Amerika

Schmitt’s political thought (Julien Freund)

 

Schmitt’s political

thought

 

Julien Freund

Carl Schmitt was what in German is called a Staatsrechtler, i.e., a specialist in public law (especially constitutional and international law). This is how he described himself. But he went beyond the confines of his discipline, asking questions about the global phenomenon of politics in terms of both its statist particularities and its general characteristics. This did not prevent him from also reflecting on the nature of law, as exemplified in his treatise on the three ways of conceptualizing it — as norm, decision and order, i.e., as a mode of behavior, a judgment, and a means of organization.[1] However, none of its modalities is exclusive of the others. Schmitt also tackled literary, religious, scientific, philosophical and other topics. This essay will be concerned primarily with the core arguments in his work –the political vision of a jurist.

Schmitt focused on the problem of the state because it is the modem form of political unity. This means the state is a historical construct which arose at a certain moment in history, was preceded by other types of political unity and is in danger of disappearing one day, to be replaced by a new type of unity. As such, the state is a specific political reality which should not be conflated with everything political in the sense of a universal and perennial institution representative of all past, present and future politics. Thus the Greek polis and the Germanic Holy Roman Empire are wrongly called states. One should not make the mistake of identifying the state and politics, as did many of Schmitt’s jurist contemporaries, who developed their idea of politics in the form of a general theory of the state. Here the opening sentence of The Concept of the Political is decisive: “The concept of the state presupposes the concept of the political.”[2] In other words, politics should not be explained in terms of the state; on the contrary, the state should be explained in terms of politics: “In one way or another ‘political’ is generally juxtaposed to ‘state’ or at least is brought into relation with it. The state thus appears as something political, the political as something pertaining to the state — obviously an unsatisfactory circle.”[3] Consequently, political literature provides many definitions of the state, some of which are pertinent, but only a few studies of the general phenomenon of politics.

There is no reason to find fault with the fact that jurists proceed in this way, since contemporary legal practice is compelled by the current state of affairs to refer to the state as the given institutional framework. Politically, the law in force is state law as defined by existing constitutional regimes and by various governments in power. It is therefore normal that jurists view social groups and associations in terms of their relation to politics and from the perspective of the state. Formulations of this kind “serve the needs of current legal practice. Basically they provide a practical way of delimiting legal jurisdictions of cases within a state in its legal procedures. They do not in the least aim at a general definition of the political. Such definitions of the political suffice, therefore, for as long as the state and public institutions can be assumed as something self-evident and concrete.”[4] This practice is no longer justified, however, when the jurist believes it possible to equate politics and the state, since the former irrevocably goes beyond the latter. In this case, “the equation state = politics becomes erroneous and deceptive”[5] simply because, even in modern societies, one can find political processes which are not statist.

 

Toward the “Total State”

As an historical configuration, the state has evolved since its appearance during the Renaissance. It has not remained unchanged since its first form — the absolute state of the 17th century. Under the influence of liberalism, in the 19th century it became a neutralizing instance. For example, it is still considered such with respect to social conflicts. Because of the predominance of technology today, this neutralizing tendency will continue to grow. In reality, technology is not neutral; by its very nature, the means are always at the disposal of the ends it serves. Thus the state accordingly utilizes technology as an instrument of domination.

More remarkable is the other evolution toward what Schmitt called the “total state.”[6] Contrary to some interpretations, this is not a theory of the totalitarian state but an observation about the tendency toward hyperstatism in the sense that the state increasingly intervenes in all domains -the economy, culture, etc. — in the form of a welfare state. It no longer deals only with politics but tends to invade all sectors of social life. Thus there is a risk of identifying state and society. In Schmitt’s view, even though this evolution might weaken the state, it is rooted in the state’s inability to remain a purely political institution. The total state is likely to be established in countries which tend toward “mass democracy,” even though the multi-party system opposes this tendency and acts as a break on the development of a totalitarian state of the Soviet or fascist type.

Schmitt’s theory of the total state is ambiguous because it leaves open both the possibility of a political weakening of the state and of its reinforcement. The tendency toward the total state can be characterized by the monopolization of power in the hands of a single party or by the invasion of all society by a social and tutelary state under the cover of an increasingly interventionist democracy. This is why Schmitt’s adversaries were wrong in characterizing him as an apologist for the state and in claiming he believed there should always be more state. His position seems to have been that of a defender of a politically strong state, fulfilling its state duties, not dissipating its power in non-political activities. The very fact that Schmitt saw in the state an historical configuration which, like any other political constellation, can disappear someday, refutes this interpretation. Even though the state is at present ubiquitous in society, it cannot be the last word in politics since it presupposes politics. However, as soon as the state constitutes the basic political structure it is essential it be allowed to play its role properly instead of becoming impotent by extending its powers to domains it cannot handle. In my conversations with Schmitt, he frequently used words like “unterwuhlt” and “unterminiert,” meaning not only that state authority was being sapped from below, despite its apparent omnipotence, but that an obstructing apparatus was gradually dislocating it.

Schmitt was no liberal; no one ever considered him one. Thus it is necessary to clarify his conception of things. In his 1930 study on the problem of the internal political neutrality of the state[7] he indicated that in modern industrial society, where economic questions generally determine domestic and foreign policies, the liberal doctrine of the neutral state (limited to diplomatic and military functions) is an anachronism, primarily because liberalism encourages all kinds of free associations. Given the strength of unions and workers’ alliances, social conflicts were no longer pursued solely in the economic arena. They had become so political that it would be inconceivable for the state to give free reign to associations which contested it politically. Schmitt also objected to theories (such as Harold S. Laski’s pluralist theory of the state), which advocate the depoliticization of society on the pretext that the state is only one association among others, with no specific responsibility or statutes other than those common to various economic or cultural associations. Toward the end of The Concept of the Political Schmitt writes: “Economic antagonisms can become political, and the fact that an economic power position could arise proves that the point of the political may be reached from the economic as well as from any other domain. The often quoted phrase by Walter Rathenau, namely that the destiny today is not politics but economics, originated in this context. It would be more exact to say that politics continues to remain the destiny, but what has occurred is that economics has become political and thereby the destiny.”[8]

Schmitt’s idea can be summed up as follows: the state is the ultimate political instance, indispensable for any real society. As such, it has the duty to intervene wherever politics is challenged by religion, art or the economy. If it intervenes in the economy, the state need not do so as an entrepreneur with economic authority but as a political agency which today the economy solicits constantly. In other words, while politics is not supposed to substitute for the economy, it is still incumbent upon the state to intervene politically if the situation demands. Were the state to intervene in the economic and social spheres as if it were itself an industrial or a charitable organization, it would risk its own power by dispersing its energy. Similarly, it shows its strength when it takes the necessary political decisions in economic and social affairs as the situation demands. Schmitt also took this occasion to attack the moralism of liberal thought when it accuses the state of being an instrument of violence or the product of vice. On the contrary, the state fulfills an ethical function since it protects citizens, as Hobbes taught, against the violence of civil wars and the threats of external enemies. Thus Schmitt stressed the prerogatives of the state, which must assume political responsibility without yielding to the superstition of the onmivorous state. Thus to understand the reality of the state means thinking of it not only in legal terms but also in terms of the clearest possible concept of the politics upon which it rests.

