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David Dyzenhaus*

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy.' That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism. Schmitt's work has recently attracted a great deal of attention and is likely to attract more. At a time when authoritarian nationalism is resurgent this is not surprising. What is surprising is that some of Schmitt's current followers advocate his view on the basis that Schmitt's concept of the state and politics will help us to resist the dangers which plague liberals and democrats. Their claim is that Schmitt, by alerting us to the problems of liberal democracy, teaches us how to save it from its enemies.
* Associate Professor of Law and Philosophy, University of Toronto. This article is part of a larger work in progress: Truth's Revenge-Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. For comments and discussion, I thank Heiner Bielefeldt, Cheryl Misak, the members of my philosophy graduate seminar on Schmitt and Hobbes, and faculty who attended my papers on these topics at the Benjamin N. Cardozo School of Law, the Philosophy Department of Wilfred Laurier University, and the Political Science Department of Yale University. 1 My account of Schmitt relies principally on the following works: CARL SCHMITT, THE CONCEPT OF THE POLITICAL (George Schwab trans., Rutgers Univ. Press 1976) (1932);

(Ellen Kennedy trans.,

MIT Press 1988) (1923);




Verlag 1982) (1938) [hereinafter



(1934) [hereinafter



(7th ed. 1989). References will in general be given

only for direct quotes. In Schmitt's case, they will be given to the English editions cited here, although the translations are mine.

He ended his commentary on Hobbes's Leviathan2 with a message across the centuries: "You shall no longer teach in vain. I think that much can be learned from Schmitt once we understand why he would not have thought it possible that liberalism could adjust itself in light of his critique. DER SOZIOLOGISCHE UND DER JURISTISCHE STAATSBEGRIFF: KRITISCHE UNTERSUCHUNG DES VERHALTNISSES VON STAAT UND RECHT (Scientia Verlag 1981) (1928) (with emphasis on ch. But in Schmitt's commentary on Leviathan.. supra note 1. .. HANS KELSEN. Paulson trans. Paulson & Stanley L. Throughout this process he appeals.B. The "relation of protection and obedience" is the touchstone of Hobbes's conception of the state. at 113-14 (my translation).. Then the individual wins back his "natural" freedom. he seemed to claim that the Rechtsstaat is the logical terminus for Hobbes: It is the mark of .CARDOZO LAW REVIEW [Vol. LEVIATHAN 3 DER LEVIATHAN. to the authority of Thomas Hobbes. 5 DER LEVIATHAN. MacPherson ed. (C. It fits well 5 with the concepts and ideals of the bourgeois Rechtsstaat. supra note 1. Thus.. This paper addresses these issues by exploring a paradox latent in Schmitt's work. perhaps above all. 4 For Kelsen I rely here principally on HANS KELSEN. the paradox is as follows: Schmitt believes that by exposing contradictions in Kelsen's doctrine of legal positivism. 1992) [hereinafter INTRODucTION]. a rational state power that above all it accepts every political danger and in this sense accepts the responsibility for the protection and security of all subjects of the state. HANS KELSEN. Schmitt found Hans Kelsen to be the theorist par excellence of the bourgeois Rechtsstaat. REINE RECHTSLEHRE (1934). 16:1 I fully agree with those recent responses to Schmitt observing that a project so driven by the urge to destroy liberal democracy is hardly likely to be harnessed in its defense. in particular the contradiction he thought he had uncovered between liberal legalism and democracy. at 132 (my translation). yet it appears that he regards the train of thought set in motion by Hobbes's publication of Leviathan as not only 2 THOMAS HOBBES. reprinted in HANS KELSEN. VOM WESEN UND WERT DER DEMOKRATIE (Scientia Verlag 1981) (1929). Thomas Hobbes!"' 3 Schmitt also devoted himself to exposing what he considered to be the inherent contradictions of liberal legalism. Penguin Books 1986) (1651). If the protection ceases. so the state itself ceases to be and with it any duty of obedience. Schmitt thought of himself as the twentieth century Hobbesian. 12).4 To Schmitt. he simultaneously exposes the contradictory nature of liberalism. Kelsen's legal positivism and accompanying democratic theory were the exemplar of contradictory liberal legalism. Nevertheless. INTRODUCrION TO THE PROBLEMS OF LEGAL THEORY (Bonnie L.

