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Philosophy and Social Criticism

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Liberalism, legal revolution ª The Author(s) 2020
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DOI: 10.1177/0191453720974722
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Benjamin A. Schupmann
Yale-NUS College, Singapore

Abstract
This article reflects on William E Scheuerman’s The End of Law and the value of the liberal rule of
law. It puts Scheuerman’s concerns about Schmitt’s attacks on the liberal rule of law in dialogue
with Schmitt’s theory of ‘legal revolution’. It argues that, although Schmitt was neither a liberal nor
a democrat, his work on legal revolution can help liberals respond to populist attacks on liberal
constitutional essentials.

Keywords
Carl Schmitt, democracy, legal revolution, liberalism, militant democracy, populism, rule of law

When he first wrote The End of Law in 1999, William E Scheuerman did so to halt a
growing stream of English-language scholarship misrepresenting the relationship
between Schmitt’s juridical thought and his Nazism and using his ideas to develop
alternatives to liberalism.1 In the second edition, Scheuerman writes that he failed: that
stream became a river and Schmitt became a household name. But this outcome only
means that Scheuerman’s work is more relevant today. The End of Law is both an
essential starting point for understanding Schmitt and an important corrective against
naı̈ve appropriations.
Schmitt’s diagnosis of problems of the liberal rule of law is his main attraction.
Scheuerman distils Schmitt’s argument to the following: The liberal rule of law is
unideal. It cannot actually be normalized, because every legal decision ultimately rests
on an indeterminate moment of will.2 Even constitutions are riddled with such moments,
which allow that arbitrary will to burst through its rational-legal structure.3 Despite
liberal arguments to the contrary, rational-legal legitimacy ‘is essentially a question of
power’.4 Parliament is not a rational deliberative system, it is a façade masking how the

Corresponding author:
Benjamin A. Schupmann, Yale-NUS College, 16 College Avenue West #01-220, Singapore 138527, Singapore.
Email: ben.schupmann@yale-nus.edu.sg
2 Philosophy and Social Criticism XX(X)

powerful use the law to advance their own interests.5 Finally, the state cannot actually
guarantee classical liberal autonomy, factions compete to use the state to impose their
narrow worldviews.6 Schmitt’s diagnoses propel readers towards his conclusions: If the
problem of legal indeterminacy reveals that the liberal rule of law only masks raw power,
why not unshackle the state and law from this façade entirely? Could not a postliberal
regime realize a more just and equitable public order? Why not empower the executive to
enact the people’s will directly? In short, why not abandon the liberal rule of law?
However tempting these conclusions may appear, The End of Law proves that they are
no solution to problems of the liberal rule of law. Predictable state action, guaranteed by
the liberal rule of law, is an essential element of individual freedom. Without the liberal
rule of law, both predictability and freedom are lost. A life with that kind of insecurity
would be nasty, brutish and short.
Schmitt’s own experience from 1934 to 1936 demonstrates the value of the liberal
rule of law.7 For starters, the 1934 ‘Night of Long Knives’ illustrates exactly what a state
uncoupled from the rule of law looks like. In his legal analysis, Schmitt did not need to
do much to fit Hitler’s extralegal assassination of his enemies into his Weimar theories.
He characterized Hitler’s actions as the epitome of (postliberal) legality, writing that the
decision on how to defend the Volk against threats lays entirely within the Führer’s
jurisdiction.8 Despite his fawning and rationalization of its murders, in 1936 the Nazi
regime suddenly turned on Schmitt.9 As it threatened him, Schmitt pined for the security
of the liberal rule of law.10 Fortunately for Schmitt, it lost interest in him just as quickly.
But he had helped to lay the groundwork for the murder of millions.
This experience is a microcosm of the true lesson of Carl Schmitt. Reflecting on it
should leave us with ‘a sense of the indispensable virtues of the rule of law as well as
legitimate unease about its status and prospects today’.11 However unideal the rule of
law may be, its absence produces a far worse state of insecurity and terror.
The End of Law can give the impression that Carl Schmitt is just an object lesson for
liberal democrats in how not to defend liberal values. To be sure, Schmitt is that. But
Schmitt has something more to offer to liberals. Because of his hostility towards liberal
democracy, Schmitt confronted head on a contradiction at the heart of liberal democracy,
one its defenders are sometimes reluctant to face: a latent tension between democracy
and liberalism. As he studied Weimar politics, Schmitt realized that its democratic legal
procedures could be turned against the liberal rule of law and liberal democracy itself.
Weimar extremists hoped to exploit the constitutional design of liberal democracy in
order to revolutionize it legally. Today, enemies of liberal democracy are once again
exploiting legal revolution. Liberals can learn from Schmitt’s diagnosis of legal revo-
lution in order to understand better how to defend liberal constitutionalism. In what
follows, I sketch how Schmitt’s thought might help liberals.
This latent contradiction between democracy and liberalism originates in how modern
liberal democracies produce legitimate law. Weimar’s democratic proceduralists, such
as Thoma and Kelsen, argued that legitimate law is produced ‘immanently’: when law is
enacted according to a positive legal procedure, reflecting the will of a numerical
majority or supermajority of citizens.12 They believed that, to treat democracy non-
trivially, no political values or candidates could be excluded from the democratic process
a priori. As long as a law met those procedural requirements, then it would be both legal
Schupmann 3

