision over the norm. For Kelsen, legal order is a precondition to factual power. This privileges the norm over the decision. Schmitt emphasized the authoritative decision by the sovereign or someone with institutional competence.[xxxi] The indeterminacy of liberal law is not the same as the deformalized law of the decisionist. In both cases would a decision-maker be "ignoring” rules. Indeterminacy and discretion have taken a central role in Schmitt‟s writings since the beginning In his early monograph Law and Judgment, Schmitt addressed his precursors in the German Free Law Movement, whose open acknowledgment of the discretionary character of all decision making anticipated American legal realism, and Schmitt‟s own "indeterminacy thesis.” Free Law jurists challenged the formalist conception of the law as a closed and unified set of norms. Schmitt shared the movement‟s central claim that the unavailability of judicial discretion legitimizes the judges reliance on open ended super positive legal standards such as "the needs of commerce”.[xxxii] But

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

9

Schmitt says the movement still implicitly assumes that judges nonetheless subsume individual legal acts under a set of legal rules albeit a set of rules that has been substantially broadened. Formalism haunts legal thought; yet the addition of vague standards into the legal system necessarily robs the concepts of legal subsumption of any substance: a vague standard such as the needs of commerce permits a panoply of alternative and potentially contradictory answers to a particular case. Free law Jurists point to a purely discretionary moment inherent in judicial action. But its defenders ultimately prove unable to face the full implications of their discovery and ultimately revert to the least defensible myth, a moderate version of the idea of legal subsumption despite the fact that their innovations rob the concept of any real substance. Schmitt in Law and Judgment goes on to ask: when is a judicial decision a correct decision? The free law school correctly stated that a legal decision is always characterized a "moment of indifference in reference to the content of law" an element of discretion characterizes judicial decision making.[xxxiii] problem is how is the political community to be spared the ills of discretionary judiciary. The young Schmitt is worried about arbitrariness and subjectivism. He argues that indeterminacy at the level of laws manifest structure need not generate judicial chaos. Other sources are available to the judicial actor in assuring legal "determinacy.” "Determinacy” is now relocated to the relationship between the individual judge and his peers: AA judicial decision is correct today when it can be assumed that another judge would have decided in the same way.” Judges can no longer seek recourse to the letter of the law or precedent to generate predictability and regularity instead appeal to colleagues engage in thought experiment in asking whether another expertly trained jurists would have acted in exactly the same manner.[xxxiv] I This characterized Schmitt‟s move towards "institutionalism.” If considered in the liberal tradition, there is a deceptively Dworkinian (or even Rawlsian) ring to Schmitt‟s institutionalism. The difference here is the decisions are not based on an "ideal judge” or "principles,” but are open to political practice. In fact, institutionalism considers judges to be explicitly political actors who can decide on the basis of conscience or political beliefs, presuming a homogenous community would agree or accept such a judgment. "Institutional micro-decisionism where the satisfaction of social needs is no longer guaranteed by enforceable legal rights, but by arbitrary measures, by administrative acts of mercy which acknowledge the good behavior of those subject to their power.”[xxxv] In the 1930s Schmitt‟s political theory shifted from decisionism to a system of "concrete order” institutionalism relying on the existence of political orders making candid orders of