it leads to the eventual subordination of the monarch. through parliamentarianism liberalism can claim. First. SCHMITT's UNDERSTANDING OF LIBERALISM Schmitt considers all political ideologies and doctrines to be metaphysical in the sense that they must ultimately appeal to something beyond actually existing practices. not only denies its metaphysical foundation. liberalism. in his view. even atheistic ones. once the elements of this puzzle are unravelled. by using parliament as the public means of establishing itself. Second. liberalism had to make a pact with public power against the absolutist monarch who always threatens those values. However. This denial. Liberalism. such as security and predictability. subjects the individual to the forces of civil society that can potentially exploit the liberties which liberalism originally guaranteed in its bid for power. but as having had to end there. Liberalism must make a transition from private . will prove to be liberalism's inevitable downfall. he argues. instead of achieving its individualistic aims. but of his critique of liberalism as well. Hence liberalism made a pact with democracy and sought successfully to channel democracy into parliamentarianism. we will have a much better understanding not only of Schmitt's thought. Third. assume the truth of their own vision of politics. Ideologies. I will argue here that. In order to realize those values. Finally. Parliamentarianism is a system which suits liberalism's purposes for several reasons. parliamentarianism is itself balanced by the division of powers. are met. it establishes the normative order that provides the framework in which the requirements of a market society. and that is not a matter that can be adjudicated on the terrain of politics. It is in this sense that he sees the conflict between ideologies as one between political theologies. Schmitt understands liberalism as the ideological manifestation of the bourgeois allegiance to the individualistic values of liberty and private property. by an appeal to representation. but institutionalizes that denial. is a metaphysical system that. democratic legitimacy. for liberals the division is identical to constitutionality and ostensibly an effective constraint on public power. because of its allegiance to rationalism.1994] CARL SCHMITT ON HOBBES AND KELSEN 3 having actually ended in the establishment of the Rechtsstaat. We will then be in a position to assess whether Schmitt speaks to contemporary debates in political and legal theory.

Secret ballots mean that the voting citizen is isolated in the decisive moment.. It can even be politically more shrewd not to decide oneself and to use the so-called majority decision in this way. 7 Id. and the right to shutdown. namely parliamentary democracy."7 6 Here are two representative quotes. In contemporary democracy. Here the process of majority determination can be a suitable and desirable method to avoid and suspend political decisions. supra note 1. The right of association. figure. at 244-45 (my translation). .6 For the most part. at 282 (my translation). who renounces his voice and expresses a private opinion from within the sphere of the private. one should not fail to recognize that there is a kind of democracy. that is. whose treatment goes beyond the framework of a "Constitutional Theory. VERFASSUNGSLEHRE. and the bond between the assembled people and the vote is torn asunder. which fight each other and which oppose each other with specific social instruments of power like the strike or lockout. Schmitt describes this process of privatization as a logically necessary one following from the most basic liberal assumption of universal individual equality. to associations. the methods of elections and plebiscites in no way contain the process of a genuine people's election or plebiscite. but it cannot do so without subverting itself.. For a consistent following through of election and vote by secret ballot leads to the metamorphosis of the citizen as the specific democratic. the right to strike. at 165-66 (my translation). 16:1 to public in order to privilege the private. both from the . so the fundamental presupposition of the liberal Rechtsstaat has lapsed. The assembly of the people as a presence and any acclamation is in this way made impossible. into a private individual. Id. As soon as freedom of assembly leads to coalitions.Verfassungslehre. The people no longer votes and elects as a people. it cannot publicly manifest itself without privatizing the public sphere and thus rendering the public sphere prey to legions of private interest groups. so the point of the political is reached and consequently an individual fundamental or liberty right is no longer in existence. And "liberty" no longer means the in-principle unlimited scope of activity of the individual. Nevertheless. whether through express constitutional dispensation or by means of a practice of tacit tolerance.. it is also important to bear in mind that he also sometimes describes this process as a deliberate deception: Still. but organizes a process of individual voting by means of the addition of individual voices. which has a plain interest in having certain antitheses remain latent so that they do not come to decision. but the unlimited exploitation of social power by social organizations. Then the proposition "the majority decides" would belong to the arcane reaches of a particular political system. that is. When a social group achieves such potential for struggle. are not liberty rights in accordance with the meaning of the liberal Rechtsstaat. political.CARDOZO LAW REVIEW [Vol.

Schmitt believes that traditional modes of justifying political authority are no longer available.1994] CARL SCHMITT ON HOBBES AND KELSEN 5 Schmitt talks often of liberalism's attempt to avoid the people and the sovereign. . As Schmitt never fails to point out. The contradiction is manifested on the surface in the apolitical or even antipolitical nature of liberal politics. then. the bourgeoisie. in Schmitt's opinion. empty politics of content and thus undermine liberalism. Thus Schmitt. attempts to rule over all others. Can Schmitt say both things of liberalism? On the one hand. the problem has to do with the crumbling of tradition rather than the unavailability of traditional justifications. It is important to see here that in Schmitt's view this is not a contradiction in his critique.' All three think that the disappearance of these modes means that we must accept the truth of relativism. conscious or not. fascism. On the other hand. strictly speaking. He also claims that every legal order is in some sense a concrete order in which some individuals rule over and subordinate others. in its concealment. In other words. ScHMI-rr ON HOBBES As do Hobbes and Kelsen. and Marxism) now compete for our attention. exemplified in its legal order. of its politics-a concealment which must. The peculiarity of liberalism as a political doctrine resides. regardless of his own personal religious views. by definition it follows that liberalism too is a concrete order where one group. and thus that their politics are the real politics of liberalism. but the contradiction which his critique exposes. Liberalism creates a society which desperately requires a sovereign decision but seeks at every point to postpone or prevent such a decision from being made. Schmitt found the passage from rationality to contradiction most starkly illustrated in the transition from Hobbes's authoritarian positivism to Kelsen's liberal legal positivism. he asserts that liberalism has no politics at all. he claims that liberalism provides a cloak for a power grab by private interest groups. It is a contradiction which pervades the doctrine to reside at its deepest level because liberalism's rationalist metaphysics is antimetaphysical. asserts that God is dead in the sense that different gods (including atheistic ideologies such as liberalism. 8 It might be more accurate from Schmitt's perspective to say that there are no traditional modes of justifying political authority since the requirement of justification arises only when what had hitherto been taken for granted is thrown into question. and thus the fundamental political decisions which he considers the very substance of politics.

