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The Life and Legacy of Carl Schmitt

The posthumous reception of the work of Carl


Schmitt in Germany, the United States, and France
has unfolded in an atmosphere of scandal. One could
say that the controversies surrounding this figure
now form a fixture of a small ideological field
whose contours were established in the Heidegger
affair. Although commentary on Schmitt is not
entirely structured by this script, there are
typically three stances that academics and
journalists have assumed in the exchanges
occasioned by Schmitt’s arrival on the intellectual
scene: those who attack him on grounds of the
negligible value of his work and Nazi allegiances;
those who defend him for having articulated
persuasive criticisms of liberalism, and for never
having truly been a Nazi; finally, a more assorted
set of those who regard him as a political
theologian or ontologist highlighting the most
extreme, fundamental situations of politics. I
argue that all three of these stances are
impediments to a comprehensive assessment of his
work and its political orientation. The premise of
my study is that the only way to identify the
concepts and positions of Carl Schmitt is to
reconstruct them in the course of their
development, as the problems he was addressing in
individual writings are not otherwise easily
identifiable. There are three reasons for this
state of affairs: a) Schmitt’s writings often
belong to politico-intellectual formations that
ceased to be intelligible after the last world war,
and are difficult to situate in the academic matrix
that emerged thereafter; b) there are numerous
abrupt shifts in his relation to the Weimar
Republic, the Catholic Church and fascism that make
any fixed classification of his political
allegiances impossible; c) it is difficult to
assess the significance of his adherence to
National Socialism within his wider development: in
what respects a culmination, to what degree an
aberrant episode?
Schmitt’s writings reframe some of the central
problems of political and legal order from the
early modern era to our times. The historical
context of his career is the inter-war erosion of
classical European sovereignty and the emergence of
de-centered systems of conflict between states,
classes and parties. The situation of the German
Reich in the aftermath of military defeat and civil
war was an extreme manifestation of this crisis of
the state form. In attempting to take stock of this
situation, Schmitt appropriated legal and political
theory motifs forged in emergency situations from
the early modern civil and religious wars to the
revolutions and counter-revolutions of the 19th
century. Through a critical analysis and
contextualization of his published writings from
1919 to 1947, I lay out the evolution of his
diagnosis of the inter-war crisis of domestic,
European and world political orders, as well as the
succession of his proposed solutions. I believe
this study is the first to capture this crucial
strategic dimension of Schmitt’s thought as it took
shape in successive conjunctures, enabling a more
objective- if no less critical- appraisal of the
reasons and degree of his adherence to the Nazi
regime.
Schmitt was acutely aware of the specificity of
his own intellectual practice as a response to this
situation. He maintained that the age of systematic
political thought was over. The classical form of
theory based on the territorial monopoly of
legitimate violence, a sharp distinction between
state and society, and an international order based
on sovereignty was no longer equipped to bring
interstitial sites of politicization into focus.
Inherited definitions, and oppositions had to
probed in the light of the anomalies and antinomies
they were generating. The result is that the
terminology he employed was in an ongoing state of
flux, and his theory presents itself as an ensemble
of deconstructions, problems, and striking
epigrams, formulated to establish provisional
categories attuned to the extreme, exceptional
situations of politics. It is not surprising then
that Schmitt’s work presents some unusually
difficult interpretive challenges.
Before attempting to demonstrate what Schmitt
has to offer that justifies this labor of
reconstruction, I would like to point out that one
advantage of his mode of analysis was its
underdetermined relation to any particular
political allegiances, including his own. It was in
this gap between his diagnoses and his positions
that Schmitt’s notorious opportunism and
`decisionism’ came into play. Certainly he was man
of the Right in the time of the breakdown of
traditional European conservatism; i.e. in the
mini-epoch of fascism. But he was also a figure of
extraordinarily open intellectual sympathies, and
drew on liberal and Marxist traditions of thought
at his pleasure, relishing the art of taking from
enemies. There is something to be learned about the
relationship of partisanship to intellectual
integrity from this practice. A passage from
Antonio Gramsci’s Prison Notebooks on Machiavelli
conveys its lesson in the form of a methodological
criteria for a political theory whose aim is to
interpret and change the world.

`This position in which Machiavelli found himself politically is repeated


today for the philosophy of praxis…to develop a theory and technique of
politics… which might be useful for both sides in the struggle.’

In what follows I would like to present a


condensed account of the major findings of my study
organized around a sample of his writings, as this
could be useful for those would like to determine
whether there is more to Carl Schmitt than might be
apparent from the polemics that organize the
contemporary reception of his thought.