10

V. KANWAR

[2001

discretion, relying only on their embeddedness in civil society for legitimacy.[xxxvi] (This is In institutional micro-decisionism, satisfaction of social needs is no longer guaranteed by enforceable legal rights, but by arbitrary measures, by administrative acts of mercy which acknowledge the good behavior of those subject to their power.”[xxxvii]A In his ultimate theoretical work on the subject of law and discretion ("On Three Types of Legal Thought”), Schmitt combined institutionalism, normativism, and decisionism, as three aspects of any legal system.[xxxviii] Schmitt‟s programs for harnessing or radicalizing indeterminacy also shifted with his political fortunes and commitments, yet he always suggested that some degree of determinacy was possible, but unlike liberals who looked to the "Rule of Law,” Schmitt tended to look for the "Rule of Men” (concrete situations of sovereignty to reach authoritative judgments). Schmitt‟s focus on "the moment” use of the expression "moment” in his account of the role of "indifference in reference to the content” of the law (Inhaltlicher Indifferenz) the term "moment” might suggest that indeterminacy is nothing but one among a number of distinct moments constitutive of legal experience and maybe that law can for the most part be rendered determinate and predictable. In turn dictatorial power takes a central role within Schmitt‟s theory. Dictatorship negates the liberal denial of discretion: it is simply an open expression of the discretionary power of every interpretation and application of the law, dictatorship and "determinacy” go hand and hand, insofar as the dictator determines the law.[xxxix] This is simply one variant of a very consistent role Schmitt gives to the sovereign in law and politics. Indeterminacy is a seemingly insurmountable obstacle when it comes to international law and politics.[xl] Schmitt‟s notion of concrete orders, can also be thought of as a routinization of equity in institutions, leading into a pure instrumentalisation. It might seem that an emphasis on the vocation and professions of international law could instill a candid and political institution to decide concrete cases. Yet with the Schmittian claim that there is no global civil society for a proper vocation to arise. Insofar as "international” law is from the beginning a cosmopolitan or solidarist project, Schmitt, like Hobbes before him, is seen as denying the very possibility of international law. I will argue later in this paper that it is necessary to reject the foundational claim of a contained political culture or civil society for a vocation to carry out a legitimate activity. D. A Critique of Devastation What I call here Schmitt‟s "critique of liberal devastation” is a particular

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

11

polemic Schmitt returned to throughout his career. This was his story about the ultimate consequences of liberalism, which was tied closely to a rejection of universality, and the ethic of responsibility towards one‟s political community and a disposition of chivalry towards the other. Schmitt‟s last writings are strikingly consistent with the concerns first developed in Concept of the Political and remained a consistent strain of his polemics and theory until a few years before his death. After years flirting with the idea of a post-statist perspective of regional blocs, or Monroe Doctrine -type spheres of influence (the Grossraum), Schmitt returned to his central theme of the dangers of liberal-universalism in an article called "The Legal World Revolution” (1978). Written in the new context if the United Nations and the Cold War, here Schmitt writes against the idea of a worldstate and picks apart actually-existing liberal internationalism in the process. The day world politics comes to earth, it will be transformed into a world police power. That is a dubious progress!”(80). We come full circle connected to the ultimate consequences of liberal denial, neutralization, and universalization. Speculative fiction articulates twice 50 years apart in strikingly similar terms. We are This is about universalization of liberalism, this creates the asymmetrical effects, and insurmountable discrimination. Not seeing other as equal enemy just foe. relationship to ethic of responsibility. The denial of the use of violence in the political is very bad according to Weber leads to dire consequences for all involved. The greatest danger of liberal universalism is that it will claim to speak in the name of universal humanity. In such a case all those by whom one is opposed must automatically be seen as speaking against humanity and hence only merit to be exterminated. Devastating critique of cosmopolitan project of international law. "Legal World Revolution” 1976 (published in the formerly leftist journal Telos in 1987), Schmitt wrote: Humanity as such as a whole has no enemies. Everyone belongs to humanity... "Humanity” thus becomes an asymmetrical counter-concept. If he discriminates within humanity and thereby denies the quality of being human to a disturber or destroyer, then the negatively valued person becomes an unperson, and his life is no longer of the highest value: it becomes worthless and must be destroyed. Concepts such as "human being” thus contain the possibility of the deepest inequality and become thereby "asymmetrical."[xli] Schmitt wants to remove from international politics the possibility of justifying one‟s actions on the basis of universal moral principles. Wars of domination to establish what is good once and for all, will to end politics