 

The Criterion of the Political

The Concept of the Political is not an attempt to define the essence of politics, only to find a criterion — a conceptual marker — to identify the phenomenon of politics. This criterion is the distinction between friend and enemy. It is not a question of elaborating a theory of ideal politics but of learning from experience that ever since men have practiced politics they have organized as friends within a particular community (tribe, polis, empire, state) and tried to preserve their identity against the threats of those who might want to destroy it. A people exists politically if it constitutes an independent political unity and in the name of this unity opposes itself to other kinds of unity. The main features of this Schmittian analysis are sufficiently well known. Here it is more fitting to explore its implications.

a) The dichotomy friend-enemy is not just a criterion for foreign policy. To the extent that they are political, domestic political concepts are also based on the distinction between friend and enemy, without which they would have no polemical significance. A republic or a democracy, however understood, are opposed polemically to other regimes, such as monarchy and dictatorship. There was nothing political in the social problem when it was limited, as in the past, to the charitable assistance of indigents, the disinherited and the sick. It became political once it developed into a confrontation based on the opposing demands of two camps or classes. Religion becomes political when it opposes another religion or when two ways of understanding the same religion conflict, as in the religious wars of the 16th century. Much has been made of the irenic respect for the notion of humanity. But “to confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.”[9] Ultimately, the concept of humanity criminalizes a conflict — from the legal viewpoint, the enemy becomes a criminal. Politics is universal in the sense that it obtains everywhere. But in terms of its principle, it implies a pluriversum — a plurality of particular and independent collectivities or of divergent interpretations of the same universal idea (such as peace or happiness) without which enmity is not possible. As soon as the proletarian class is opposed to the bourgeois class, the conflict becomes irrevocably political — even if the goal is to destroy the state: “Should the proletariat succeed in seizing political power within a state, a proletarian state will thus have been created. This state is by no means less of a political power than a national state, a theocratic, mercantile, or soldier state, a civil service state, or some other type of political entity.”[10] This even includes the notion of being apolitical, which becomes political when used to discredit or destroy one’s adversary.

b) The dichotomy friend-enemy provides politics with its existential dimension because it poses the problem of life and death when it becomes bellicose. “The friend and enemy concepts are to be understood in their concrete and existential sense, not as metaphors or symbols, not mixed and weakened by economic, moral, and other conceptions.”[11] They determine the existence of a people or a state: “For as long as a people exists in a political sphere, this people must, even if only in the most extreme case — and whether this point has been reached has to be decided by it -determine by itself the distinction of friend and enemy. This is the essence of its political existence. When it no longer possesses the capacity or the will to make this distinction,it ceases to exist make this politically.”[12] Enmity can be actual in the case of a direct conflict, virtual or potential when the necessary measures are taken to safeguard political existence. “An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity.”[13] Thus war is only the extreme case of opposition between friend and enemy. This opposition arises as much in diplomacy as in police actions to maintain order: “It is by no means as though the political signifies nothing but devastating war and every political deed a military action, by no means as though every nation would be uninterruptedly faced with the friend-enemy alternative vis a vis every other nation. And, after all, could not the politically reasonable course reside in avoiding war? The definition of the political suggested here neither favors war nor militarism, neither imperialism nor pacifism.”[14] This means that in politics one must reason by considering the eventuality of possible struggle or the hypothesis of conflict.

c) The distinction between friend and enemy is. specifically political. It cannot be confused with economic competition or differences of opinion. It is even useless to appeal to morality when the enemy has decided to fight against it. Yet it would be wrong to conclude that moral, economic, religious, aesthetic and scientific distinctions and disagreements are completely foreign to politics. On the contrary, they become political when opposition is so intense that it ultimately separates adversaries into friends and enemies. Here is an example from biology. The purely scientific controversy pitting Lyssenko against his colleagues became political when it reached the degree of intensity which led the Soviet government to exterminate physically those who contradicted Lyssenko. This process no longer had anything to do with scientific objectivity. Thus the shift to the political refers to the “the intensity of an association or dissociation of human beings whose motives can be religious, national (in the ethnic or cultural sense), economic, or of another kind and can effect at different times different coalitions and separations.”[15] The reasons for and the grounds of opposition are of little importance: opposition becomes political if regrouping becomes a prelude to a test of strength.

d) The political relation is between collectives, not individuals. There is nothing political in homicide, which is only a criminal incident, except, e.g., in the case of a terrorist assassination which attempts to destabilize a group or collectivity. Here Schmitt proposes the distinction between the private and the public enemy. He discusses certain passages in the Gospel, from Saint Matthew or Saint Luke, often cited in support of a doctrine of political peace, which admonishes love for one’s enemies. This love does not extend to members of another political community, only to those of one’s own, brothers or neighbors, with whom there is direct contact even though there may be personal hatred. The two meanings of the word “enemy” –inimicus and hostis –should not be confused. The Gospel can be invoked in favor of pacifism or a political doctrine of peace only at the cost of distorting the meaning of words. The Gospel refers only to the private enemy, with whom one is personally acquainted, not the public enemy, who may not be hated even during a fight. The Gospel doctrine “certainly does not mean that one should love and support the enemies of one’s own people.”[16]

This analysis of the configuration of friend and enemy reveals that all politics is fundamentally polemical, i.e., it implies a permanent struggle which takes the form of war only in exceptional circumstances. It follows that the state of peace is also characterized by tensions, rivalries and antagonisms which do not, however, take the form of armed conflict. Although pacifism presents itself as a doctrine of peace, it is polemical inasmuch as it fights a battle predicated on a distinction between those who militate in favor of peace and those who endanger it. There are others who invoke equally seductive ideas in order to justify their struggle, such as generosity, solidarity, justice, equality, etc. It is only possible to become aware of these manipulations if one refuses to be held captive by normative ideality, considering only what really happens. Here Schmitt insists on the equivocal character of most modem political ideas. On the one hand, they present themselves as apolitical, as belonging to morality, law or culture; on the other, they are part of the political struggle in a kind of clandestine way. “All confusions of this category of friend and enemy can be explained as results of blendings of some sort of abstractions or norms.”[17] Given its imprecise meanings, politics plays on both levels: at times it presents itself directly as politics, at others it uses circuitous means which tend to erase all political intentions. Thus one tries to neutralize and depoliticize citizens in the name of all kinds of “purities,” in order to more easily recruit them politically by making them feel good.

 

Proliferation of Indirect Powers

A distinction Schmitt frequently mentions in his writings without, however, devoting any particular chapter to it is that between the potestas directa and potestas indirecta whose protagonists were, according to Schmitt, Hobbes and Ballarmin respectively. In any case, this distinction is found in his famous ‘”Hobbes-Crystal.”[18] By indirect power, Bellarmin meant the power of the pope, who did not exercise his authority directly on subjects by means of command and obedience, as did kings and emperors, but acted through recommendation, caution and interdiction. Thus there is no question here of what today are called “secret services.” Schmitt returned frequently to this distinction during our discussions in Plettenberg, extending indirect power not only to the influence of different churches veiled by religion but also to many cultural and educational associations, etc. which, under cover of flattering ideas, distill by insidious means an ideology meant to obtain the good faith of those who listen to them. He was worried about the current proliferation of these indirect powers, which give a false impression of politics, sap state authority from below, and end up destroying prevailing attitudes, eventually even society itself.

In view of the dissemination of these indirect powers, Schmitt had no illusions about the way his analyses were received. He knew people were trying to discredit him precisely by invoking the humanitarian and benevolent ideas of peace, law and morality. “The political adversaries of a clear political theory will, therefore, easily refute political phenomena and troths in the name of some autonomous discipline as amoral, uneconomical, unscientific and above all declare this — and this is politically relevant — a devilry worthy of being combated”[19] The political reality remains: all these adversaries think in terms of friends and enemies. In their edifying discourses, their talent consists in denying the political enmity which lies at the root of their rhetoric. They speculate on the fact that men are more inclined to accept repeated slogans than positive analyses or, as Schmitt put it, they “cherish the illusion of an unthreatened peace.” Reality, however, cannot be denied. If a people allows itself to be seduced by the dental of the enemy it is thrown headlong into political non-existence: “It would be ludicrous to believe that a defenseless people has nothing but friends, and it would be a deranged calculation to suppose that the enemy could perhaps be touched by the absence of a resistance. No one thinks it possible that the word could, for example, be transformed into a condition of pure morality by the renunciation of every aesthetic or economic productivity. Even less can a people hope to bring about a purely moral or purely economic condition of humanity by evading every political decision. If a people no longer possesses the energy or the will to maintain itself in the sphere of politics, the latter will not thereby vanish from the world. Only a weak people will disappear.”[20]

 

Some Salient Themes

Schmitt’s originality is found in his will as a jurist to examine the state in terms of its political characteristics without, however, neglecting law. To do this, he varied his approach, enriching juridical perception with political analysis. He focused on dictatorship as much as parliamentarian-ism, democracy and the representative system, i.e., on the political and legal aspects of any constitution, on decisive concepts in the statist structure of power, on legality and legitimacy, on sovereignty, on the ideas which animate or once animated political life: romanticism, Marxism, Catholicism, Nazism. Thus Schmitt was interested in political writers -Machiavelli, Rousseau, Maistre, Tocqueville, Proudhon, et al. But above all he contributed to the rediscovery of Hobbes and Donoso Cortes.[21]

Sovereignty is a key concept for the modem state, even though today this is being challenged. In any event, the first theorists of sovereignty, Bodin and Hobbes, were also the first theorists of the modern state. Fore-seeing the crisis of the modem state, it is understandable that Schmitt devoted one of his early works to this problem, first in an article which appeared in a collective work published in honor of Max Weber, his former teacher, then in a more substantive work, Political Theology: Four Chapters on the Concept of Sovereignty.[22] The title itself is already very revealing in that it associates sovereignty with theology and politics. Political theology was a constant preoccupation, as can be seen by the last work Schmitt published during his lifetime. [23] Finally, many contemporary criticisms of sovereignty all too quickly rebuff the political problematic it engendered. Were they not related to sovereignty, it would be impossible to understand the concepts of nation, national independence, self-determination, non-interference in the affairs of other states, decolonization, the demands of ethnic minorities, and by extension, federalism or supra-nationality. This failure to appreciate sovereignty results from a certain narrow-mindedness which conceives it only in terms of public law.

