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 romanticismthe 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 trajectorybetween 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 JudeoChristianity 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 redivision 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, humanrights 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 antiterrorism 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.