Schmitt came into his own as a thinker during
the passage from monarchy to republic. It is
important to keep in mind that he had not shared in
the widespread enthusiasm for the war, nor in the
open right wing hostility to the new constitutional
dispensation that had issued from defeat. Until the
last years of Weimar, he was a lukewarm supporter
of the Catholic Centre party whose partnership with
the Social-Democrats was one of the pillars of the
Republic. His first post-war work, Political
Romaticism, is a direct attack on the luminaries of
German political romanticism- the central
intellectual tradition of the national conservative
tradition, avidly renewed by Weimar’s so called
`conservative revolutionaries’. Schmitt branded its
fundamental outlook as a non-committal irony that
looks at the world as a spectacle of aesthetic
experiences. From the very beginning of his Weimar
career, he separated himself from any larger
formation of right-wing intellectuals, of Catholics
as well. He appeared as a strange singleton on the
politico-intellectual map.
Schmitt’s next published work `Dictatorship’ is
the first of his more directly political
interventions in which a contemporary development
is placed into a larger historical context. The
topic of this study is the Roman republican office
of the dictator, a figure commissioned by the
Senate to act without legal constraints for the
duration of a political crisis. The bulk of the
narrative is an intellectual history of conceptions
of this office from the 16th century religious wars
to the modern class struggle- i.e. from Bodin to
the Paris Commune, with a preface in which the
Bolshevik idea of the dictatorship of the
proletariat is taken into consideration. The
theoretical development he tracks is the transition
from a conception of dictatorship as a limited
authorization to act outside of the constitutional
order so as to defend it- `commissarial
dictatorship’, to an illimitable revolutionary
authorization coming from a formless multitude to
change the whole constitution- `sovereign
dictatorship.’ This is the first opposition with
which Schmitt grappled with the problem of the
tenuous status of legal limits on executive
emergency powers (as set down in Article 48.2) as
well as on the revolutionary constitutive power of
the people in a democracy.
`Political Theology’ consists of four chapters
on the concept of sovereignty. The concept is
defined as an indicator of the locus of a
transgressive provision that enables the suspension
of normal legal procedure: `Sovereign is he who
decides in the state of exception.’ The term has
obviously been redefined: according to Schmitt it
should be seen as a `limit concept’ rather than as
a stable attribute of autonomous statehood. This
latter conception was the product of a positivist
attempt to evade the problem of who decides on the
interpretation of a legal rule when interpretive
controversy prevents the normal procedural
resolution. For Schmitt, the consequences of the
concept of sovereignty reverberated from problems
of constitutional law to a vision of history
interrupted by tide-turning decisions conceived in
analogy to miracles. `All consequential political
concepts are secularized theological concepts.’ The
last chapter presents a sympathetic account of the
19th Spanish Catholic counter-revolutionary Donoso
Cortes, who was the first in that tradition to
recognize the impossibility of restoring the Old
Regime, and called for a unalloyed dictatorship of
the sword to save the church, property and family
from the looming specter of atheist communism in an
eschatologically conceived civil war. Donoso’s
polemics against the liberal `debating classes’
stemmed from his conviction that there could be no
middle ground in this struggle.
Schmitt’s next work `Roman Catholicism and
Political Form’ represents a strikingly different
account of the situation of Catholicism in the age
of nation-states and revolution. In it Schmitt
makes the claim that the Church’s historical role
has been the European-wide arbitration of the
conflicts of nations and classes. In opposition to
the Manichean decisionism of Donoso, the Church is
here portrayed as a moderating complex of
opposites, preserving the dignity of majestic
political form above the fray of modern economics
and politics. Nonetheless, a decisive battle is
looming: the work ends with a call for an alliance
of the Church with liberal nationalism to defend
Western Europe against the Bolshevik menace from
the East.
The abrupt shift of perspective between
Political Theology and Roman Catholicims and
Political Form is emblematic. Schmitt’s
idiosyncratic relation to Catholicism was
characterized by an oscillation that would come to
define his entire politico-intellectual trajectory-
between a radical decisionism and a more moderate
conception of political form as the integration of
opposites. In considering his relation to
Catholicism, two other things should be kept in
mind: a) He was hostile to both the natural law
traditions of the Church, as well as to the
political Romanticism of the right wing catholic
literati. There was no wider intellectual current
of Catholicism to which he belonged. b) His failure
to have his first marriage annulled by the Church
led him to seek a civil annulment which in turn led
to his excommunication; ensuing personal
antipathies towards the `celibate bureaucracy’
began to intersect with the gradual anti-Catholic
drift of his political views as he increasingly
began to see the Roman Church in Hobbesian terms as
the originator of a fateful conflict between
secular and spiritual realms. Moreover by the late
era Weimar he was beginning to perceive the
Catholic Centre Party as one of the main props of a
dysfunctional Weimar corporatism.
