Working Draft: Do not Quote or Cite.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 de-
formalized 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 world-
state 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 anti-

essentialist[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.