“Everybody interested in the workings of the modern state in good and hard times and its prospects for the future will profit from reading these essays on this famous and infamous German legal theorist.”—Winfried Bruger, Universität Heidelberg
Law as Politics: Carl Schmitt's Critique of Liberalismby David Dyzenhaus (Editor), Ronald Beiner (Contribution by), Heiner Bielefeldt (Contribution by), Ernst-Wolfgang Bockenforde (Contribution by), Ellen Kennedy (Contribution by)
While antiliberal legal theorist Carl Schmitt has long been considered by Europeans to be one of this century’s most significant political philosophers, recent challenges to the fundamental values of liberal democracies have made Schmitt’s writings an unavoidable subject of debate in North America as well. In an effort to advance our understanding not
While antiliberal legal theorist Carl Schmitt has long been considered by Europeans to be one of this century’s most significant political philosophers, recent challenges to the fundamental values of liberal democracies have made Schmitt’s writings an unavoidable subject of debate in North America as well. In an effort to advance our understanding not only of Schmitt but of current problems of liberal democracy, David Dyzenhaus presents translations of classic German essays on Schmitt alongside more recent writings by distinguished political theorists and jurists. Neither a defense of nor an attack on Schmitt, Law as Politics offers the first balanced response to his powerful critique of liberalism.
One of the major players in the 1920s debates, an outspoken critic of the Versailles Treaty and the Weimar Constitution, and a member of the Nazi party who provided juridical respectability to Hitler’s policies, Schmitt contended that people are a polity only to the extent that they share common enemies. He saw the liberal notion of a peaceful world of universal citizens as a sheer impossibility and attributed the problems of Weimar to liberalism and its inability to cope with pluralism and political conflict. In the decade since his death, Schmitt’s writings have been taken up by both the right and the left and scholars differ greatly in their evaluation of Schmitt’s ideas. Law as Politics thematically organizes in one volume the varying engagements and confrontations with Schmitt’s work and allows scholars to acknowledge—and therefore be in a better position to negotiate—an important paradox inscribed in the very nature of liberal democracy.
Law as Politics will interest political philosophers, legal theorists, historians, and anyone interested in Schmitt’s relevance to current discussions of liberalism.
Contributors. Heiner Bielefeldt, Ronald Beiner, Ernst-Wolfgang Bockenforde, Renato Cristi, David Dyzenhaus, Robert Howse, Ellen Kennedy, Dominique Leydet, Ingeborg Maus, John P. McCormick, Reinhard Mehring, Chantal Mouffe, William E. Scheuerman, Jeffrey Seitzer
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Law as Politics
Carl Schmitt's Critique of Liberalism
By David Dyzenhaus
Duke University PressCopyright © 1998 Duke University Press
All rights reserved.
Carl Schmitt's Critique of Liberalism
Systematic Reconstruction and Countercriticism
Critique of liberalism has a long tradition. However, those launching critical attacks against liberalism frequently turn out to be liberals themselves who are concerned, for instance, about the common equation of liberalism with a bourgeois attitude of "possessive individualism" or with the reduction of liberal politics to an empty proceduralism. The recent debate between liberalism and communitarianism largely amounts to such a kind of liberal self-criticism. Even outspoken communitarian critics, like Sandel, undoubtedly appreciate important achievements of liberalism; often they take these achievements more or less for granted.
Carl Schmitt's critique of liberalism is different. His polemic does not fit into the tradition of liberal self-criticism. As I have tried to demonstrate elsewhere, Schmitt systematically undermines the liberal principle of the rule of law. He wants it to be replaced by an authoritarian version of democracy, a democracy based upon the "substantial homogeneity" of the collective unity of the people rather than one resting upon the principles of a participatory republicanism. Although Schmitt until 1933 opposed the Nazi party, his ardent anti-liberalism entails from the outset the potential for fascism. It is thus more than a pure coincidence that he finally proved able to espouse the political ideology of the Third Reich and to take up for some time the role of a legal adviser to the Nazi regime, without substantially changing his previously developed political concepts.