The last of Schmitt’s early Weimar texts has
been translated into English under the title `The
Crisis of Liberal Democracy’, although this is
arguably a serious mistranslation, given that one
of its main arguments is that liberalism and
democracy are opposed doctrines. Schmitt’s
pessimistic diagnosis of the prospects for
parliamentary rule is based on his claim that
`government by discussion’ presupposed a
enlightened public sphere that has been dissolved
by the advent of mass markets, mass democracy, and
the propaganda/communication machinery that drives
them. The liberal case for parliamentary government
depends upon the assumption that public discussion
in open chambers under the watchful eyes of a free
press leads to the passage of general laws
safeguarding the general interests of civil
society. Schmitt argued that the case for
parliamentary government relies on this
precondition of discursive rationality as the
guiding principle of non-coercive governance.
Contemporary liberals often seek to substitute this
with a justification based on its alleged
practicality as a politically neutral system of
achieving consensus through corporatist
negotiations between interest groups. Schmitt
pointed out that any number of non-parliamentary
institutions could perform this role, as well, if
not better. He argued that after the war, the 19th
century alliance of liberalism and democracy was
breaking up, with hegemony passing to ideological
and interest based mass parties antithetical to the
norms of government by discussion. The ensuing
decline of the proceduralist conception rational
legislation arising out of debate was part of a
wider crisis of legal form, as the regulatory
primacy of general norms lost ground to the more
flexible methods of executive crisis management.
Although liberalism was in crisis, democracy’s more
elastic principle of legitimacy was adapting well
to the ascending modes of mobilizing consent.
Schmitt claimed that democratic legitimacy arose
from an imaginary relationship of identity between
rulers and ruled that continually posed the problem
of the identity and boundaries of the demos. Modern
constitutions would have to come to terms with the
pervasively plebiscitary nature of demotic will
formation. Schmitt suggested that in this passage
from parliament to plebiscite, this problem would
come to be resolved in the form of irrationalist
myths, in the Sorelian sense. There were two great
integral myths of 20th century mass politics that
were in contention: the fascist myth of the nation
and the Bolshevik myth of the world proletariat.
Schmitt was an avid admirer of Mussolini, and
considered the March on Rome to be a powerful
demonstration of the superiority of nationalism
over socialism as a mobilizing identity. Schmitt’s
relationship to fascism is complex, even in the
20’s: until the very end of the Weimar Republic he
thought that independent working class
organizations were a permanent feature of more
developed capitalist societies, and that the
attempt to destroy them would trigger off a civil
war. Backward Italy was freer to experiment with
post-parliamentary state forms. In any event,
admiration for Mussolini did not translate into any
support for his local imitators until they came to
power in 1933.
The political orientation of Schmitt’s writings
from the mid-20’s reflects the relative
stabilization of this period, as the conservative
Right entered into government and became
temporarily reconciled to the Weimar system. Some
of Schmitt’s most interesting writings from these
years focus on the precarious sovereignty of the
German state in the post-wart international order.
The Versailles Treaty and the League of Nations
were attempts to legally freeze the post-war status
quo, subjecting the German Reich to a new regime of
fiscal and military supervision by the
‘international community.’ Schmitt argued that
this degradation of the sovereignty principle in
international public law was generating
indeterminacies and anomalies in the concept of
war. Previously understood as a legitimate
instrument of settlement between states, this
symmetrical conception was being replaced by a
discriminatory standard by which military
deployment was designated as being, from one side,
an internationally authorized police action, but,
for the other, a potential violation of the
international treaty obligations. A new world order
emerged in which the remaining Great Powers
preserved their full prerogatives while defeated
rogue states were subject to invasive,
destabilizing qualifications of their nominal
sovereignty in the form of sanctions, embargos,
international supervision of their foreign debt,
and punitive interventions for non-compliance. As
a consequence, older distinctions between war and
peace, belligerents and neutrals, and soldiers and
non-combatants were beginning to dissolve, and the
resulting international disorder was reflected in
the increasingly contentious application of these
terms. The post-war European landscape was now
part of a wider world system whose center was
moving across the Atlantic. The United States
exercised its vast authority over European affairs
as a creditor of power, operating indirectly
through institutions it controlled but did not
belong to, like the League of Nations. Schmitt
maintained that the core European countries would
have to form a federal union in order to prevent
the further hollowing out of their ability to
determine their economic affairs and geo-political
orientation. Germany was drifting into a highly
volatile American-centered world economy, without
any political safeguards to protect it from
meltdowns and hard landings.