12

V. KANWAR

[2001

and eliminate all difference. There is no natural limit to the atrocities one might commit to make the world safe for liberalism. This fully echoes a statement Schmitt first made (writing in a different context) in The Concept of the Political more than forty years earlier: Humanity as such cannot wage war because it has no enemy, at least not on this planet. The concept of humanity excludes the concept of the enemy, because the enemy does not cease to be a human being" and hence there is no specific differentiation in that concept. That wars are waged in the name of humanity is not a contradiction of this simple truth; quite the contrary, it has an especially intensive political meaning. When a state fights its political enemy in the mane of humanity, it is not [truly] a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its political opponent. At the expense of its opponent, it tries to identify itself with humanity in the same way as one can misuse peace, justice, progress, and civilization in order to claim these as one‟s own and to deny the same to the enemy.[xlii] The greatest sin of liberalism is its universalism. For Schmitt, morality is contextual and making choices in life and death situations is the essence of politics and identity.[xliii] Therefore, disregard for particularity can be devastating. If humanity is merely a polemical concept, then certainly Liberal Universalism (and state or inter-state "collective security” under this rubric) is dangerous, but so is another kind of absolutism: this is myth in Sorel‟s sense, an existential certainty. In his essay on the "Ethic of State and Pluralistic State," Schmitt implicitly rejects the "ethic of conviction.” Both Concept of the Political and Legal World Revolution reiterate the peculiar chivalry and concern of Weber‟s "Vocation of Politics”: A nation will forgive damage to its interests, but not injury to its honor, and certainly not when this is done in a spirit of priggish self-righteousness. Every new document which may emerge decades afterwards will stir up the undignified squabble, all the hatred and anger, once again, whereas the war ought at least to be buried morally when it comes to an end.[xliv] In my view, Weber‟s distinction between an "ethic of responsibility” and an "ethic of conviction” corresponds to the kind of treatment Schmitt advocates for an "enemy” versus a Afoe.” An enemy (inimicus) is an adversary to be treated as an equal, whose claims may have some validity and who at least should be understood; the foe (hostis) is an implacable opponent to be annihilated without further ado.[xlv] Devastation is the double of the assumption of "rightness.” Like Weber, Schmitt abhors

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

13

"pseudo-ethical feelings of being in the right.” He confronts Weber‟s "radical polytheism of values,” and adopt his position that "attitudes toward life are irreconcilable, and hence their struggle can never be brought to a final conclusion” and "thus it is necessary to make a decisive choice.” He fashions a particular ethic of responsibility to guide this relativism. Conflict is not a means to perfect agreement, but the end of agreement. Finality is reached not by being overwhelmed by superior rightness or reason, but by reference to a sovereign decision.[xlvi] This was for Schmitt a speculative fiction, but it is surprisingly prescient in describing the post-Cold War state of affairs, with the triumph of liberalism, the Western powers led by the United States have had more occasion to come together against "disturbers” like Yugoslavia and Iraq. Actual "world state” denies its political character, but it is deeply political and even dangerous. Tied very closely to problem of international order, which I will take up in Part II. II. THE ETHIC OF RESPONSIBILITY AND INTERNATIONAL ORDER The four aspects of Schmitt‟s critique of liberalism that I identify in Part I come together in his critique of liberal “world order.”I will argue that the liberal ideas of international law, or a global institutionalism is antithetical to Schmitt‟s thought. Rejection of liberalism was connected closely to a rejection of universality, As we have seen, Schmitt opposes all forms of universalism and most forms of pluralism, because a liberal universalism can only be pseudo-universalism and sham-pluralism. The ideology of "humanity” is asymmetrical and always favors the supremacy of the few states who hold power.[xlvii] Here too the choices he makes are informed by the ethic of responsibility and a guardianship of the political. We have seen a hypothetical world state would be objectionable for its totalization of humanity and potential devastation, but also for more mundane reasons of political theory: Were a world state to embrace the entire globe and humanity, then it would be no political entity and could only loosely be called a state, If, in fact, all humanity and the entire world were to become a unified entity based exclusively on economics and on technically regulating traffic, then it would not be more of a social entity than a social entity if tenants in a tenement house, customers purchasing gas from the same utility company, or passengers traveling on the same bus.[xlviii] Given that law is merely the exercise of decision by a sovereign, it could only mean decisions made at the state level. "In crucial moments, every great power knows that it needs to remain the sovereign judge in