My response to Schmitt is given from a standpoint which I would like to label Kantian in the broad sense. Kant's philosophy of moral autonomy and republicanism can provide the source of inspiration for agenuinely ethical and political liberalism which is centered around universal human rights and republican commitment within an open civil society. I will first reconstruct the main points of Schmitt's critique of liberalism to which I will subsequently give a Kantian response.
Carl Schmitt's Critique of Liberalism
A typical feature of Carl Schmitt's way of arguing is that he attempts to prove liberalism guilty of conflicting sins. On the one hand, Schmitt charges liberalism with being illusionary: the normative principles of neutrality and the rule of law as well as the liberal project of a constitutional democracy rest, he says, upon contradictory premises and hence finally result in liberal self-deceit. On the other hand, he accuses liberals of being hypocritical: by invoking purportedly universal principles, liberals simply hide their particular purposes and selfish economic goals. Either self-deceit or hypocrisy—this is the Schmittian trap in which he wants to destroy the normative claims of liberalism. This either-or structure occurs in many variations of which I will give three examples, namely: Schmitt's attacks on the claim of neutrality, on the principle of the rule of law, and on the concept of constitutional democracy.
Liberal "Neutrality" as Lack of Substance
According to Schmitt, it is typical of liberals that they pretend to take a "neutral" standpoint vis-à-vis religious, ideological, and political conflicts. This claim of neutrality constitutes a main target of Schmitt's polemic because, he thinks, it simultaneously reveals both the lack of ethical and political substance and the hypocrisy of the liberal bourgeois who pursues his interests without visibly and openly engaging in political conflict.
First, for Schmitt neutrality means lack of substance. Rather than taking a clear ethical and political position, liberals tend to resort to purportedly neutral procedural rules. Even when confronted with the question, "Christ or Barrabas?" they will try to avoid a clear decision and, instead, vote for postponing the question and setting up a committee of inquiry. In the face of existing political conflicts, this claim of neutrality amounts to weakness, evasiveness, and cowardice; it indicates liberalism's lack of ethical and political commitment.
Schmitt considers liberal neutrality to be the final result of a history of increasing "neutralization" in the course of which the original mythological and theological substance of political conflict has been lost. In the wake of the early modern religious wars, theological questions were gradually replaced by metaphysical questions which themselves later gave way to humanitarian concerns. In the age of liberalism, even humanitarian morality has become a merely private matter. What remains is economic issues which, according to Schmitt, make up the core of modern liberalism.
Liberal neutrality does not mean that liberals abstain from pursuing their purposes politically. The liberal approach to politics, however, is purely instrumental, because it is only for the sake of safeguarding private and economic interests that liberals engage in politics. This instrumental approach to politics is mirrored in the fact that liberals typically hide their particular goals behind allegedly neutral or even universal normative standards. From this perspective, liberal neutrality ultimately amounts to hypocrisy. This charge of hypocrisy is Schmitt's second critique of liberal neutrality; it is the flip side of the charge that liberalism lacks ethical and political substance.
In his famous essay Der Begriff des Politischen (The Concept of the Political), Schmitt gives a definition of the political which is precisely the opposite of neutrality, because it focuses on the need of drawing a clear line between friend and enemy: "The specific political distinction to which political actions and motives can be reduced is the distinction between friend and enemy." Schmitt is convinced that the friend-enemy distinction represents an inescapable political reality. At the end of the day, liberals, too, will have to face this reality and thus abandon their claim of neutrality. In any serious political crisis, Schmitt says, liberal neutrality is doomed to break down. The liberal state must do away with the illusion of neutrality and openly declare and defend its particular political goals. Alternatively, the state will fall prey to a strong and determined enemy. In either case, however, the liberal pretense of neutrality will necessarily disappear.