Schmitt broke with this trend by ascribing political significance to the juridical concept of sovereignty, thus reestablishing the broken links with the tradition of Bodin and Hobbes. He claims: “Sovereign is he who decides on the state of exception.”[24] The whole definition rests on relating “decision” and “state of exception” which, given the nature of law, jurists tend to ignore. If this exclusion conforms to the spirit of the law, it does not conform to the historical course of things. For Schmitt, Hans Kelsen typifies the trend toward the imperialism of law. Was he not the author of a theory of pure law, of a theory of law conceived for itself, which cleanses legal thinking of any extra-legal contamination? Schmitt countered that law does not generate itself, nor is it generated by jurists but by a political will outside law. The pure theory of law is intellectually seductive because of its ideality in legal matters, but it does not account for law’s creation, its validity or its vocation in society. The juridical domain is objectively given, but only because there are scientific analyses of existing law. In this case, one forgets that jurisprudence deals with law as given, while the politician does not legislate on the basis of scientific considerations but in terms of social contingencies. Thus Schmitt constantly reiterates Hobbes’ dictum: auctoritas non veritas facit legem (authority, not truth, makes law).

Even a state based on law never functions according to the prescriptions of pure law, for the simple reason that it is compelled to fulfil ever its political obligations. These exigencies obtain whatever its stripe: liberal, socialist, conservative or progressive, provided it does not want to be overthrown. The concept of sovereignty strikingly emphasizes this because it raises the question of politics in extreme situations, when law does not provide clear direction. Accordingly, if I understand Schmitt correctly, different politicians are either audacious or impotent depending on the works they read, i.e., depending on the legal, political, economic and scientific writings which influence their choices or encourage them to reflect on their behavior. The devil is one face of the divine or, in the language of secularization, the sacred.

Despite constitutional dispositions concerning the state of emergency or the state of siege, as well as the possibility of legislation by decree, these procedures are not exceptional situations in the full sense because they can be legally foreseen. By its very nature, the exceptional situation is politically and legally unpredictable: it arises spontaneously during the course of events, such as capitulation after a lost war. What legal texts direct political will or simply clarify it in such cases? In every case, the exceptional situation is unprecedented and cannot be defined juridically. While there are always exceptions, they always occur in a different context. These observations are the strengths in Schmitt’s analysis. For a jurist, the exception can only be a disturbance which should not happen. Politically, however, it brings about a critical situation which must be handled at all costs. It is not a matter of legal gaps which can be filled with appropriate dispositions but rather of a lack of power, of the law’s inability to be constitutive. Since the exceptional situation demands not a norm but a decision, it is imperative to recognize that, no matter how good a jurist one may be, there are all kinds of extra-legal spheres –political, economic, religious, scientific etc. — that refer to their own norms (only secondarily to legal norms) and regulate disagreements or conflicts within these spheres. A scientific problem must be resolved scientifically.

The exceptional situation is characterized precisely by the fact that it cannot be handled through norms: this is what makes it an exception. It is “that which cannot be subsumed.”[25] Moreover, it is important to handle the exception “for a legal order to make sense.”[26] Legal theories of sovereignty assume law can suspend itself within the confines of preestablished norms. In fact, the exceptional situation suspends law and all its normative presuppositions. Consequently, one must recognize that law has limits — a legal order is not necessary for the creation of a new law. In this case authority, i.e., political decision-making, is tantamount to legislating. The notion of sovereignty only confers authority on authority. It is easy to understand why Kelsen, who thought only in terms of preexisting norms asserted “the concept of sovereignty should be abandoned.”[27] He was simply a pure jurist for whom law, rather than the state, is sovereign. Like the most general concepts, however, the basic norm cannot contain everything if one understands by this that decision-making is reduced to a simple deduction from preexisting norms. The exception illustrates that not everything is predetermined in the politics of a state. There is at least a margin of indeterminacy for which political decision-making must be held accountable in the absence of adequate normativity.

Although not explicitly spelled out by Schmitt, a decision taken contrary to the norms of a given order to establish another one must not be confused with a decision whose verdict reestablishes the normativity disturbed by the exception, sometimes by introducing new norms. This decision may not be objective with respect to existing norms, but the order it determines will become objective from the perspective of positive law. If the state refuses to make a decision in an exceptional situation, it runs the risk that other forces will make one in its place and establish their own norms. This is what happens during a coup d’etat, a revolution or a rebellion if the coup d’etat fails. Schmitt says: “The decision becomes instantly independent of any argumentative substantiation and acquires an autonomous validity.”[28] This does not mean that any decision will necessarily be good or effective. If it does not correspond to what is required by the given situation, it will be defeated by a more opportune one. All moral, legal, economic or scientific precautions are impotent in the face of the urgency to make a decision. If Schmitt agrees with Rousseau in recognizing that the sovereign will can do what it wants, he rejects the idea that it can never behave badly or wrongly. It is not clairvoyant. Sometimes making a decision, even an inadequate one, prevents an exceptional situation. In other words, the decision can be more important than its content. It is not that Schmitt disdains the norm, only pure normativism which does not take decision-making into account. In fact, as he shows in his treatise on the three ways of conceptualizing law, order is the result of a mediation of norms and decisions.

 

The Law May be Silent

The norm represents continuity; the decision is timely. In the case of sovereignty, however, the decision is the final recourse in the discontinuity and rupture introduced by the exception. The latter provokes and overturns, which is why one hopes that an exceptional situation never occurs. The jurist tends to privilege norms because they are conservative in nature — especially because they have the advantage of being impersonal and apparently objective whereas the decision is personal and apparently subjective. Yet exceptional situations do arise. Schmitt states: “Whether the extreme exception can be banished from the world is not a legal question.”[29] The law may be silent. For philosophical, moral or ideological reasons, one may hope no decision will ever have to be made, but those who provoke the exceptional situation are not concerned with abstract wishes. Terrorists do not ask passengers on a plane if they have the right to highjack it. The law can anticipate who normally holds sovereignty, who is subject to it, but it cannot say in advance who is in charge in the case where no authority has been established any more than it can explain the will of whoever decides in this situation or provide directives. All this is the business of the decision made on the spot to meet the needs of a given situation. In the final analysis, legal dispositions hold for current situations which they rightly normalize. It is in this sense that most constitutions formally specify that sovereignty resides with the people. The exceptional situation calls this very sovereignty into question because, ultimately, it is characterized by a conflict between two sovereignties, the one in place and the other aspiring to replace it. In this situation, the sovereign is the one who makes a decision to resolve the conflict to his own advantage. As with all politics, conflicts have to do with power relations: in normal situations, these relations are stabilized; in exceptional ones, they become explosive.

In politics, things happen as follows: the one who wins a conflict between sovereignties reestablishes order or sets up a different one. Ex post facto, he relinquishes the momentary power he exercised as sovereign in solving the conflict and generally gives it back to the people, formally recognized as the legitimate sovereign. The conceptual strength of Schmitt’s definition is immediately obvious. While legal definitions are inflexible, often abstract and fictitious, the one he proposes is eminently political. In fact, it closely follows empirical reality. In concrete cases sovereignty is flexible because it sometimes has to define itself or vacillates between the formal and serene sovereign who obtains in normal situations and the effective one in exceptional cases who decides in the last instance. No law can say whether an exceptional situation must happen, can happen, or when, nor can it determine the authority of who will decide in the last instance. In this case, as in the exceptional situation, the decision is a question of the moment which cannot be legally “transcribed.” One may regret this, just as one may deplore the damage caused by a cyclone, but the norm cannot stop the cyclone.