14

V. KANWAR

[2001

those cases affecting its political interests.” Thus the concept or rhetoric of "world government” or “world law” masks asymmetrical relations between states whose situational calculus is actually opposed to actual equality or loss of sovereignty. "Notwithstanding the worldwide proliferation of modern ideologies of progress, today all approaches to a legal world revolution lead to the state... The trend towards "supra-states “ was limited to the three Grossraume (regional hegemonic powers): the United States, the USSR, and China. (Schmitt at 85: "The problem of a legal world revolution ends in a whole series of national and state revolutions... Progress toward a legal world revolution has no parallel in the political unity of Europe or even in a European Revolution.” "In order to create the political unity of humanity, a legal world revolution would have to create what Hauriou and Perroux have called "patriotism of the species.” Governing humanity is problematic on many levels, ranging from the polemical-philosophical : "Every human being among the billions is one and a piece of humanity . Every day thousands dies and thousands more are born. Every day humanity as a whole shows a different face: it is "never together.” What right have the people of today to dictate a constitution for tomorrow?” [xlix] to the polemical-practical: AA transfer of constituent power from nation to humanity is hardly conceivable. The earth might appear much smaller today than in France of 1789. Nevertheless, new technology not only serves as centralization but also resistance to it. The United nations serves not only unity but also the status quo of its numerous sovereign members. Is it possible to imagine a General Assembly or even a meeting of the Security Council acting in a manner similar to that night of August 4, 1789, when the ruling classes solemnly renounced their feudal privileges?... Should the superpowers renounce their hegemonic superiority and its foundation?... Do they open their archives and present their confidential files to a world tribunal seeking to try the former enemies of humanity?”[l] In reality liberals undermine state sovereignty by subjecting the vast majority of states to a tiny group of leviathans whose hegemony is all the more secure because liberal international law renders it invisible, masks novel forms of political, economic exploitation, dream of regulating political regulations between states in accordance with general norms and courts capable of applying those norms. According to Schmitt, in both cases would a decision-maker be "ignoring” rules, but only the liberal would be denying it. One gets the sense that hypothetical world state is no

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

15

longer as unlikely an aspiration as it was in 1930. Drawing on Reinhardt Koselleck, Schmitt draws out this "asymmetry” in a series of semantic distinctions, rounding out an argument he had begun almost half a century earlier in Concept of the Political. He demonstrates how through a series of negative judgments, the adversary has increasingly been "polemically discriminated as unequal: Greek and barbarian, Christian and heathen and finally human and inhuman” or "superman and subhuman.” This asymmetry ends in the ultimate denial, creating only "foes” or "disturbers.” Schmitt ends with a deathbed scene of a 19th century dictator. Asked by his spiritual advisor: "Do you forgive you enemies?” he answered with a clear conscience: AI have no enemies; I have killed them all.” Empirically, the question of governance at the international level complicates Schmitt‟s championing of the "exception” as a fact of sovereignty. Just as earlier liberal theorists sought to replace state of nature within the domestic arena with the systematic rule of law so do modern liberals aspire to overcome state of nature between nations by subjecting international conflicts to a rational and universally binding system of enforceable legal norms. In Schmitt‟s view the proliferation of liberal legal devices on the international scene merely provides a new set of weapons in these states, the great powers that are best situated to exploit them, the quest for a codified law on the international scene is bound to fail, this view international law is unavoidably and inherently a highly partisan system of Apolitical justice.” Schmitt emphasizes the basically indeterminate character of liberal law in order discredit the rule of law. He does the same to attack liberal international law because its core like domestic is inherently open ended in nature, the idea of a binding international rule of law is necessarily an illusion, albeit a potentially dangerous illusion suited to the needs of those political interest best capable of exploiting the radical indeterminacy of the law.[li] The real question is always who will be able to take advantage of the decisionist essence of liberal international law. Who decides a study of political power is important. Rhetoric serves as ideological front for a system that is fundamentally decisionistic. Schmitt suggests United States would decide.[lii] This analysis begins as early as 1929 in his Rhineland monograph, criticizing the two faces of Wilsonian idealism, which based itself in the lofty ambitions of Western jurisprudence (but as demonstrated in the Allied occupation of the Rhineland region after WWI), was actually characterized by a situational decisionism backed up by almost unlimited power.[liii] Thus, against the background of grand idealist and cosmopolitan attempts to institutionalize relationships among states, Schmitt viewed

