Legality, legitimacy, and Carl Schmitt
ON APRIL 7, 1985, the death of Carl Schmitt, at age 97, brought to an end the longest and stormiest career in the history of political thought. Schmitt’s hero, Thomas Hobbes (1588-1679), another explicit political realist, would probably place second among long-lived theorists of the state. Attacked for his belittling comments about the Weimar Republic and for his initial support of the Nazis in power, Schmitt spent the postwar years in semi-official disgrace. The West German government and most of the postwar German press studiously ignored a figure once called “Hitler’s Crown Jurist.’ Released from American detention after the war, Schmitt went into permanent retirement at Plettenberg, the Rhenish village of his birth. There he received mostly foreign visitors, such as his French commentator, Julien Freund, his later American biographer, J. W. Bendersky, and a new generation of devotees from Latin Europe.
Germans were understandably more reluctant to recognize Schmitt, despite his pre-eminent standing among European political thinkers. Embarrassed by their recent past, they pretended that this celebrity of the Weimar period (to whom Leo Strauss devoted one of his earliest writings) had already departed, together with the Nazis he had briefly endorsed. Not until October 1986 did German academics call a conference, at Speyer, to discuss Schmitt’s achievements. These included 43 books and several hundred articles, which had inspired hundreds of dissertations in the last decade alone.
Has Schmitt found a foothold in America? Joseph W. Bendersky wrote an exhaustive biography of him, published by Princeton University Press in 1983. In 1985 MIT Press put out translations of two of his works, The Crisis of Parliamentary Democracy and Political Theology: Four Chapters on the Concept of Sovereignty; last year MIT published Political Romanticism. If truth be told, none of the English editions has sold well. The publicity editor at MIT Press told me with obvious chagrin that all the Schmitt translations have yielded only 1,500 sales. Writings by Jurgen Habermas and other members of the neo-Marxist Frankfurt School featured in the same series, Studies in Contemporary Social Thought, have enjoyed far more success. Utopian Marxists simply sell better in this country than self-described conservative realists.
In Europe, however, Schmitt still draws attention and raises hackles. Right after his death, Die Welt, Die Zeit, and other German newspapers both Right and Left charged him with being a proto-fascist, “closer to power than to justice.’ Writing in Encounter, the Swiss journalist Francois Bondy insisted the Nazis “were only too pleased to be able to exploit theories of identity between Fuhrer and Volk; to echo his [Schmitt’s] thesis that robust legitimacy took priority over pale and empty legality; and to accept the friend/foe political dichotomy which sent them off on a total search for total enemies.’
The charges Bondy raises are perhaps more serious than the attempts to link Schmitt to the Nazi regime. As his defenders, including Freund (a Gaullist of Jewish descent), have stressed, Schmitt quickly lost favor with the Nazis, whose revolutionary racist ideology clashed with his own traditional authoritarian concept of the state. The fact that Schmitt denounced the Weimar Republic in the early Thirties for not resisting Nazi violence effectively enough also made him unwelcome to Nazi theorists. Through most of the Third Reich he lived under a cloud of suspicion, where he remained unalterably after 1945.
Despite the accusatory tone, bondy is correct about the thrust of Schmitt’s demystification of politics. Although he quotes admiringly from Catholic traditionalists of the Latin South, like Aquinas, Donoso-Cortes, and the Spanish Jesuit Suarez, Schmitt follows more closely two students of power politics, Machiavelli and Hobbes. Like them he sees the world as a jungle in which the shrewd and bold are destined to rule. Like other lapsed Catholics who continued to hate the Left, Schmitt valued community above individual liberty. He taught that hierarchy, not equality, is natural to the human condition. He repeatedly asserted that governments that rest on mere legality cannot protect themselves either at home or abroad.
Though remembered and sometimes ridiculed for citing “exceptional circumstances’ as the test of liberal democracy, Schmitt believed that democracy would destroy the state from within, even if there were no sudden catastrophe. Parliamentary and pluralistic democracy was preoccupied with balancing the interests and settling the grievances of contesting parties and strident minorities. The liberal democracies analyzed by Schmitt made themselves contemptible by currying favor. Ironically, they aroused revulsion and fear of despotism in proportion to their efforts to be acceptable to everyone. As Schmitt presciently observed: “A pluralist state run by parties becomes a total state not by its effectiveness but by its weakness. It intervenes in every aspect of life because one expects it to satisfy the rising demands of all claimants.’
The political entity being discussed lacked the cohesion characteristic of established national communities. Moreover, it was incapable of adapting itself to the state system that had existed in Europe since the early modern period. Without a sustained diplomacy and a continuing awareness of political enemies (as opposed to counter-litigants or competing party coalitions), modern democracies ceased to be recognizable as states. In most cases, they could not defend themselves against adversaries foreign or domestic (being unable or unwilling to distinguish friend from foe), or else they turned all international struggles into ideological contests. This second course endangered sovereign states. It represented an attempt at hegemony by people who pursued globalist dreams instead of limited national interests.
Significantly, Schmitt identified this expansionist tendency with American democracy, while seeing political impotence as the mark of European parliamentary government. His observations on American hegemony have given him vogue among Marxists, particularly in Italy. Always ready to stick it to the Americans while deploring the corruptness of bourgeois parliamentarians, Marxists have been less hesitant to draw on Schmitt than have many European and American conservatives.
Even among his qualified defenders (among whom I number myself), it is often wrongly assumed that he is addressing the problems of a strictly non-Anglo-American culture. Despite his undiminished popularity in Latin countries, Schmitt is now increasingly relevant for America. No less than James Burnham, Schmitt underlined the self-destructive tendencies of modern democratic societies, both their globalist illusions and their inner fragmentation. He also saw that these two traits can operate interchangeably in the absence of genuine community. Faced by a Congress that cannot tell friend from foe, sincere patriots who invoke universalist rhetoric when they should speak of national survival, and a “gay community’ whose sensitivities the media urges us to protect even as we try to battle AIDS, Americans should be taking Schmitt seriously. Here was a thinker who recognized the fatal tendency of modern democracy to confuse legality and legitimacy. Our own government, even more than that inter-war German one Schmitt found defective, makes the mistake of seeking respect by passing laws for every human predicament and contingency. This quest for legalistic totality must and does infringe on established patterns of communal life. It is also producing a decayed regime that claims to protect everything, but fails to safeguard even life and property. For all his reckless overstatement (which, alas, Bondy needlessly exaggerates), one may say about Schmitt what he often said about Hobbes: “Magister, frustra non iam doces!’–“Master, you still do not teach in vain!’
[National Review, Â August 28, 1987]