The problem of decision remains the background in Schmitt’s study on legality and legitimacy,[30] but from another perspective. Although in the very first sentences Schmitt explains that he does not want to intervene in the political crisis shaking Germany, this crisis remains latent like a shadow across the pages. The general theme is the anguish of liberal politics in the 19th century. He analyzes this in terms of the legislative state in contraposition to the jurisdictional state (which privileges judges’ verdicts) as well as the administrative state (dominated by functionaries or the bureaucracy). In reading the text today one is struck by the foresight of Schmitt’s observations, which prefigure today’s situation.

To understand how the liberal representative system went astray, it is helpful to recall the ideal it sought to realize and the convictions behind it. Its proponents were convinced that, if they could not succeed in eliminating politics completely, they could at least reduce it to a few secondary functions. To this end, one had to have absolute confidence in law — the only thing worthy of rule, an act of enlightened reason rather than blind and arbitrary will. Liberals did not intend law as a particular disposition meant to regulate evolving situations but as a general and impersonal norm advancing human progress. Thus the source of law was to last forever. So understood, the goal of law was to develop an immense rational and universal system of norms able to predetermine the future.

 

On Law and Universal Norms

These general norms and universal laws, rather than particular norms or individuals, would govern. In other words, particular norms would not be the mere outcome of legislative acts but the special application of these general norms. The result would be a closed system of sovereign legality, needing no legitimacy because it would not be grounded on any presuppositions. It would be automatically legitimate, fulfilling the desires for peace, freedom and justice. Later conceptualized by Max Weber as one of the three types of legitimacy (in addition to the traditional and the charismatic), legality here is legitimacy. Legality and legitimacy coincide. Consequently, law requires no control since it is necessarily good as the concrete application of a general system of norms.

Until the ideal is realized, the authority of power must find a substitute in the free debate of parliamentary legislators, who have no other concern but to redeem, by the light of reason, the paths most apt to lead to a general system of norms, thanks to the totality of legislative acts accumulated in this fashion. Proponents of this doctrine went so far as to cherish “the illusion. . . that one could find a legal way and a legal procedure for even the most radical and revolutionary aspirations, goals and movements without recourse to violence or upheaval — a method that would simultaneously provide order and yet be functionally ‘value-free’.”[31] The rule of general norms was thus conceived in quantitative terms, not only as accumulated progress but also as debates between the majority and the minority in parliament. However, this latter distinction lacks substance because it deals only with discussions concerning the best methods to realize goals with which everyone supposedly agrees: “The state is law, law is the state,”[32] meaning that the empirical characteristics of politics (such as power, command and obedience) or the enemy could be eliminated. Men would bow spontaneously to such a regime without really obeying, to the point where all rights to resistance could be abandoned.

Schmitt’s criticisms are first and foremost theoretical. Can law, as a legislative act, ground a system of universal norms? In fact, law is not without limits because it is not possible to legislate on everything, and not everything can be subjected to a norm. Some areas fall outside legality and are even resistant to it. In any event, law cannot be reduced to the totality of laws as assumed by the legal positivism underlying liberal thought. Apart from classical natural law, there is common law, which liberalism wrongly considers retrograde. Whatever the case, neither laws nor norms constitute the whole of law. The idea of a presuppositionless legitimacy is just as debatable. Liberal doctrine presumes a harmonious and preestablished congruence between law, legality, justice and freedom, as if human relations are not subject to constant contradictions, tensions, obstacles and conflicts. The freedom this doctrine recommends would, in the long run, be exercised in a vacuum, outside the obstacles which require struggle in order to guarantee freedom. Is it true, as liberalism supposes, that everything would be better under a benevolent progress which would in principle establish peace and eliminate the authority it sees as the cause of social problems? Finally, liberal thought believes the people’s representatives are necessarily devoted to the public good because they have been elected by the people (itself necessarily innocent and good) so that all legislative control proves superfluous.

This ideal, noble in its intentions, does not correspond to historical experience. Resistance and opposition have not come only from the adversaries of liberal thought but also from within it, from its practice, because politics cannot be conducted by pretending to ignore the inequalities inherent in it. Some of Schmitt’s criticisms may seem minor because they find support in everyday situations, but they are not for this reason any less embarrassing because of that. Consider some examples. Once power has been acquired legally, nothing guarantees it will be exercised legally and that the legality in force will not be transgressed not only by authoritarianism but under the pressure of daily obligations. This theme recurs so often in Schmitt’s work that his adversaries sometimes call him an “occasionalist.” It is not altogether impossible that this accumulation of laws may modify, by its very mass, the system’s original outlook. Corruptive time must be reckoned with. In any case, history has not confirmed the decline of the will in favor of reason. Rather, the opposite seems to have happened: authority has shown itself to be indispensable. In addition, states have been forced to create a control for legislative acts — in the form of constitutional courts or state councils — in order to counteract the incoherence of legislators and to guarantee their faithfulness to the norms they themselves established. In any case, liberals were confronted by the force of circumstance with normatively unpredictable and exceptional situations which contradicted the logic of the system and obliged it to take other than purely legal measures. One need only consider the means used by a majority to block the action of the minority. The latter is often only a formal partner in parliamentary debates, given that the opposition often appears as a political enemy whose aim is the liquidation of all liberal ideas and freedoms. Schmitt’s whole work is sprinkled with reflections of this kind, sometimes by mere allusion and sometimes in a more sustained fashion. However, the main objective of his criticism is the general development of contemporary politics — a development which weakens the speculations of liberalism.

a) The idea of law has lost its former prestige: it is no longer inscribed in a system of norms but in changing circumstances. Today one seldom legislates in order to edify a temple of norms because what is essential is immediate utility. Consequently, the idea of law has deteriorated through trivialization. Many factors have played a role in this. Increasingly, parliamentary majorities are no longer simple majorities but coalitions between parties whose compromises, indispensable for cohabitation, supersede the rectitude of law: “The momentary will of a given parliamentary majority has long been based on a compromise between thoroughly heterogeneous political organizations, and parliament has become the theater of a pluralist system.”[33] These debates have lost the character of free discussion about the best ways of promoting the public good and have become increasingly more or less confused attacks of opposing camps with the aim either of weakening the ruling government or of supporting it, provided only that parliamentarians abandon their innermost convictions. They degenerate into polemics and shouting matches. Thus the relation between majority and minority has assumed a new form. Schmitt insists on what he calls the majoritarian “premium,” which he defines as a “superlegal premium based on the legal holding of legal power.”[34] By this he means that the majority party which exceeds the threshold of 50% enjoys a superiority which can endanger the country’s established legality. The premium consists in the 1% or more which exceeds the threshold so that the majority can change the rules of the game, overthrowing society and establishing another system of reference against the 49% minority even against the opinions of most citizens. Here it is unnecessary to cite historical examples. On this point, Schmitt recalls the classical distinction between the tyrannus absque titulo (the illegitimate usurper of power) and the tyrannus ab exercitio who, in his exercise of authority, legally abuses power by profiting from the majoritarian premium in order to impose his partisan views, often by monopolizing power through intrigues or other more or less trustworthy maneuvers.

b) The degeneration of law is also due to other factors. Law has been trivialized not only by a prolific accumulation of legislative dispositions dealing with anything and everything, but also by the proliferation of non-legislative dispositions which have the force of law because they entail constraint. These are the innumerable regulatory measures, decrees and other ordinances. Schmitt insisted at great length and on many occasions on this short-circuiting of legislature because it endangers one of the basic principles of liberalism: equality before the law. Not only is the discretion of authority thereby reintroduced surreptitiously, but legal equality is destroyed: “There is no ‘equality before the decree’ as there is ‘equality before the law’.”[35] It would be ridiculous to claim that opportunity could play the role of law. Schmitt explains: “Obviously, it would be grotesque to proclaim and execute the verdict of a tribunal in the name of a decree instead of in the name of the king or the people or the law, or to swear someone in with measures of this kind.”[36] What does legality mean if non-legislative ordinances have an authority analogous to law? Is this not a case of extra-legal — thus extraordinary and possibly exceptional –options resulting in a breach in the legalist system of norms? At any rate, the legal normality of the liberal ideal is in the process of losing credibility with this increasingly frequent recourse to regulatory measures and decrees.

c) The accumulation of non-legislative regulations undermines the legalist monopoly as the source of legitimacy. The problem of legitimacy has been displaced. It is no longer a question of the old conflict between monarchy, aristocracy or democracy, but of a competition between various models of the state structure: parliamentary state, jurisdictional state, administrative and bureaucratic state. Here that the fate of the state plays itself out. Schmitt emphasizes the advantages enjoyed (rightly or wrongly) by modem technology or, in more contemporary terms, by technocracy, to the extent that the latter is no longer merely bureaucratic but intervenes directly in the functioning of the state and its decisions. Technology plays the role of an axiologically neutral functionalism; it presents itself as pure instrumentality endowed with competence to the point where it can pass itself off as “non-political politics”; in contemporary parlance, as politics without politicians. It is almost self-evident that it would find its legitimacy outside parliament, in another kind of rationality — the prestige of efficacy and competence in a world increasingly complex and irreducible to a general norm. At the same time, it rehabilitates elitism while laying claim to the liberal egalitarian principle, especially the equality of opportunity.