at ch. Hobbes climbs a rational ladder to reach his solution.A. To use H." 1 9 See 10 HOBBES. Since we cannot agree about truth in the state of nature. and not truth. He also thinks that Hobbes's absolutist or dictatorial solution is on the right track. In contrast. therefore. Liberalism offers an argument that is doubly rational in that it seeks to institutionalize its particular solution in the public order.CARDOZO LAW REVIEW [Vol. To adopt a metaphor from Wittgenstein. ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY 254 (1982). he kicks the ladder away.L. 26. Schmitt thinks that rationalism perforce undermines political authority. the solution must be irrational in origin-a dictatorship which claims infallibility on the basis of a myth. but is necessarily undermined by its rational basis because that basis will eventually assert itself in the political superstructure. Hart's 0 phrase. our reason for obedience is "content-independent. 9 These theses arise from Hobbes's fears about the state of nature. but because it is commanded. and (3) the supreme lawgiver is the sovereign-an entity or person that has ultimate legal authority yet stands outside of the law. (2) legal subjects must take actually existing law as if it were a true interpretation of the laws of nature and. Liberalism both appeals to individual rationality and structures its political institutions on the very model of individual rationality to which it appeals. we need authority of a very particular kind-an authority whose desires are expressed in the form of commands rather than counsel. H. Thus. The idea of a rational public order is for him a contradiction in terms. supra note 2. once he has reached the top. makes law. Schmitt believes that he can explain how Hobbes's logical terminus is Kelsen's liberal legal positivism in terms of Hobbes's inability to kick the ladder away.A. evinced by the fact that liberalism inevitably subverts itself.L. HART. for Schmitt. and whom we obey not because of our evaluation of the content of his commands. Hobbes and Kelsen try to provide a rational argument for their methods of justifying political authority in a relativist age. . Hobbes builds his theory of public order on an appeal to individual rationality. In Leviathan. but then seeks to preclude individual rationality from any significant place in sustaining and recreating public order. but. 16:1 Where he differs from Hobbes and Kelsen is in the conclusion that he believes follows from the fact that we live in a relativist age. as morally binding. Hobbes sets forth three main theses about law: (1) authority.

although they are then acting as mini-sovereigns (or interpreters of the laws of nature). Nonetheless. The law already supplies the answer and the judge's role is limited'to simple application. 1 Furthermore. . See HOBBES. Thus. then the law on this issue has the correct. merely execute the will of the sovereign rather than act as mini-sovereigns. 26. if there is no such answer. the more such cases exist.' However. at ch. If the interpretative tests mandated by the legal order in fact supply an answer to the question.1994] CARL SCHMITT ON HOBBES AND KELSEN 7 It is crucial to see that in order for the system of commands (the legal order) to be capable of supplying content-independent reasons for action to legal subjects. it is preferable that judges should. Law must take the right form if it is to be effective. The judges must decide whether execution should fall within the scope of cruel and unusual punishment. or positive form. the actual content of the commands must be identifiable or determinable in a very particular way. there is no law. the greater the uncertainty in which the subjects live until judges or the sovereign clear up the uncertainty. They will then engage in evaluative arguments as to what the law should be and can no longer be understood as taking the sovereign's command as a content-independent reason for action. supra note 2. when judges engage in evaluative arguments about what the law should be. by definition. According to Hobbes's model. in order for a command to function as its logical formal structure requires. Hobbes therefore holds that law must have a particular form if it is to fulfill the function of providing the framework of a stable 11 This command can be express or silent-it is silent when the sovereign simply refrains from overruling judicial decisions. they are still subject to the sovereign's general command authorizing such activity. Hobbes was committed to believing that the fewer such cases the better. in so far as possible. legal subjects are-under the same duty to obey the judge-made law as they would have been had the legislature made its intentions clear in the first place. it must have an identifiable content which does not require its subjects to engage in evaluative arguments to determine what the content should be. With regard to legal subjects. Consider a standard example: the legislature decrees "no cruel and unusual punishment" and a court must determine whether the legislature intended to include execution in that category. then. once these judges have made definitive pronouncements.