The Liberal Illusion of the "Rule of Law"
For Schmitt the principle of the "rule of law," one which lies at the core of liberal constitutionalism, represents another example of the illusionary or hypocritical character of liberalism. The idea of the rule of law suggests the primacy of abstract normative principles over concrete political positions and decisions. According to Schmitt, however, the opposite is true. Normative principles cannot have an effect on human society unless they are interpreted by particular agents and applied to particular circumstances. Particular perspectives are thus always involved in the implementation of normative principles and undermine their claim to universal validity.
This reality most clearly comes to the fore in the state of emergency which in German is called "state of exception" (Ausnahmezustand). Schmitt is fascinated with this situation because the state of exception, in which the entire legal order is at stake, reveals the factual primacy of the "rule of man" over the "rule of law." The state of exception is the breakthrough of political sovereignty in the strong Hobbesian sense, that is, a sovereign decision uninhibited by any normative principles. In the opening sentence of his Politische Theologie (Political Theology), Schmitt declares, "Sovereign is he who decides on the state of exception."
Schmitt's point is that the state of exception cannot be defined and regulated in conformity to abstract legal principles, because these principles by their very nature are unable to determine in advance the scope of political power that is needed to deal with a unique and unpredictable crisis. Consequently, in such an ultimate situation of crisis the government itself has to decide what amount of power seems appropriate to overcome the crisis. This, he thinks, proves the reality of sovereign power in the strict sense, that is, a supreme political authority operating unconstrained by constitutional requirements: "What characterizes the state of exception is principally unlimited authority, which means the suspension of the entire existing order."
Schmitt emphasizes that, although the state of exception certainly is an unusual case, it is not a marginal case that can be ignored in political and legal debates. On the contrary, the mere possibility that such a situation of an utmost crisis can actually occur already reveals the factual limitations of legal rationality and liberal constitutionalism in general. With regard to the state of exception, it becomes obvious that the constitutional order as a whole, after all, depends on the political will of a sovereign authority to establish, defend, and—whenever it seems necessary—suspend this order. Liberals, Schmitt says, either forget or conceal this political truth. Again, it is the situation of crisis—that is, the state of exception—which urges liberals to overcome self-deceit as well as hypocrisy and to admit the reality and inevitability of political sovereignty which ultimately prevails over liberal constitutionalism.
The Contradictory Nature of Constitutional Democracy
For Schmitt constitutional democracy is a mere combination of two components which finally do not fit together: the liberal component of constitutionalism and the political component of democracy. Schmitt's above-mentioned two charges against liberalism—the antagonism between neutrality and substance and the contradiction between constitutionalism and sovereignty—also appear in his attacks on constitutional democracy. As a result, he perceives constitutional democracy to be a self-contradictory and self-undermining project.
First, Schmitt holds that the inherent tension between constitutionalism and democracy represents an example of the general antagonism between substance and neutrality: whereas democracy entails the political substance of a particular people, constitutional procedures are a method of safeguarding private and economic interests of the liberal bourgeois. Second, Schmitt thinks that constitutional democracy is illusionary; in any serious crisis the constitutional principle of the "rule of law" has to give way to unconstrained political sovereignty, a sovereignty which in a democracy is exercized by the collective will of the people.
In his Verfassungslehre (Constitutional Theory) Schmitt defines democracy as a particular form of political sovereignty. What ultimately counts in a genuine democracy, he says, is the sovereign authority of the collective unity of the people, a unity facilitated by, and resting on, some sort of "substantial homogeneity." The question of what this substantial homogeneity should consist of is deliberately left open. One may think of common tradition, language, ethnic origin, religion, or ideology. What is crucial for Schmitt, however, is that this substantial homogeneity must be something particular: a medium through which a people can distinguish itself from other peoples and thus find its specific identity. Against normative universalism he emphasizes, "Political democracy cannot rest upon the indistinctiveness of all human beings; instead, it is based upon membership in a particular people...." Democracy in the Schmittian sense ultimately means the unconstrained political expression of a particular people's collective identity.