 

The Rise of Referendum

d) Nothing speaks more powerfully to this point than the fragmentation of closed legislative legality and the diffusion of sources of legitimacy resulting from the increasing popularity of plebiscites or referenda as opposed to parliamentary institutions. From 1932 on, Schmitt considered this the major political tendency in the contemporary world. This is a rupture, full of new conflicts, which signals the end of the liberalism of the last century. In fact, the difference between the parliamentary system and the system of plebiscites or referenda is insurmountable. Referendum imbues a momentary will, affirmed on the spot, with a legitimacy which liberalism cannot question since it expresses the immediate will of an entire people. This is not the case in parliament, which is elected for a determinate length of time and can revise previous decisions. In these circumstances, parliament appears as the ordinary legislator concerned with current affairs, whereas referendum introduces an extraordinary and singular legislation. If parliament can claim continuity in a rational process, referendum gives priority to the discontinuity of will assembled in the expression of an immediate and irreversible decision. In fact, referendum is an irremediable decision-making device which urges caution on those who want to use it. Failure in a referendum is a condemnation, so to speak, whereas a vote of no confidence in parliament can be compensated. On the one hand, there is a choice (Wahl) which is unique, decisive and irreversible; on the other, there is a sorting out (Auswahl) of different opinions which then can be accommodated in various ways. Referendum only accords validity to a single response, given that “the question can only be asked from above and the answer can only come from below,”[37] whereas parliament can tergiversate, send the issue back to a commission and bide its time. In this case a decision may not even be taken and a compromise may be found. Conversely, referendum is a decision, as the German term Volksentscheidung indicates.

According to Schmitt, this is an “intermediary situation” characterized by the coexistence of two legitimacies: one, parliament; the other, referendum. It is necessary to recognize that since the last century politics has developed in the direction of a refusal of the general system of norms as the only source of legitimacy. The new way of thinking tends to juxtapose “the system of parliamentary legality and plebescitary legitimacy.”[38] This situation is obviously rife with conflict, depending on whether one privileges the norm or the decision. Whatever the case, the liberal system of the 19th century gave birth to a “pluralist splintering”[39] which paralyzes the state because compromises between political parties substitute for law and are negotiated to their benefit with no consideration for the hierarchy of urgencies and priorities. In this turn of events, the state has become a mere “social configuration” which ignores the imperatives of politics and dabbles in everything but what is essential. In this connection, Schmitt again mentions evolution toward the total state, which is impotent because omnipresent in society: “A pluralist state composed of parties becomes ‘total’ not out of strength but weakness; it intervenes in all spheres of life because it must fulfill the demands of all interested parties.”[40] Incapable of satisfying everyone, it pretends to succeed by inflating the bureaucratic administration entrusted with responding to all these demands. Schmitt was not taken in by his own statements about referenda. He remarked, with a certain bitterness: “Legality and legitimacy then become tactical instruments used by anyone who finds a momentary advantage in them. . . . Neither parliamentary legality nor plebiscitary legitimacy, nor any other conceivable system of legitimation can survive such a degradation (of the state) to a technical-functional instrument.”[41] In the final analysis, Schmitt was not so much arguing for the state as for the restoration of politics, its prerogatives and limits.

Schmitt favored the establishment of referendum as an institution, but not as a purely plebiscitary system. Remember the model: order requires norms and decisions, which means a purely decisional system is as absurd as an exclusively normative system. In this sense Schmitt was never a doctrinal liberal, since for him the decision is as regulatory as the norm. He was simply not doctrinaire. Since any doctrine invites dogmatism, he paid attention to situations. Conversely, given the imperatives of politics, he supported regimes which guaranteed all possibilities for free expression. If he was in favor of referendum, it was not only because he believed it restored the right to choose and make decisions vis-a-vis the uniformity of rationalist legalism, but because it gave a place to freedom against the closed system of normativist legalism. The latter tends to sacrifice the flexibility of intuition to the rigidity of the norm. By its very nature, a situation is not normative; it calls for a decision likely to create other norms to master it. In Schmitt’s opinion, referendum offers the possibility of unblocking a situation and, if the occasion arises, of preventing the dangers of the exceptional situation, which generally occurs when the will to decision is lacking. All his work reflects this preoccupation, although for a time he was unfaithful to his own ideas and thereby tarnished his reputation.

At issue here is his position in 1934, particularly as expressed in his article “The Fuhrer Protects the Law.”[42] Schmitt’s failing was all the more surprising because, during discussions about new elections in 1932, he warned his fellow citizens against the “premium of the majority,” which ran the risk of allowing the Nazis to act in any way they wanted if they received more than 50% of the vote. In addition, the Catholic Party, led by the prelate Kaas, demanded that Chancellor Schleicher –Hitler’s adversary — dismiss his counselor Schmitt in order to facilitate negotiations with the Nazi Party. The above-mentioned article appeared the day after the “night of the long knives” in June, 1934. At the time Schmitt had good relations with the military officers on the General Staff who were worried about the direction events might take. He thought that by eliminating the SA Hitler would put an end to the exceptional situation prevailing since he had come to power and would then restore normal state law against the trouble-makers in his party. This was an illusion on Schmitt’s part and a sign of his failure as an analyst of internal German politics. When it came to Hitler, intentions were not enough.

 

International Relations

A violent article, full of threats against Schmitt, appeared in 1936 in Schwarze Korps, the weekly of the SS, which had won out against the party’s old guard. From then on, Schmitt, the specialist in public law, turned to the second branch of his concerns — international law because it had become too dangerous to deal with domestic politics. He was not on unknown ground here, since he had already published a few studies on the subject. But now he would devote himself to it, and did so until the end of his life. The major works of this period are: Die Wendung zum diskriminierenden Kriegsbegriff (1938), Land und Meer (1942), Der Nomos der Erde (1950) and Theorie des Partisanen (1963). The two focal points in this research are the theory of Raum (space) and the concepts of war and peace in modern European history. One cannot speak of a break between the two periods, since the major ideas in The Concept of the Political found another application. For example, Theorie des Partisanen has as its subtitle “Incidental Comment on the Concept of the Political.”[43]

Schmitt’s new inquiry concerned the notion of Grossraum (large space). To understand it, one must relate it to another concept: Ortung (orientation); the term “localization” is perhaps most appropriate, as long as one insists on the idea ,of place as a determinate spatially-bound region. It is a question of what Schmitt called Kleinraumigkeit (limited space). Thus in the Roman Empire and the respublica Christiana politics was confined to a restricted territory. According to Schmitt, “law is land-locked and has reference to land,”[44] at least in terms of its origin. At that time, the sea was regarded as a space without unity, order, law or a precise location: “On the sea there is no law”[45]; it was a free space. Again, he writes: “The great primal acts of law remain territorial orientations: land appropriations, the founding of cities and colonies.”[46] The triple etymological value of the term nomos (law, right) must be understood in this context: it means simultaneously nehmen (to appropriate, to occupy), teilen (to divide, to distribute) and weiden (to pasture, to produce).[47] From the beginning, political unity was territorial in nature; the sea was not a domain on which one could establish a politically-organized people.