That was the reason Hobbes called his great work on political philosophy "Leviathan" and it was why he. Schmitt regards the argument which links form and substance favorably. In his view. the individual. Schmitt contends that Hobbes's argument robs the authoritarian solution of the kind of content or "substance" that can make it work. Hobbes appeals to the one end on which he believes all individuals can agree-that self-preservation is the ultimate good. But his third reference is to the Leviathan as a great machine. Law's content must be determinable and identifiable by factual tests which do not involve controversial moral-evaluative arguments. whose instrumental reasoning power is the cause of the problems of the state of nature. described the sea monster as a great man. Schmitt maintains that. Put differently. Two will be addressed here and the third in the final section of this Article. He found it significant that Hobbes felt compelled to make it despite the fact that the most basic unit in Hobbes's theory is the atomistic individual. The product of his rationalist impulse was the destruction of the state's soul which rendered the state insubstantial and thus open to enemy capture. Further. see. even though he ultimately reaches an authoritarian solution. authoritarianism is just the obvious solution once traditional modes of legitimizing political authority are no longer available. is also someone to whom he appeals in order to initiate his rational argument. political order and law will become self-subverting. 227. Hobbes sows the seeds of the Leviathan's destruction. In Schmitt's opinion.13 Despite Hobbes's outward denial of any room for individual rights against the state. supra note 2. For Hobbes. In order to reach this solution. without that substance. 16:1 political order. Schmitt thinks that the solution is compelling. at 81. More accurately. Schmitt finds three related points in Hobbes's construction of the state where individualism manifests itself in a way that will eventually bring down the structure. HOBBES. By relying on the rational argument. but that it does not need the rational argument to be reached.CARDOZO LAW REVIEW [Vol. this rational argument 12 leads naturally to Kelsen's liberal restatement of legal positivism. There must be an intimate and highly political relationship between form and content. in his second of the three references to the Leviathan. respectively. Hobbes saw the need for a myth that would lend the positive legal order the right kind of substance. 12 13 See supra text accompanying note 5. For these references. 362. .

on the one condition that the subjects continue to enjoy protection so that they can go about their own lives. and so throws into question all other forms of social organization. Hobbes reserves to individuals the right to determine what is right or wrong for themselves. as part of the logic of the process. 4 14 Id. This image is deeply metaphysical in that it challenges the power of other political symbols by seeking to erect the myth of the great machine in their place. Hobbes also makes a distinction between faith and confession and states that all that the sovereign can ask of his subjects is that their actions conform to his commands. This rational state apparatus is one which functions mechanically so as to ensure the rule of a framework of stable laws rather than the personalized and arbitrary rule of the sovereign. or formal legal validity. But this is not to say that private judgment as to the truth has no place in Hobbes's system. and religions by its claim to neutrality. While Hobbes says in chapter thirty-seven of Leviathan that the sovereign can command conformity to any creed he chooses. at 478 (ch. all that will matter is that the machine functions. It seeks to subvert all political myths. The actual ruler becomes wholly unimportant-as do the content of the laws. the first manifestation is in Hobbes's emphasis on state structures that facilitate individual calculation of the consequences of action. is the mark of a valid law. Schmitt found that this idea explained the image of Leviathan as a great machine that is also a man. But in a sense it is also antimetaphysical since the new god it creates is transcendent in only a juristic. and can determine what is a miracle and what is not. it makes itself the most profound metaphysical claim of all. theologies. not that they believe his commands to be true. according to Schmitt.1994] CARL SCHMITT ON-HOBBES AND KELSEN 9 In Schmitt's view. Thus. But. and not truth. Hobbes can thus be justly seen as the founder of legal positivism. in the very claim to do away with all other myths. not a metaphysical. Though he shares with Schmitt a deep distrust of allowing any matter of public importance to be determined by a conversation between individuals. sense. But the elevation of that idea to a political level makes a society organized on individualistic lines possible. For him authority. 37). legitimacy is collapsed into legality. . Eventually. The idea of the ruler as a soul in a machine is nothing more than Descartes's idea of individuals as machines with souls.