In the last years of the Weimar Republic,
Schmitt acted as a legal advisor to a series of
conservative governments operating with
increasingly tenuous parliamentary support, and
reliant on controversial constitutional provisions
enabling emergency rule by presidential decree. He
diagnosed the erosion of the boundary between
parliamentary laws and executive measures as a
symptom of the structural crisis of the division of
power schema that defined the European Rechtstaat.
As the bottom began to fall out of the German
economy with the onset of the world depression,
both Nazis and Communists scored enormous gains at
the polls, relegating the remaining parties and
their allied organizations to a demoralizing
compliance with extremely unpopular, rigid
austerity programs that catastrophically undermined
the legitimacy of the Republic.
Schmitt’s expansive interpretation of emergency
powers played a notable role in the implementation
of a program of cutbacks and wage reduction. This
was designed to restore the fiscal situation of the
German Reich and curb the Social-Democrats and
their welfare programs entrenched in the federal
state of Prussia. Schmitt and his associates in the
Finance Ministry maintained that while there was no
going back to pre-war laissez-faire economics, the
major post-war settlements protecting unions and
salaried officials upon which the whole political
order rested, prevented any disciplined focus on
longer-term goals of promoting capital investment
and restoring fiscal stability. Increasingly, late
Weimar conservative governments began to undermine
the balance of power that underpinned the
constitution. Although they were locked into an
agenda that was strengthening the hands of the
Nazis, as the human fall-out from their policies
mounted, they also simultaneously sought to hold
them at bay, hoping they would eventually become
house-trained junior partners in a support cast of
right-wing parties. It should be said on Schmitt’s
behalf that he seemed somewhat more aware of the
dangers of trying to co-opt the Nazis than many
around him. In any event, this period witnessed the
highpoint of his influence on the actual course of
policy.
Schmitt did not immediately rally to the Nazis
upon their assumption to power, having been closely
associated with the cliques that had brought Hitler
into government, and were now being rapidly
displaced by him. After a few months on the
sidelines though, it was clear that the new regime
was firmly in the saddle and Schmitt decided to
join the party. This was not merely passive,
opportunistic obedience to the new authorities.
Schmitt had come to the conclusion that the era of
the Rechtstaat was coming to an end and sought to
be the intellectual architect of a new form of
jurisprudence in which the precepts of political
expedience could expedite the improvisational
suspension and interpretation of legal norms. Much
of the old legal order based on private property
was still nominally in effect, but now required a
flexible and dynamic reinterpretation. In this way,
the new regime might be able to resolve the problem
of the pluralistic disintegration of the state in
the era of mass politics, by moving beyond its
legal-bureaucratic form to a new order based on
untrammeled political decisions. Briefly, he
exercised considerable intellectual authority over
the drastically purged courts and legal faculties
of the new order. In their first years in power,
the Nazis welcomed the support of well known
scholars, and Schmitt was amply rewarded for his
writings on behalf of the new rulers: a
professorship at the University of Berlin,
editorship of the main Nazi legal journal and
induction into the honorific Prussian State
Council. But it was not too long before such
figures found themselves increasingly unable to
compete in the ruthless Darwinian environment
inside the Party and outflanked by resentful
competitors better able to demonstrate their
adherence to ideological orthodoxies.
Schmittians often claim that his eventual
defeat in these internecine struggles demonstrates
his intellectual distance from the mainstream of
Nazi ideology. But while this is true, it
certainly was not for any lack of effort on his
part to close the gap. His strategy was to present
the policies of the new order in terms of his own
theories. While previously Schmitt had rejected
race as category, and continued to reject the
biological anti-semitism of the Nazis, to defend
his position against those who attacked him on this
score, Schmitt aggressively counter-attacked and
articulated his own virulent take on the so-called
Jewish Question. Some of what he wrote in this vein
is simply reprehensible; some of it, however, is
arguably both reprehensible and intellectually
fascinating. Even after he was forced to resign
from his leading positions within the party’s legal
organizations, he continued to write on the
subject.