The modern state, which arose in the 16th century, is the juridically rationalized form of this ordered space with the prerogatives of sovereignty and defined borders. Each state had the same rights, which made it possible to establish an international politics based on equilibrium. This was the foundation of the jus publicum Europaeum, the most typical examples of which were the Treaty of Westphalia and the Treaty of Vienna in 1815. War and peace were conditioned by this territorial recognition, which was legally protected. Wars of extermination were abandoned in favor of what Schmitt called gehegter Krieg — wars which are contained, limited and controlled. Every enemy was presumed to defend a just cause; the enemy was therefore considered a justus hostis — a legal subject with whom one could deal and negotiate once the test of strength constituting the limited war had decided the victor and the vanquished. Borrowing a phrase from Vattel and Proudhon, Schmitt called them “wars in form.” They ended in a peace treaty negotiated directly between the victor or victors and the vanquished, and all other states were obligated to respect such a treaty. This jus publicurn Europaeum was extended across the globe as new territorial discoveries were made, like the raya or demarcation line drawn between the Spanish and the Portuguese in South America, or like the amity line. In short, and without going into detail about the few difficulties with this doctrine, the idea that every enemy should be considered just, defending a just cause, signaled a “rationalization and humanization, in other words, a bracketing of war”[48] for several centuries. As cruel as any war may be, there was success in mastering it in relative terms and in giving legal substance to the notion of peace.

By contrast, the sea remained an undefined space, lacking any legal organization — a free space resisting any orientation to the state. Discussion focused in particular on the problem of whether it was res nullius (space belonging to no one) or res omnium (space belonging to everyone). England did succeed in becoming the maritime power with relative control over the oceans, but this did not call into question the received opinion about the sea. Since there was no real maritime state law, on the sea the enemy assumed another form. Thus the pirate (unlike the privateer) was not considered a just enemy but rather a criminal, who could not claim legal protection because he acted outside the law. In a global context, the European law of nations had two concepts of space: land-locked and maritime space, each with a distinct system of laws and a different notion of the enemy. Here Schmitt: “Land war in particular was legalized, whereby it became war between states, i.e., armed confrontation between the armies of the belligerent states. Rationalization for land war — rationalization in the sense of the fragmentation and evasion of the totality of war signalled the increasingly sharper division into wars between states, between state-organized armies, while sparing the civilian populations and private property. . . . By contrast, sea war in this order of international law is not a war of combattants; it is based on a concept of the total enemy.”[49] Schmitt indirectly suggests that land combat was a regulated struggle.

Today there has been a significant change in the nature of international relations with the slow disintegration of international European law. “Today the former Eurocentric order of international law is declining. With it the old Nomos of the earth is foundering.”[50] Another order is developing, but without any orientation. This is regrettable, because it leads to a separation between political and legal thought traditionally associated with order and orientation. Confusion results from the fact that no new conceptual means capable of grasping the situation have been developed. The idea of space assumes a different aspect, that of Gross-raum, which Schmitt saw as able to clarify the new situation. This upheaval threatens to bring about the decline of the state, precisely because the latter is grounded in the idea of territorial orientation. In fact, today there is a widespread Entortung — a kind of”disorientation,” which is disconcerting. So it is easier to understand Schmitt’s theory of the state, which is by no means statist. Schmitt writes that the state is a “time-bound and historically determined, concrete and specific organizational form of political unity which. . . . will probably come to an end along with the epoch of the state.”[51] The possible end of the state does not signal the end of politics; only the end of the “epoch of the state”

The disintegration of international European law proceeds together with a “planetary revolution,” which has not come about abruptly. The first harbingers are found in the French Revolution, which treated its adversaries as criminals, as enemies of the human race who should be exterminated, thus creating terror internally and waging devastating wars externally. At the beginning of this century, the disintegration of international European law suddenly accelerated — no longer on the battlefields, but in assemblies and juridico-political texts, with the benediction of the humanitarian pretext of intervening in international relations. Schmitt emphasizes three decisive moments. First, the Treaty of Versailles, which broke with the tradition of direct negotiations between the victors and the vanquished and which, unable to terminate hostilities, only licensed the suspension of military operations. Second, the League of Nations, founded on the idea that certain states have the right to decide which war will be just, resulting in the obliteration of the classical distinction between war and peace. Either one conforms to law and the actions taken no longer really constitute war, or one is outside the law and war becomes a crime. Finally, the Kellog-Bri-and Pact, which turned war into a mere police action, thereby criminalizing it — a kind of political exclusion of politics.

Other factors also intervened. On the one hand, space increasingly lost its fundamentally land-locked meaning once the possibilities offered by sea and air space became clean These spaces do not have internal borders, thereby eluding orientation and legal skill. At the end of Der Nomos der Erde, Schmitt focuses on air space, which displaces the idea of horizon and of a theater of operations. On the other hand, for humanitarian reasons Europe became absorbed with universalism on the pretext of eliminating all legitimate differences in oriented spaces. Schmitt questions not the philosophically grounded idea of universality but the confused doctrine of universalism. The ongoing “complete disorientation” thwarts juridical perception because it corrupts the idea of topos. This is illustrated in the utopian fad for abstractions located in a void, as in the nowhere or erewhon of English writers. In such a case, it becomes impossible to make a positive decision, rooted in oriented space and time; negative valuations become the only alternative. Universalism evades determination and orientation. By invoking the vagueness for which it stands, it encourages only attitudes “against” what exists, to the extent that only what is positive can be delimited, characterized or at least made precise. It is possible to think under the category of the universal, but it is impossible to act under that of universalism because action is inevitably inscribed in a determinate time and space. The concept of Grossraum reintroduces the indispensable boundaries necessary for political action.

 

Characteristics of Grossraum

Grossraum has nothing to do with Lebensraum (living space), frequently discussed at the time, nor with classical imperialism, such as that of England. Schmitt saw Grossraum prefigured in the Monroe Doctrine, which had no universalist pretensions. It concerned only American space, which it wanted to secure against any outside intervention. However, it is Schmitt’s reflection on the concept of Reich (as he thought Hitler conceived it) which provided him with the empirical rudiments of his theory. The problem is not one of knowing whether Hitler really had the ideas Schmitt borrowed from him. What matters is that they were the pretext for Schmitt’s construction. At first he believed race could be the coalescing factor in his new concept of space, but he abandoned this idea quickly enough. Grossraum is close to the idea of Reich without, however, being identical with it. To use a phrase which became popular after Yalta, it constitutes a block, i.e., a political magnitude whose influence extends beyond the limits of a state, especially in surrounding areas. It thus denotes a political power which transcends the boundaries of all the states it controls directly or indirectly and thereby creates another concept of international relations. In Schmitt’s words, it is a “hegemonic” power and, as such, considers its sphere of influence to be exclusive, protected from intervention by states outside this sphere and from any other potential Grossraum.

Internally, the dominant power organizes this sphere in a Leistungsraum — a space which determines the interest and behavior of the states living under its authority. Grossraum implies a specific cultural orientation, ideology, economic system, type of political and juridical organization as well as strategy neither regional nor universal, despite its theoretical pretention to universality. Schmitt defines it in this way: “Grossraum is a sphere of human planning, organization and activity deriving from a current and comprehensive developmental tendency.”[52] In this text, he also suggests that this sphere can comprise people of different origins, authorized to maintain relations with each other, but with no right to challenge the hegemonic power. The organization of this new space requires neither scientific validity nor technical or cultural competence because it results from a political will whose repercussions will modify the idea of international law. Once it is constituted, one must rely on the capacity of this immense space to “radiate.” Thus Schmitt is not referring to the past but to a potential development in world affairs.

The advent of these new spatial powers will have several consequences. The first will be the decline of the state and of the European order grounded on the idea of nationalities. The limited space of particular states cannot constitute a counterweight to the hegemonic power of a Grossraum. The classical state is destined gradually to lose its substance, especially its sovereignty, which from a juridical standpoint has been its major characteristic. The law within satellite states and even their legislative capacity (thus also their legitimacy) will be dependent on a new legitimacy which transcends them. Consequently, it is easier to understand the preliminary definition of sovereignty Schmitt formulated as early as 1922. It should not be understood juridically, in line with the model of theoreticians of the state, but rather politically, as a decision of last resort. Obviously the jus publicum Europaeum, founded on the independence and sovereignty of states within a more or less limited space, can only become precarious and, in the long run, obsolete. It is destined to decline, forced to yield to a new kind of international relations which will inaugurate another international law more in line with new constellations, each envisaging Grossraum in different ways. In other words, like the state, international European law is an historical product. It is not eternal, as it was assumed only a few decades ago. Schmitt adds that this development is not due solely to military successes or defeats but also to economic and social factors (if the internal side of Grossraum is taken into account) as well as universalist and humanitarian factors (if ideology is taken into account) which modify prevailing way of thinking.