Hence Kelsen's "Grundnorm" or basic norm: "Now the 7 1 machine runs itself. With the distinction between faith and confession. soulless. and vulnerable to capture by the indirect powers of civil society.1 SCHMITT ON KELSEN In Schmitt's view. The seeds of the idea of civil society as the realm of the inner sphere are also the seeds of the Leviathan's death. The underlying concept is that no individual should be subject to the will of any other individual or group of individuals. from something wholly marginal in Hobbes. according to Schmitt. given the disappearance of the soul from the great machine-state. If the sovereign is a highly personal entity existing outside the legal order. .CARDOZO LAW REVIEW [Vol. and which logically culminates in Kelsen. it becomes a self-sustaining basis of the legal order. the state becomes hollow. to something central which should be given primacy over the outer." Both Schmitt and Kelsen try to emphasize the logical nature of this positivist conception of law. supra note 1. supra note 1. according to Schmitt. Kelsen emphasizes the appropriateness of the theory. 16:1 Here. The ultimate authorizing command of the order both requires obedience to the law and authorizes judges to interpret the law. 16 Id. is the second way in which Hobbes's reliance on individual rationality subverts his solution. each organized around its own myth. 15 The actual change in the inner sphere's status. is. then the individual is subject to the sovereign's arbitrary will. at 84-97 (my translation). the terrain of free individual action. largely the work of Jewish philosophers such as Spinoza and Moses Mendel6 sohn. are sown. And. and thus the seeds of the idea of civil society as one vast private sphere. In order to understand legal order scientifi15 DER LEVIATHAN. the distinction between the inner and the outer spheres is born. at 62 (my translation). Kelsen's restatement of legal positivism is the fulfillment of the Enlightenment project which attempts to subject human interaction to an impersonal order of rules: the rule of law and not men. The logical solution to this problem is to draw the sovereign into the legal order so that he is eventually dissolved into the rules of that order. It is here that one gets the decisive break in Hobbes's system which will eventually lead to the ideas of freedom of conscience and thought. 108. and thus to the liberal constitutional system. 17 POLrnCAL THEOLOGY. at 87-97. The mythical forces which Hobbes's Leviathan were meant to combat are in fact unleashed by it to strike back.

Since the exception cannot be legally determined in advance. 19 18 For example. not only is the conflict resolved by some personal act of will emanating from outside the law. According to Schmitt. supra note 1. it follows that both the declaration that an exception exists and the means appropriate to deal with it are determined irrationally. the decision as to whether there even is a conflict is a personal one. if there is legitimacy. See INTRODUCrION.' 8 Schmitt thinks that Kelsen's line of argument illustrates that his solution is merely logical and thus of no practical effect. it derives from an irrational source. The instance of illegal state action which he discusses at length in various places comes about simply because one agent of the state issues a norm whose content is in contradiction with the content of another norm. The person who is the most important locus of power for such decisions is the sovereign. According to Kelsen. However. as long the acts are performed by an agent who has the "competence" to do so. the norm which embodies the doctrine of finality holds that an official mistake of law will. In situations of conflict. become the law at that time if it is allowed to stand.1994] CARL SCHMITT ON HOBBES AND KELSEN 11 cally. most notably during a state of exception or emergency. at 5-15. Schmitt argues that legal positivism exhibits the liberal trait of authority being undermined by rationalism. . even if it contradicts the content of a higher norm. supra note 4. In Political Theology. Schmitt reckons that liberal legal positivism breaks down. what preserves the noncontradiction is the premise that there will always be a higher norm to resolve the conflict. Since it also follows from Kelsen's discussion of state illegality that such competence cannot be definitively constrained by law. impossible. It dooms Kelsen's legal theory to recognizing as the law even acts which are illegal by the law's own standards. in practice. we must understand it as a logical structure. Since the most fundamental challenges to a legal order are ones which throw its legitimacy into question and at the same time open up the possibility of a state of exception. The necessity of decision in the "state of exception" is the flaw in the positivist legal order. at 73-75. both the decisions as to when there is an exception and how it will be managed are not amenable to a prior. Nor does Kelsen imagine such contradictions to be. rational legal ordering. but that the structure is free from internal contradiction. Kelsen believes that what makes such an order a logical structure is not that the content of any rule or norm can be derived from a higher norm. 19 POLITICAL THEOLOGY. it also follows that.

the purer it becomes.CARDOZO LAW REVIEW [Vol. objectivity and subjective arbitrariness. 21 22 Id. that legitimacy in the age of rationality is nothing more than legality-the criteria which the law itself provides for valid law. And then through the normativity of legality he raises himself again above the state's power to decide. but he requires at the same time that this decision has a continuing. the sharper the contrast it makes between the juristic and the worldly. 21' Moreover. . there was the bourgeois's historical political decision to form an alliance with the democratic forces resulting in the concentration of legislative power in parliament. between the economic. 16:1 Schmitt writes. which means that the legislature subjects itself to the norm.2° Schmitt thinks that the decision to subject oneself (and all other legal subjects) to the decisions of the legislature is the decisionist component which makes positivism possible. The result is that positivism can no longer distinguish between law and not-law. and puts normative demands to the legislature. at 38-40. 22 Although Schmitt does not make this explicit. First. echoing the claim made by the main spokesmen for positivism in his day. although in the place of a Rechtsstaat he has a legislative state and in place of justice the security of the law. 35 (my translation). and the more it is torn from the normal situation which it presupposes. and the political. Thus he grounds his stance first on a will (the legislature or the statute) then against this will on an "objective" statute. Thus it subjects itself to a sovereign power without conceiving of this power as an institution or as a concrete order. asking for what would be "by its own lights good law. supra note 1. which he had subjected himself to in the interests of security and certainty. the social. it seems that for him the decisionist component of legal positivism has two main characteristics. above all. because it alone has actual power to enforce its will. It is only this legal system that he calls the Rechtsstaat. solid and unbreakable validity as a norm. at Id. Second. His analysis of this claim is best summed up in the following quote: The positivist has no independent and therefore no eternal type of juristic thought. and without. But positivism refuses to inquire into the "metajuristic" moment of the decision. He subjects himself decisionistically to the decision of the legislature who is actually in possession of state power. there is the continuing and necessary moment of decision which should be both preserved and exhausted in the actual decisions made by 20 DREI ARTEN. at 38.