16

V. KANWAR

[2001

international law as indeterminate and open to opportunistic whims of the great powers.[liv] This critique was not a call to rationalize or improve the system, but to undermine it.[lv] Schmitt would continue to thematize this liberal tendency to combine vague clauses of international law which best suited the discretionary interpretations of the powerful states, justifying modern forms of imperialism. Further, in Schmitt‟s view, international tribunals rest on a liberal fiction of the existence of an "international political community.” Thus Schmitt conflates the problem of indeterminacy with that of questionable authority. Though Schmitt specifically attacks open-ended legal standards, he considers all international law, even the most formal and codified law, to be indeterminate. This rests on his assertion that you cannot institutionalize relationships between heterogeneous and antagonistic political entities. Thus even if an "International Court of Concrete Orders” was to deal with disputes exactly the way Schmitt would prescribe for a municipal system, he wouldn‟t accept its sovereignty or even its legitimacy. There is still the fundamental problem of requiring a homogeneous “political culture,” which is the most irrational aspect of his theory. Finally, the critique of "world order” rests on an ethic of responsibility. Weber reflected on the on the kinds of hubris and indignities liberal states inherited from the just war tradition. This is the quasi-ethics of "being right” that Weber refers to.

"If the soul‟s salvation is pursued in a war of faith fought purely out of an ethic of conviction, it may be damaged and discredited for generations to come, because responsibility for the consequences is lacking. In such circumstances those engaged in action remain unaware of the diabolical powers at work. They are inexorable, bringing about the consequences of their actions, including consequences for their inner being, to which they will fall helpless if they remain blind to them.”[lvi] Schmitt takes the ethic of responsibility to mean, in part, that extermination of the enemy is fine as long as you don‟t also exterminate them in the name of universal humanity. Yet Schmitt claims his construction of "enemy,” a qualified sort of alterity is not to deny their humanity. It is a peculiar position that has little support in the liberal tradition: "If you are to destroy them, do not add the indignity of designating the enemy as wrong or inhuman.” Yet Schmitt simultaneously distances himself from Machiavellian justifications for fraud, stealth, and deceit.

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

17

III. A CRITIQUE OF THE CRITIQUE: DISTURBING THE DISTURBER I have tried in this paper to respond to a particular kind of claim-- that Carl Schmitt implicitly shares some typically liberal, universalistic values about equality and rights-- with a counter-argument. Though we might recognize ourselves (insofar as the essentialized Awe” believe equality and rights) in Schmitt‟s critique, but a Schmittian perspective is driven by values that are extraneous to the main traditions of liberalism: a simultaneous demand for politicization and a respect for the inherent danger of political action. It is true that Schmitt adapted his ethical perspectives from an arch-liberal, Max Weber, but it is also true that Weber never expounded what political perspectives might arise from his vocational ethics, leaving Schmitt to expound the inherent "possibility of violence” which interpenetrated his "friend-enemy” distinction and his notion of political community. Out of a peculiar intellectual syncretism and the intensity of world events, Schmitt managed to cobble together a genuinely illiberal critique: his rhetoric resembles nothing as much as a pre-liberal code of chivalry. Yet, even before liberalism, this ethical critique has no precedent in combining the values of probity and chivalry with antipathy to rightness.”[lvii] If I have restored to Schmitt some of the coherence of his critique, then I have done half of what I set out to do. However, it is my own perspective while Schmitt‟s writings are conceptually (and even "ethically”) coherent, they are also often empirically hollow. Most fundamentally, there is no essential reason that State identity and political culture should be so identified. Schmitt‟s homogenized notion of political culture has as little meaning as "international civil society.” For an intellectual of Schmitt‟s caliber, there is a kind of complacency and laziness in the concept of the “friend.” Schmitt was correct in identifying a liberal tendency towards universality, but he never predicted that there would be "multiple universalisms” operating on a plane of global pluralism.[lviii] It is precisely the interdependency of political agonists, conflictual politics of political parties that seem to mark a political community-in-action. The postulate of homogeneity turns out to be empirically hollow.[lix]And Schmitt has little to say about the pluralistic society even though as a factual matter the single-nation community has been continually and irretrievably undermined. And yet politics persists in the form of pragmatic arrangements designed to govern pluralistic societies. Considering his own