and legitimate. As long as it met those requirements, its content was irrelevant. In
principle, any value could become law and any candidate could hold office. Schmitt
characterized proceduralism as the commitment to the ‘equal chance’ for every citizen to
see their values enacted into law.13
This commitment culminated in the supremacy of the amendment clause. Legitimate
constitutional law is also produced immanently. Any political value could be written into
the constitution, as long as the positive procedural requirements for constitutional
amendment were adhered to. Similarly, any article could be abrogated. For the Weimar
Constitution, Article 76 enabled two-thirds of parliamentarians to amend any and every
article of the constitution.
Schmitt was neither a liberal nor a democrat. Perhaps because of that opposition, he
recognized that, when supreme, democratic legal procedures can be used to alter and
abrogate the laws that institutionalize essential features of liberal democracy. The con-
stitutional supremacy of democratic legal change made revolution a legal possibility. In
this way, democracy can be turned against liberal constitutionalism, both by constitu-
tional amendment and also through democratically elected politicians’ use of the polit-
ical premium of their legal possession of state power.14 An extremist party could use the
democratic electoral process to obtain the authority to use the state apparatus and impose
its values legally. All it needed to do was churn up enough support.
Schmitt believed that legal revolution exposed a legitimation dilemma at the heart of
liberal democracy. Either legitimacy really is determined through democratic legal
procedures, culminating in the supremacy of the amendment clause. If so, then it would
indeed be both legal and legitimate to transform a liberal democratic state, article by
article, into an illiberal authoritarian state – as long as doing so was popular and adhered
to the legal procedures in effect. Or the principles of liberal constitutionalism are an
essential precondition for political legitimacy. If so, the articles enacting liberal consti-
tutionalism must be supreme and guaranteed against both amendment and against oth-
erwise legal acts by democratically elected officials. But this means that the will of
voters may be denied legitimately when it seeks to revolutionize constitutional
essentials.
Weighing in on the dilemma, Schmitt argued that a constitution, by definition, aims to
maintain a stable public order and political identity over time.15 It could not coherently
provide for its own revolution.16 Even if legally possible, it would not be legitimate to
use amendment procedures to convert a liberal democracy, article by article, into a
totalitarian state.
Between his state and constitutional theory and his conservative disdain for democ-
racy, Schmitt thought it better to take legal revolution off the table wherever possible. He
theorized defences against legal revolution, against its direct form through constitutional
amendment and its indirect form through the political premium of the legal possession of
state power. Schmitt argued that constitutional essentials, those articles that enact its
identity, must be guaranteed against legal change.17 Amendment of constitutional essen-
tials must be legally circumscribed. Schmitt also argued that parties openly hostile to that
identity, its political enemies, could legitimately be excluded from democratic pro-
cesses.18 Otherwise, if elected to hold office, they could undermine constitutional essen-
tials without resorting to constitutional amendment. For example, by taking advantage of
4 Philosophy and Social Criticism XX(X)

legal indeterminacy to rule by will, by using departmental appointments to dismantle the