Thus. because it can take on any content. It is also antisociological in that it seeks to eliminate power both as a theoretical problem and as a fact of political life. But Schmitt maintains that the death of God results not in the triumph of science but in a war between gods. antitheological. and antipolitical. ' 23 He regards the defects of this structure as a manifestation of liberalism's contradictory nature.1994] CARL SCHMITT ON HOBBES AND KELSEN 13 the parliament. despite his declarations of agnosticism. however. The decisionism preserved by reserving legislative power to parliament is in a sense not a genuine decisionism at all. it acquired substance from parliament's subordination of the king in order to establish and preserve a concrete bourgeois political order. the legal positivist is in the impossible position of both subjecting himself unconditionally to parliament while requiring that parliament subject itself to law. the bloody battle of the decision. at 63 (my translation). namely the liberal value of protection of absolute liberty and private property. liberal politics. and even then it is a content tied to its time. supra note 1. Rather. But its content can be nothing more than the result of the formalistic concept that laws will be recognized as such only when they are general norms properly enacted by parliament. After that point. Kelsen. The main feature of Kelsen's restatement is that the sovereign disappears. The idea of a sovereign entity as a personality which both 23 POLITICAL THEOLOGY. and is what renders vulnerable. could be metamorphosed into a parliamentary debate and would allow itself to be suspended in an eternal discussion. . procrastinating half-measures. Schmitt says that liberalism's "way of being is negotiation. the legal order which legal positivism justifies is both empty and vulnerable to enemy capture. but in the growth of private powers which captured the state. proclaims more than the disappearance of the state-he also proclaims the death of God. Nor is this requirement merely formal. it is a decision to avoid decisions. and the liberal myth in general-the political theology of liberalism-is antimythical. Thus. that is both characteristic of. just as he believes that the disappearance of the state results not in the disappearance of political power. Schmitt asserts that this requirement is one that liberals sometimes try in vain to inject with content. in the hope that the final clash. Kelsen's myth. it might seem that only the first aspect of legal positivism's decisionist component has any real content.

Claims based on tradition are no longer available. liberalism creates the conditions for a general state of exception with which it cannot deal. It is dictatorial only in that it provides a battleground for private interests and thus a means for groups organized around such 24 interests to dictate to the rest. Groups which are committed to destroying liberalism by constitutional means can exploit that weakness to overthrow the constitution. For Schmitt. perhaps in spite of themselves. it cannot. 16:1 stands outside of the legal order and belongs to it is transformed into a mere personification of legal order. And liberalism. liberalism is not only constitutionally incapable of containing such factors. Claims based on rationality subvert authority and 24 Groups which are committed to liberalism cannot achieve a true dictatorship-all they will do is weaken the state and society. Given that Schmitt views democracy to be no more than an asserted identity between ruler and ruled. The identification of the minority will with the majority will after the majority has decided is one example of such an equation. in identifying the people's will with what the parliamentary majority decides. also driven to equate democracy with dictatorship. By inviting the collapse of the state into a society composed of a multitude of competing interest groups. However.CARDOZO LAW REVIEW [Vol. in his view. these equations must have the same status as the liberal recognition that a state of exception is always possible. it also provides them with a fertile breeding ground. opens the door to a majority that can decide to destroy liberalism and requires the people to adopt that will as its own. while liberalism must recognize the potentially dictatorial identity between ruler and ruled which Schmitt takes to be the essence of democracy. Thus. State and sovereign become merely different expressions for a valid legal order. as is the idea that the educated might know the will of the people better than the people know it themselves. become truly dictatorial. an appeal to democracy is the only modern means to legitimize political authority. why does he find himself compelled to appeal to democracy? The answer to this question is that to Schmitt. while liberal parliamentarianism and democracy are. . some crucial factors in political life which potentially threaten its existence. SCHMITr ON DEMOCRACY Schmitt asserts that democracy and dictatorship are not contradictory. and seek to contain. liberalism cannot help but recognize. This assertion is in part supported by showing how liberal democrats are. That is.