 

Total War and “Bellicose Peace”

The new nomos of the Earth now taking shape will also alter the classical forms of war and peace. Already in 1938 Schmitt described humanity as moving toward an “intermediary situation between war and peace,”[53] a kind of bellicose peace no longer really war or peace. This second great revolution of space — after the revolution of the 16th century, which followed the discovery of America and found its juridical expression in the jus publicum Europaeum — not only changes the general perception of the cosmos but also political structures and the prevailing way of thinking. “Total war” threatens to replace limited war. The idea of total war must be understood in connection with the idea of the “total state.”[54] It will be total for two reasons: first, because it will no longer be limited to a battlefield, but will spread across the entire planet, including extra-terrestrial space; second, because it will not be just military, since all activities –scientific, technological, economic — and all of existence will be implicated directly in this gigantic conflict. Protected zones will no longer exist, since both military and non-military sectors will be engaged in the conflict. Politically speaking, there will no longer be a distinction between those who fight and those who do not.

For Schmitt, the problem is not one of being optimistic or pessimistic but of formulating conjectures and hypotheses as accurate as possible so as to prevent potential catastrophe. There are already many signs to this effect. Traditional structures, born with the state, are disintegrating. The system of international equilibrium between continental (European) states, assured by England’s maritime power, has already been dismantled. Two kinds of Grossraum confront each other, both of which have the unstated aim of ruling over the whole world and thus of universalizing the order they have established in their respective spheres. These powers share mutual deterrence without, however, being able to establish a juridically-based equilibrium. They are barely able to coexist. In addition, they rely on an expanding technology whose developments are hard to foresee. The main result is that technology has given precedence to air space, so the classical distinction between land and sea — the foundation of international law so far — has lost its significance. Air evades the very “orientation” necessary for a juridical construction. But without a juridical guarantee, what can the idea of order mean? Schmitt does not see what help the new nomos would receive from the regulation of air space — a regulation analogous to or borrowed from the law of the land or the sea. The race is on for conquest of new spaces — a colossal race toward unlimited space, whose juridification remains problematic.

Schmitt devoted the end of his life to analyzing the phenomenon of the partisan — a paradigmatic figure in the disintegration of the classical nomos and the beginning of bellicose peace. The figure is remarkable because it is still land-locked, which Schmitt calls its “telluric character.” Nevertheless, the partisan is an irregular — not a soldier but an armed civilian who thus embodies the non-military element in current conflicts. He is not worried about law or international conventions; he “seeks his right in enmity,”[55] turning his convictions into weapons, spurning all regulations, making use of terrorism and undertaking actions formerly considered criminal (such as hostage-taking). How can one legally regularize something irregular by its very nature? Marxism — mainly in its Leninist version — went so far as to invest the partisan with a humanitarian character, since in principle his struggle is intended to alleviate alienation and liberate humanity at the cost of physically exterminating an entire class. In other words, in the name of humanity one proclaims the opposing camp is not human and turns it into a “total non-value” in the hope that, if victory is complete, there will no longer be anyone left to call the victors criminals and monsters.

Apart from a few exceptions, international European law succeeded in containing war and in relativizing the concept of the enemy. “In a world in which the partners mutually and accordingly sink into the abyss of total devaluation before they are physically annihilated, new types of absolute enmity must develop. The enmity will become so terrible that perhaps it will no longer be possible to speak of an enemy or enmity and even all forms of both will be outlawed before the work of extermination can begin. The annihilation will then be completely abstract and absolute. It will no longer be directed against an enemy but will serve only an allegedly objective achievement of the highest values for which, as everyone knows, no price is too high. Only the denial of true enmity clears the way for an absolute enmity.”[56] European law recognized the enemy, but how can he be recognized when he is denied in advance? Is there a risk of imposing a nomos of the earth or just a nomos? Perhaps half of humanity will hold the other half hostage.

 

Strength of Mind

Criticisms of Schmitt have been voluminous, often violent, sometimes directed against his person, sometimes against his work. There are two ways of approaching Schmitt’s works: either taking into account the context in which they were written, the author’s personal positions, his vacillations and sympathies, which themselves changed; or by focusing on the strong points in his thought without reference to particular circumstances. The first approach is all the more legitimate because Schmitt defended interpretations related to concrete situations. This procedure, however, is only possible within the framework of a long and exacting study, since it would have to be supported by extensive scholarship, and this is beyond the scope of a succinct study such as this. This is why many of Schmitt’s works have not been mentioned –works which would have allowed his ideas to be considered at greater length. The second approach has been followed because it emphasizes the originality, strength and acuity of his mind and thus the ideas which can enrich knowledge, whereas situations and circumstances of personal life only serve to expand the field of the history of events. Plato’s fame does not rest on his failure as a political counsellor to Denys of Syracuse, and Bodin’s does not rest on his scheming during the religious wars.

Schmitt is reproached for remaining conceptually unclear in his concept of Grossraum, of not having elaborated systematically the political and juridical theory behind this idea and of contenting himself with approximations filled with uncertainties. It is primarily the definition of Grossraum in his study on Raum and Grossraum[57] that is called into question. These criticisms do not take into account the important phrase “developmental tendency,” which is included in this definition and gives it its full significance. How is it possible to describe with precision what is in the process of appearing — what has not yet taken shape? Schmitt was a jurist; as such, he knew that law can normalize only what has happened: a factual state of affairs. A developmental tendency cannot be dealt with systematically; one can only have a political presentiment of it. It is not possible to construct a juridical framework for what is only a tendency with its supports and relations without becoming utopian. Moreover, no jurist’s idea has ever become law. Schmitt had hardly any examples at hand, except the Monroe Doctrine, and what he surmised in the intentions of the Third Reich were never realized. Under such conditions, it is normal that his intuitions were exploratory and imprecise. There are no miracles in juridical matters.

If one now considers what took place after WWII, i.e., the formation of blocs, within the confines of his intuitions Schmitt seems to have had the merit of having anticipated what was about to happen and of having foreseen the methods of the Soviet Union, including the application of the notion of “limited sovereignty” to satellite countries. As the popular phrase goes, all things considered this is not all that bad. With more flexibility than the Soviets, American politicians also think in terms of Grossraum, as do those who work on European unification. Even some of Schmitt’s minor observations, concerning piracy for example, should be considered carefully, since pirates are tolerated in many countries to an astonishing degree. Schmitt even sensed the audacity of some countries bordering the new powers which, like Iran, have benefited from the situation by establishing tough regimes, and defying the blocs. Of course, in Schmitt’s works these intuitions are combined with secondary considerations about the politics of the era. In any case, there is some virtue in having grasped the outlines of what was about to happen. Entire sections of the jus publicum Europaeum are in the process of crumbling, so there is nothing arbitrary in Schmitt’s thesis on the decline of this law.

 

Schmitt’s Influence

These reproaches raise a more general problem. The main criticism of Schmitt is focused on his opportunism, since he based his foreign policy views on the model he borrowed from the Third Reich — especially the servitude of bordering countries. At the risk of shocking people whose good intentions are always a function of the vagaries of chance, it may be necessary to recognize that Hitler’s legacy is still present today. His ideas were not overthrown on the battlefield. They were even borrowed by his enemies. His heirs are not always those one would suspect; they can be found everywhere: on the Right, Left, and Center. Hitler was a diabolical genius whose malfeasance has far from faded, if one will grant that nefarious ideas have the ability to survive as long as good ideas. One day the catalogue of ideas for which Hitler was the precursor — not only in the political arena but in economics and other spheres — should be drawn up without ideological concession or polemical prejudice.