18

V. KANWAR

[2001

emphasis on facticity, Schmitt never faced up to constructive antiessentialist[lx] notions that political community insofar as it is political must be understood as contingent. Indeed, while we must remain alert that notions of freedom, rights, choice, empowerment, and consent through benevolent correctives and declarations of humanity sometimes act to facilitate newer (even never-contemplated) forms of subjugation, it is doubtful any of Schmitt‟s prescriptions can help us cope with the complexity of identifications. There are, of course, ways to reject liberal universalism and still imagine a politicized and effective international law. Along those lines, I will end with a gesture towards two critics who take as much from Schmitt as Schmitt did from Weber, and who transform his concepts by their anti-essentialist understanding of the political. Laclau and Mouffe in Hegemony and Socialist Strategy (1985) have rejected essentializing state or class identity lead to totalitarianism, but they do not reject politics and conflict, or even community.[lxi] Laclau and Mouffe's vision of hegemony cannot support universalism or totalitarianism; a view to community and politics must be marked by contingency and concrete "decisions” of an entirely different order. It is not enough to say, as Schmitt did, that the ultimate criterion of "substantial homogeneity” may be left open. If politicization is indeed the opposite of neutrality, a radical insistence on heterogeneity and contingency. According to a Laclauian outlook, antagonisms are the basis of politics and at the same time, politics keeps the social structure open. Dispositions are shaped by the immanent necessity of a field. Their actions are not "calculated decisions,” but rather "opportunities seized.”[lxii] The social reality thus contains a multitude of fractured subject identities, all heterogeneous and constantly shifting. If the various subject positions and the diverse antagonisms and points of rupture constitute a diversity and not a diversification, it is clear that they cannot be led back to a point from which they could all be embraced and explained by a single discourse.” Laclau and Mouffe also speak of "sedimenting” and "stability “: these are the bases of an inclusive ethics of responsibility. They insist on politicization as insistently as Weber and Schmitt, while they treat the question of Apolitical community” as an empirical problem to be rediscovered every day.

204-Jun-101]

DARK GUARDIAN OF THE POLITICAL

19

A POSTSCRIPT ON TRANSLATED SOURCES This paper (or at least my sense of it) benefitted greatly from my being able to preview complete but uncorrected drafts of two Schmitt translations in English Nomos of the Earth (Forthcoming Telos Press, NY 2001, trans. G.L. Ulmen and Paul Piccone) and On the Three Types of Legal Thought (Forthcoming Greenwood Press. Westport, CT 2002, trans G.L Ulmen). Though I was forced to read them at lightning speed, these translations helped me immeasurably in putting this modest paper in perspective of what are pot entially Schmitt’s two most important contributions to contemporary debate. I thank my esteemed adversary Paul Piccone at Telos Press, who (in a moment of extraordinary chivalry or justifiable braggadocio) allowed me the opportunity to view these impressive translations. I respectfully stipulated that I would not quote from these works and while I am disappointed I could not incorporate them into the present work, I am confident that the English-language Schmitt scholarship will be much richer very shortly with this Summer’s publication of Nomos, a massive undertaking which includes notes and commentary by Schmitt unavailable in the German and Italian editions. I do quote from Chapter 2 of Gary Ulmen ’s translation of Nomos, which has already been published as "Land Appropriation of a New World” in Telos 109 (Fall 1996). All other passages from untranslated works are cited to secondary sources as well as the German original, which I was usually able to refer to directly for clarification and context, but did not attempt to translate myself.

Sign up to vote on this title
UsefulNot useful