it is a purely formal requirement. in the absence of tradition. Schmitt holds that the structural weaknesses of liberalism are irreparable because they are inherent in liberalism's nature. conceived (as Kelsen conceives it) as a model of competing private interests out of which the truth ostensibly should emerge. the people are the audience to which one must appeal and an appeal to the people is an appeal to democracy. . The first is negative-and we will know it by its deep antithesis to liberalism. According to Schmitt. One will not see the problems as structural and therefore irreparable. Liberalism thus aims at truth. Democracy is what is done in the name of the people-what one does when one can authentically assert that an action is identical to the people's will. In particular.1994] CARL SCHMITT ON HOBBES AND KELSEN 15 thus subvert democracy when one seeks to put democracy on a rational basis. it had to relativize democracy through parliamentarianism. One cannot understand that work without recognizing that it is driven by a particular purpose-to show the need for a myth based on an idea of substance. If one provisionally rejects the structural claim. it is not purely formal since only some appeals can give substance to the formal idea. But the appeal to democracy is necessary. There are two very abstract criteria for what can count as substance. but then undermines its aim by surrendering to the competition of atomistic interests. An appeal to democracy is then a necessity for any ideology that seeks to become dominant. Of course. which it simultaneously attempts to render impotent by the division of powers. the very identification of these problems as structural depends upon Schmitt's claims about substance. like any ideology. But it makes nonsense of his work. The understanding of Schmitt as wanting to help liberalism is one which Schmitt encouraged after World War II and which his American disciples propagate today. liberalism. But in another sense. then Schmitt can be understood as pointing out problems in a useful way rather than seeking to subvert liberal democracy altogether. I SUBSTANCE AND FORM IN POLITICAL AND LEGAL THEORY As we have seen. we will know it by its articulation of a vision that makes life worthwhile for individuals. which is to be neutral or substanceless. unless one also accepts the premise that liberalism needs a substance which it both does not and cannot have. had to make a pact with democracy. In one sense. since. In order to make its pact.

26 The latter was. Since it invites any substantive ideology to replace liberalism. "[a]stronomers postulated Neptune before they discovered it. The power arises because. According to Dworkin. he thinks. Schmitt's preferred solution to the problems of Weimar. Schmitt's analysis of liberal ideology and of liberal institutions is constantly designed to ask whether this problem can be cured by a neutral. and does not discriminate further between the range of ideologies. In an internal political struggle. Nevertheless. one might be driven to resign oneself to this idea if the problems are indeed structural. 25 It should be clear that I accept much of what Leo Strauss had to say in his review essay Comments on Carl Schmitt's Der Begriff des Politischen. it cannot. unless it has a purpose for which one is prepared to die. they are no less real or serious. It arises during a crisis situation in which one of the participants in the struggle is able to articulate a vision of who are the enemies of the people which meets with the people's acclaim. . at 81-105. apolitical doctrine. supra note 1. One's life is worthless. close the door in late Weimar Germany on Nazism while trying to keep it open for some dictatorial union between26 Catholic aristocrats in the cabinet and the office of the President. of course. even if one does not welcome the idea that some substantive ideology is the only alternative to substanceless liberalism. even if it does not provide us with a positive theory. Liberalism cannot ask for the highest individual sacrifice since it makes the individual the ultimate judge of what is good for him or herself. Schmitt's analysis seems theoretically very powerful. Even if the problems he uncovers are not seen as structural unless one is driven by some abstract purpose. See THE CONCEPT OF THE POLITICAL. for example. the identification of the enemy will divide the participants into friends and enemies.CARDOZO LAW REVIEW [Vol. in Schmitt's view.25 The second criterion for substance is existential. this means a vision on whose behalf individuals can be asked to sacrifice their lives.subverts his authoritarian solution. 16:1 And. It is in Hobbes's reservation to the individual subject of the right to resist the sovereign's attempt to kill him that Schmitt finds the third instance in which Hobbes's reliance on individual rationality. but it will also bring the people into existence. when it is such a doctrine that appears to be the cause of the problem in the first place. His strategy does not appear much different than the one adopted by Ronald Dworkin who argued for a conception of law built on the ideal of integrity. This abstract purpose is potentially very vulnerable.