This being the case, it is an established practice in the republic of letters to put on trial authors who go against current ways of thinking. It is thus normal that Schmitt should be a defendant. His practical choices were inconsistent, even contradictory, sometimes reprehensible. He was also impulsive and unpredictable, so that relations with most of his best friends had dissonant phases, including transitory breaks. His life and thought are full of contrasts. But this is no reason to discredit his work. One must always reckon with human failings. Ultimately, one must be able to make important distinctions, to recognize the quality of his writing, even if one disagrees with his practical choices.[58]

Notes:

  • Originally published as “Les lignes de force de la pensee politique de Carl Schmitt,” in Nouvelle Ecole, No. 44 (Spring 1987), pp. 11-27. Translated by Deborah Cook, edited by Gary Ulmen.
  • 1. Carl Schmitt, Uber die drei Arten des rechtswissenschaftlichen Denkens (Hamburg: Hanseafische Verlagsanstalt, 1934).
  • 2. Carl Schmitt, The Concept of the Political, trs. by George Schwab (New Brunswick: Rutgers, 1976), p. 19.
  • 3. Ibid., p. 20.
  • 4. Ibid., pp. 21-22, trs. altered.
  • 5. Ibid., p. 22.
  • 6. Cad Schmitt, “Die Wendung zum totalen Staat.” This Study first appeared in Europaiische Revue (April, 1931). It was reprinted in Positionen und Begriffe im Kampf mit Weimar — Genf — Versailles 1923-1939 (1940), 2nd ed. (Berlin: Duncher & Humblot, 1988), pp. 146-157.
  • 7. “Das Problem der innerpolitischen Neutralitat des Staates,” in Verfassungsrechtliche Aufsatze aus den Jahren 1924-1954: Materialien zu einer Verfassuugslehre (1958), 2nd ed. (Berlin: Duncker & Humblot, 1973), pp. 41-59.
  • 8. Carl Schmitt, The Concept of the Political, op. cit., p. 78.
  • 9. Ibid., pp. 54.
  • 10. Ibid., pp. 37-38
  • 11. Ibid., pp. 27-28.
  • 12. Ibid., p. 49.
  • 13. Ibid., p. 28.
  • 14. Ibid., p. 33.
  • 15. Ibid., p. 38.
  • 16. Ibid., p. 29.
  • 17. Ibid., pp. 49-50.
  • 18. Schmitt’s “Hobbes-Kristall” appears in a note appended to his Der Begriff des Politischen: Text yon 1932 mit einem Vorwort und drei Corollarien (Berlin: Duncker & Humblot, 1963), p. 122.
  • 19. Schmitt, The Concept of the Political, op. cit., pp.65-66.
  • 20. Ibid., p. 53.
  • 21. One can gather an idea of the whole of his work by consulting Piet Tommissen’s bibliography in the following three works: Festschrift fur Carl Schmitt (Berlin: Duncker und Humblot, 1959); Epirrhosis: Festgabe fur Carl Schmitt (Berlin: Duncker und Humblot, 1968); and “Miroir de Carl Schmitt,” in the Revue europeenne des sciences sociales 44 (Geneva: Droz, 1978).
  • 22. Tr. by George Schwab (Cambridge, MA and London: MIT Press, 1985.) First Published in 1922.
  • 23. Politische Theologie II: Die Legende yon der Erledigung jeder Politischen The-ologie (Berlin: Dumcker und Humblot, 1970).
  • 24. Schmitt, Political Theology, p. 5, translation altered. The German text states: “wer uber Ausnahmezustand entscheidet.” There is a problem in translating the preposition “uber,” since it can mean he who decides on an exceptional situation or he who decides in the case of an exceptional situation.
  • 25. Carl Schmitt, Political Theology, p. 13.
  • 26. Ibid., p. 13
  • 27. Hans Kelsen, Probleme der Souveranitat und die Theorie des Volkerrecht (Tubingen: J. C. B. Mohr, 1920), p. 330.
  • 28. Ibid., p. 31, translation altered.
  • 29. Ibid., p. 7, translation altered.
  • 30. Cf. Carl Schmitt. “Legalitat und Legitimitat” (1932). in Schmitt, Verfassungsrechtliche Aufsatze, op. cit., pp. 263-345. Supplemented by the final notes in Legalitat und Legitimitat (1932), 2nd ed. (Berlin: Duncker & Humblot, 1968).
  • 31. Schmitt, “Legalitat und Legitimitat,” Verfassungsrechtliche Aufsatze, op. cit., p. 270.
  • 32. Ibid., p. 276.
  • 33. Ibid., p. 337.
  • 34. Ibid., p. 288.
  • 35. Ibid., p. 271.
  • 36. Ibid., p. 271.
  • 37. Ibid., p. 340.
  • 38. Ibid., p. 313.
  • 39. Ibid., p. 337.
  • 40. Ibid., p. 342.
  • 41. Ibid., p.343.
  • 42. Carl Schmitt, “Der Fuhrer schutzt das Recht” (1934), in Positionen und Begriffe, op. cit., pp. 199-203.
  • 43. Carl Schmitt, Theorie des Partisanen: Zwischenbemerkung zum Begriff des Politischen (1963), 2nd ed. (Berlin: Duncker & Humblot, 1975).
  • 44. Carl Schmitt, Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum (1950), 2nd ed. (Berlin: Duncker & Humblot, 1974), p. 13.
  • 45. Ibid., p. 15.
  • 46. Ibid., p. 15.
  • 47. Carl Schmitt, “Appropriation/Distribution/Production: Toward a Proper Formulaton of the Basic Questions of any Social and Economic Order (1953),” in Telos95 (Spring 1993), pp. 52-64.
  • 48. Carl Schmitt, Der Nomos der Erde, op. cit., p. 91.
  • 49. Carl Schmitt, “Staatliche Souveranitat und freies Meer — Uber den Gegensatz yon Land und See im Volkerrecht der Neuzeit,” in Der Reich und Europa (1941), reproduced in part as “Staat als ein konkreter, an eine geschichtliche Epoche gebundener Begriff” in Schmitt, Verfassungsrechtliche Aufsatze, op. cit., p. 382.
  • 50. Schmitt, Der Nomos der Erde, op. cit., end of preface, p. 6.
  • 51. Schmitt, “Staat als ein konkreter, an eine geschichtliche Epoche gebundener Begriff,” Verfassungsrechtliche Aufatze, op. cit., p. 376.
  • 52. Carl Schmitt, “Raum und Grossraum im Volkerrecht,” in Zeitschrift fur Volkerrecht, Vol. 24 (1940), p. 149.
  • 53. Carl Schmitt, “Uber das Verhaltnis der Begriffe Krieg und Feind” (1938), in Schmitt, Positionen und Begriffe, op. cit., pp. 247f.
  • 54. Carl Schmitt, “Totaler Feind, totaler Krieg, totaler Staat” (1937), in Schmitt, Positionen und Begriffe, op. cit., pp. 235-239.
  • 55. Schmitt, Theorie des Partisanen, op. cit., p. 92.
  • 56. Ibid., pp. 95-96.
  • 57. Schmitt, “Raum und Grossraum im Volkerrecht,” op. cit.
  • 58. Jacob Taubes has recently devoted an article to Schmitt which makes a relevant distinction between a polemical and a judicious reading. [“Carl Schmitt: Ein Apokalyptiker der Gegenrevolution,” in Taubes, Ad Carl Schmitt: Gegenstrebige Fugung (Berlin: Merve Verlag, 1987), p. 24]. He also mentions that Alexandre Kojeve, having just completed a round of conferences at the Free University of Berlin, was asked by Taubes if he planned any stops before returning to Paris. Kojeve replied: “I am going through Plettenberg to see Schmitt.” Taubes continued: “I could not but be astonished, even though I was accustomed to surprises from Kojeve.” Kojeve continued: “Where should one go in Germany? Anyway, Carl Schmitt is the only one worth engaging in conversation.” Although I was shocked by this response, because I had refused to meet Schmitt, I envied Kojeve’s independence of mind. The episode is more meaningful than it appears, since I have acquired a more nuanced idea of this Hegellan writer and of the influence of Schmitt on his political writings. In fact, there are other French writers familiar with Schmitt’s work, as Raymond Aron notes in his Memoires, among them Jacques Maritain, Rene Capitant and Francois Perroux. Schmitt’s influence in France was no doubt limited; ‘oriented’ in any event. But I have every reason to believe that DeGaulle also read him. Perhaps one day it will not be necessary to excuse oneself in advance for having consulted his works. To do so does disservice to the aesthetician Walter Benjamin, who was finally discovered in France not long ago.

[Telos; Winter 95 Issue 102, p11, 32p]

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