separation of powers or by weaponizing emergency powers.
Schmitt was not motivated by any belief in the intrinsic value of liberal democracy.
His diagnosis of liberal democracy’s weaknesses is Janus-faced: available to both its
friends and enemies. Although Schmitt’s work on legal revolution cannot be treated
uncritically, there are two pressing reasons for liberal democrats to engage with it today.
The first is populism. Populism is the great challenge threatening the liberal rule of
law today. Although Schmitt wrote in a different context, the method of legal revolution
that he identified almost a century ago is the same method that populists are using to
backslide liberal democratic constitutions right now. Democratically elected leaders of
states such as Hungary, Poland, India and the United States are using both constitutional
amendment and the legal possession of state power to undermine the liberal rule of law
and other constitutional essentials. Schmitt’s diagnosis of and defences against legal
revolution may be a starting point to consider ways to secure liberal democracy against
populists and other illiberal movements.
The second involves those defences. For better or for worse, the ‘militant democratic’
features of Germany’s Basic Law, including its eternity clause and party bans, are
indebted to Schmitt.19 The defences against legal revolution that Schmitt theorized exist
in democratic constitutions around the world.20 Yet their legitimacy has been chal-
lenged. They seem formally undemocratic. And they seem to expand the legal indeter-
minacy and discretionary powers that Scheuerman rightly worries about. Democrats
view these defences with trepidation because it is unclear whether they can be reconciled
with democracy. Normative theories of militant democracy justify them as a defence of
democracy (hence militant democracy).21 Schmitt did not. He theorized them as a
defence against legal revolution, against democracy. By returning to their origins in
Schmitt’s thought, it is possible to reconsider both their legitimacy and their limits.
As Scheuerman shows us, serious study of Schmitt teaches the indispensability of
liberal constitutional essentials. But legal indeterminacy is not the only threat to the
liberal rule of law. Today, both populism and militant democracy challenge liberal
democracy. They reveal tensions and contradictions among our most important values.
Schmitt’s enmity towards liberal democracy gave him a different perspective on those
challenges. Although his work raises fundamental questions about liberal constitutional
legitimacy and design, those questions can help us better protect it. They include: How
can constitutions guarantee the liberal rule of law and what does that mean for demo-
cratic practices? What are the limits of legitimate democratic legal change and how can
those limits be enforced constitutionally? And which is more essential to liberal dem-
ocratic legitimacy: democratic legal change or liberal constitutionalism?

ORCID iD
Benjamin A. Schupmann https://orcid.org/0000-0001-7686-150X

Notes
1. William E. Scheuerman, The End of Law: Carl Schmitt in the Twenty-First Century (Lanham,
Maryland: Rowman & Littlefield International Ltd, 2019), ix.
2. Scheuerman, The End of Law, 35.
Schupmann 5

3. Scheuerman, The End of Law, 81–82.

4. Scheuerman, The End of Law, 79.
5. Scheuerman, The End of Law, 55.
6. Scheuerman, The End of Law, 109–11.
7. Scheuerman, The End of Law, 142ff.
8. Carl Schmitt, “Der Führer schützt das Recht,” Deutsche Juristen-Zeitung 15, no. 39 (1934):
947.
9. Reinhard Mehring, Carl Schmitt: A Biography (Malden: Polity, 2014), 346ff.
10. Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a
Political Symbol (Chicago: University of Chicago Press, 2008).
11. Scheuerman, The End of Law, 334.
12. Richard Thoma, “The Reich as Democracy,” in Weimar: A Jurisprudence of Crisis, eds.
Arthur J. Jacobson and Bernhard Schlink (Berkeley: University of California Press, 2002),
157–170; Hans Kelsen, “On the Essence and Value of Democracy,” in Weimar: A Jurispru-
dence of Crisis, eds. Arthur J. Jacobson and Bernhard Schlink (Berkeley: University of
California Press, 2002), 84–109.
13. Carl Schmitt, Legality and Legitimacy (Durham: Duke University Press, 2004), 28–36.
14. Schmitt, Legality and Legitimacy, 31–32, 98–100.
15. Carl Schmitt, Constitutional Theory (Durham: Duke University Press, 2008), 59–66.
16. Schmitt, Constitutional Theory, 71–74; Schmitt, Legality and Legitimacy, 58.
17. Schmitt, Constitutional Theory, 150–58; Schmitt, Legality and Legitimacy, 46–48.
18. Schmitt, Legality and Legitimacy, 48ff.
19. Benjamin A. Schupmann, Carl Schmitt’s State and Constitutional Theory: A Critical Analysis
(Oxford: Oxford University Press, 2017), 189–220.
20. Cf. Svetlana Tyulkina, Militant Democracy: Undemocratic Political Parties and Beyond
(New York: Routledge, 2015).
21. Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” The American Political
Science Review 31, no. 3 (1937), 417–432; Alexander S. Kirshner, A Theory of Militant
Democracy: The Ethics of Combatting Political Extremism (New Haven: Yale University
Press, 2014); Lars Vinx, “Democratic Equality and Militant Democracy,” Constellations
(2020).