If Schmitt is right. Our instincts. Second. I think.1994] CARL SCHMITT ON HOBBESAND KELSEN 17 They knew that only another planet. (1978). '27 Generally. First.28 The difference between Schmitt and Dworkin is that Dworkin then positively argues for a particular way of filling in the ideal of integrity. suggest another political ideal standing beside justice and fairness. 29 One can. If he were making that argument. from the beginning. he seems to be arguing that there is a pragmatic necessity to move beyond relativism to absolutism or infallible dictatorship-but that liberalism's constitutional commitment to relativism renders it pragmatically incapable of making that move. he argued against utilitarian theories that adopted a view of politics similar to Kelsen's and for a substantive theory of individual rights based ultimately in a doctrine of equality. plausibly understand the internal development of Schmitt's own thought as a gradual recognition of the nature of that necessity and of what was required to meet its demands. Schmitt does not argue that relativism is flawed because it cannot support the kind of moral absolutism he regards as the sole cure for its problems. TAKING RIGHTS SERIOUSLY Vii . I One curious consequence should be noted. LAW'S EMPIRE 183 (1986). whose orbit lay beyond those already recognized. could explain the behavior of the nearer planets. But Schmitt would probably want to try to show that antirelativism is inconsistent with 27 RONALD DWORKIN. liberals who adopt something like Kelsen's relativist stance are in real trouble.29 Dworkin. he had to replace legal positivism with a theory of law that claimed a basis of moral substance immanent in the law. Schmitt did not carry his theory so far because he. he is also a relativist.. found it to be a liberal mistake to suppose that such positive justification is possible.. the gap Schmitt and Dworkin claim to encounter seems to me to be the same-a lack of substance. then liberals have no better -ground than he to discriminate between which destination the leap should bring. of course. Interestingly. Rather. Indeed. Dworkin's first crucial move is to suggest that something exists that naturally fills the gap repeatedly encountered during analysis of political morality's persistent problems. is an antirelativist. for if he is right that the problems of such a stance are cured only by an absolutist leap which is not itself justified but which provides its own justification through success. as a relativist. he would refute himself since. as I have claimed. 28 RONALD DWORKIN. Dworkin believed that he had to remedy the problems of liberalism at two levels.

REV. to use their superior resources to dominate another group. In Schmittian terms. Pornographyand Public Reason. Ronald Dworkin. Ronald Dworkin. N. I discuss Dworkin's responses to MacKinnon in my forthcoming article. Women and Pornography. According to Dworkin. as Dworkin describes it. VII CAN. Oct. in this case men. under a liberal democratic constitution. Following through with Schmitt's logic. Schmitt would think. MAcKINNON. N. at 12. 1993. His neutrality thus favors one group over another and his concern is that if this stance of neutrality were to be modified. The Coming Battles over Free Speech. private choices trump a public choice and the political is reduced to private morality in which the state has no business to interfere. one might say that the example shows that Dworkin is fundamentally committed to relativism since his stance is that each individual's preferences as to how to live must be considered by the state to be as good as those of any other individual. at 36 (reviewing CATHERINE A. lead to the realization that liberalism cannot meet this need. Aug. which. Dworkin would either have to retreat from substance or recognize that there is no stopping point on the road to substance. at 55 (reviewing ANTHONY LEWIS. See David Dyzenhaus. He therefore argues that. 16:1 liberalism. OF BOOKS. OF BOOKS. the hope for a substantive basis to liberalism is equality. ONLY WORDS (1993)). even if its effect is to enable one group. is meant to found a liberal community. OF BOOKS. 30 See his essays on this topic responding to Catherine MacKinnon in the New York Review of Books. Liberty and Pornography. Pornographyand Public Reason.Y. which means remaining neutral in regard to an individual's conception of what is in her or his own best interests. 1991. legislation accepting the arguments of feminists who would eradicate pornography would be unconstitutional. MAKE No LAW: THE Sullivan CASE AND THE FIRST AMENDMENT (1993)). . Thus.Y. REV. 21. there would be no stopping point. I offer the following example (with apologies to those feminists whose arguments I have cast in a Schmittian mold). & JURISPRUDENCE (forthcoming 1994). 30 His reason is that one must be agnostic or neutral on the subject of how individuals choose to live their lives. June 11.CARDOZO LAW REVIEW [Vol.Y. N. Dworkin is committed to absolute freedom of speech. REV. 15. J. Ronald Dworkin. 1992. Dworkin's model allows a different covert politics to reign and demonstrates that the liberal ideal of universal equality is a cloak for power grabs by particular interest groups. it is significant that Dworkin finds it necessary to appeal to a substantive sounding idea like integrity. But in his critique of those feminists who argue for the censorship of pornography on the basis that it perpetuates inequality between the sexes. But Dworkin's recognition of liberalism's need to acquire substance must. OF L.

Put differently. That is. Where it points productively is in the task liberalism must undertake and which he thought impossible. His own embrace of Nazism should warn us that his political existentialism is highly dangerous. Dworkin is correct to stick to his guns. there would in fact be no stopping point for the claims that competing interest groups would make of the state. I think. once it became the dominant ideology. Liberalism is damned if it does and damned if it doesn't. 31 My view is that he was in principle committed to embracing Nazism. liberalism has yet to show that it can offer a convincing account of democratic citizenship. something to his critique. from the liberal standpoint.1994] CARL SCHMITT ON HOBBES AND KELSEN 19 A Schmittian might also draw our attention to the fact that. 3 1 But there is. My aim here is by no means to suggest that we should accept Schmitt's critique of liberalism. liberalism must learn to manifest itself in the public realm in a way that does not privatize politics. For if he were to accept the equality-based feminist argument for censorship. .