Unlike democracy, constitutionalism does not epitomize any political substance. Rather, constitutionalism is an instrument of the liberal bourgeoisie to defend its private and economic interests by setting up a bill of individual rights and a separation of powers. Whereas democracy is a particular way of exercising political sovereignty, constitutionalism is exactly the opposite, namely, a way of preventing political sovereignty. It is the purpose of liberal constitutionalism to "moderate" and "tame" political power by combining and balancing different constitutional institutions—president, parliament, courts—none of which is allowed to exercise sovereign authority in the strict sense. Modern constitutionalism thus ultimately amounts to a new version of the ancient model of a regimen commixtum. In keeping with this old tradition of a "mixed government," liberal constitutionalism "rests upon a peculiar method of linking, balancing, and relativizing monarchic, aristocratic, and democratic elements of form and structure." Since it represents a kind of "mixed government," however, constitutional democracy cannot claim to be a pure democracy; it is at best a moderated and half-hearted democracy, inhibited and tamed by a set of constitutional institutions.
Carl Schmitt is convinced that constitutionalism and democracy do not in principle fit together. To be sure, it is quite possible that the members of a democratic polity may decide to establish a constitution, including a bill of rights and a separation of powers. This, however, does not mean that democracy and constitutionalism actually form one whole. Even though the conflict between the two elements may be concealed, the inherent contradiction continues to exist. According to Schmitt, one of the two elements must ultimately prevail: either political democracy or the normative requirements of constitutionalism.
The first possibility, however, necessarily means dismissing the binding force of constitutional principles and norms altogether. In a true Schmittian democracy the constitution is in fact nothing but a superstructure based on the political will of the people whose absolute authority can override all constitutional requirements at any time. Thus Schmitt emphasizes: "In a democracy the people is the sovereign; it can break through the entire system of constitutional norms and decide a court case, like the prince in an absolute monarchy could decide cases. It is supreme judge as well as supreme legislator."
The second possibility means that constitutional constraints inhibit the exercise of democratic authority in a way that will finally destroy the very existence of the state. Constitutional democracy then turns out to be literally a self-undermining project. If the political unity of the people is denied its role of a supreme and unconstrained sovereign authority, it will not be able to defend its particular existence and identity in a serious political crisis.
Again, the political crisis will destroy liberal self-conceit and hypocrisy and reveal the factual nature of the state. In the state of emergency the illusion of the "mixed government" will evaporate: either the state will transform itself into a real body politic centered around political sovereignty in the strict sense, or the different institutions of the liberal "mixed government" will fall apart, thus leaving the state vulnerable to be conquered by a strong and determined enemy.
A Liberal Response to Schmitt
A defense of liberalism against Schmitt's attacks must be a self-critical defense. It would be absurd to deny the fact that within that broad modern movement, which is labeled "liberal" influential "bourgeois" or "technocratic," currents exist which may indeed lack ethical and political substance. It seems also fair to admit that liberals do have problems with the state of emergency and that the concept of constitutional democracy harbors tensions and possible conflicts. And yet in my opinion Schmitt is wrong in alleging that his criticism hits liberalism per se and that a solution to the inherent contradictions of liberalism can only be expected from an anti-liberal standpoint. In order to oppose this claim, I will have to show that the liberal tradition itself includes genuinely ethical and political substance, in the light of which Schmitt's counterposing of neutrality and substance can eventually be overcome. I will further argue that liberal constitutionalism is more than an abstract and empty proceduralism. Liberal constitutionalism epitomizes substantial ethical and political convictions and thus should be able to survive even serious situations of political crisis, such as the state of emergency. Finally, I will explain the thesis that democracy and constitutionalism essentially belong together, thus forming a complex whole rather than a mere combination of contradictory components.
Excerpted from Law as Politics by David Dyzenhaus. Copyright © 1998 Duke University Press. Excerpted by permission of Duke University Press.
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Meet the Author
David Dyzenhaus is Professor of Law and Philosophy at the University of Toronto and author of Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar.
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