Perhaps his most compelling and disturbing work
on the theme is The Leviathan in the Political
Theory of Thomas Hobbes: The Meaning and Failure of
a Symbol. According to Schmitt, Hobbes reason for
entitling his work after the sea monster from the
Book of Job, has to be understood in terms of his
`struggle against political theology’. The latter
was now interpreted to mean the Judeo-Christian
division between secular and religious authorities,
and the claim that the latter were subject only to
higher powers. Schmitt explicitly cited Leo
Strauss’ book on Hobbes to this effect. According
to Schmitt this division established the mold for
the later division between state and society, and
the attempted emancipation of the latter from all
coercive rule. The secular political order that
Hobbes sought to have established aimed to
neutralize the perennial challenges that Judeo-
Christianity raises to the legitimacy of earthly
sovereigns. Leviathan was a purely secular order
presented in the form of a mythic figure who
subdues the proud and rebellious. Evoking Leviathan
as an emblem of a new project of pacification was a
response to the political theologies of the English
Revolution and early modern religious wars that
justified rebellion against ungodly rulers. Hobbes’
objective was to impose a closed territorial
monopoly of the state form on a commercial society
emancipated and set into perpetual motion by its
turn towards the limitless world oceans. Land and
sea, state and society, political and religious are
the overlapping and interchangeable binaries that
structure this work. For Schmitt, Hobbes Leviathan
would eventually reveal itself to be merely a
terrifying façade behind which stood a fragile
contractual construction unable to bridle the
unleashed forces of emancipated society. Schmitt
suggested that diasporic jewry was an agency of
fermentation in this ongoing movement of
emancipation. Hobbes’ symbol was not up to `the
severity and malice of this struggle.’
Schmitt considered the many parallels between
the contemporary fate of European Jewry and the
expulsion and murderous cleansing of the
assimilated Marranos of early modern Spain. For
Schmitt the `Jewish Question’ had stalked the
European state form from its beginnings and was
reappearing in extremis in the era of its crisis
and supercession. He wrote nothing in these twelve
dark years that would suggest any appreciation of
the enormity of the Judeocide.
Although Schmitt had been barred from writing
on the domestic legal-political developments, his
work on the international situation chronicled the
emergence of a new world order based on the re-
division of the planet into continental security
blocs dominated by guardian powers in the aftermath
of the collapse of the British centered world
economy of the 19th century. The old opposition of
land and sea that had formed the elemental basis of
an international system based on sharply bounded
European states and their colonies in an open world
economy, was being overtaken by a new pluriverse of
Empires-America, Germany, and Japan- in which
control of the skies and airwaves would become the
decisive factor in delimiting great autarkic
spheres of influence- a new nomos of the earth.
After a brief stint of internment as a
potential defendant at Nuremburg, Schmitt sought to
reestablish himself in the intellectual life of the
early Federal Republic. Although barred from
teaching, he managed to get on with a subsidy
provided by a group of sympathetic businessmen, and
exercised an enormous, if often clandestine
influence on a generation of scholars in many
disciplines, in many countries, and across the
political spectrum. In 1950 he published Ex
Captivitate Salus a set of reflections on his role
in the catastrophes of the last forty years. He
placed himself in the lineage of Old Europeans
searching for political expedients to hold back the
mutiny of the masses. Comparing himself to
Tocqueville, he claimed that he had only sought to
preserve the legacies of Christian political
civilization in the Age of the Decline of the West,
and like that great Frenchman, he too would be
remembered as a theorist of the experience of
defeat.
What is still living in the legacy of this
figue? If we were to attempt to assess the
actuality of Schmitt today we would want to
consider what in our historical situation bears
comparison to his times. The first thing that
should be noted is the dramatic increase of
uncertainty concerning the viability of some of the
main fixtures of the world status quo: American
military and financial primacy, the Atlantic
Alliance, the nuclear weapons monopoly, human-
rights ideology, the dollar as the world’s reserve
currency, and neo-liberal `globalization’. Early
post-Cold War predictions of a liberal-democratic
End of History and an irresistible advance of the
world-market at the expense of nation-states seemed
to have established a narrative for understanding
the most important historical trends of the coming
25 years, at least. All of a sudden some of the
main fixtures of the scene seem to have entered
into solution: the military credibility of American
Empire on the line for the first time in 25 years
as asymmetrical partisan war rages on the Tigris;
looming economic turbulence stemming from the
unsustainable American debts and account deficits
that keep the world economy afloat; the growing
strains on the anti-proliferation accords; an
unexpected sharpening of tensions between America
and core western Europe; the onset of a possibly
disruptive, crisis of the dollar regime; the
controversial switch from `human rights’ to anti-
terrorism as the ideological dominant of foreign
policy; and the slowly mounting opposition to
`Washington Consensus’ economic policy. For better
or worse, the actuality of Carl Schmitt will soon
become more apparent.