NEOCONSERVATIVE LEGAL THEORY: CARL SCHMITT

November 24, 2006 at 1:09 pm | Posted in Books, Globalization, History, Philosophy, Research | Leave a comment

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Carl Schmitt

July 11, 1888April 7, 1985

Carl Schmitt (July 11, 1888April 7, 1985) was a German jurist, political theorist, and professor of law.

Schmitt was born the son of a small businessman in Plettenberg, Westphalia on July 11, 1888; he studied political science and law in Berlin, Munich and Strasbourg and took his graduation and state exams in the then-German Strasbourg in 1915.

He became professor at the University of Berlin in 1933, the same year that he entered the Nazi party (NSDAP). Schmitt remained a party member until the end of the war, and never recanted his party membership. His ideas continue to attract the attention of several philosophers and political theorists, including Walter Benjamin, Jacques Derrida, Giorgio Agamben, and Chantal Mouffe.

Writings

On Dictatorship (1921)

In 1921, Schmitt became a professor at the University of Greifswald, where he published his essay “Die Diktatur

(“On Dictatorship“), in which he discussed the

foundations of the newly-established Weimar Republic,

emphasising the office of the Reichspräsident.

For Schmitt, a strong dictatorship could embody the will of the people more effectively

than any legislative body, as it can be decisive, whereas parliaments inevitably involve discussion and compromise:

“If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.”

For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution. Although the German concept of Ausnahmezustand is best translated as state of emergency, it literally means state of exception, which Schmitt contends frees the executive from any legal restraints to its power that would normally apply. The use of the term “exceptional” has to be

underlined here: Schmitt defines sovereignty as the power to decide the instauration of state of exception, as Giorgio Agamben has noted. According to Agamben, Schmitt’s conceptualization of

the “state of exception” as belonging to the core-concept of sovereignty was a response to Walter Benjamin‘s concept of a “pure” or “revolutionary” violence, which didn’t enter into any relationship whatsoever with right. Through the state of exception, Carl Schmitt included all types of violence under right, linking right & life (zoe) together, and thus transforming the juridical system into a “death machine”, creating an Homo sacer.

Schmitt opposed what he called “chief constable dictature”, or the

declaration of a state of emergency in order to save the legal order (a temporary

suspension of law, defined itself by moral or legal right): the state of emergency is

limited (even if a posteriori, by law), to “sovereign dictature”, in

which law was suspended, as in the classical state of exception, not to “save the Constitution“, but rather to create another

Constitution. This is how he theorized Hitler‘s continual

suspension of the legal constitutional order during the Third

Reich (The Weimar Republic‘s Constitution was

never abrogated, underlined Giorgio Agamben; rather, it was “suspended” for four years first at February 28, 1933 Reichstag Fire Decree and the suspension was

renewed every four years similar to a – continual – state of emergency).

Political Theology (1922)

This was followed by another essay in 1922, titled “Politische Theologie” (“Political Theology“); in it,

Schmitt, who at the time was working as a professor at the University of Bonn, gave further substance to his authoritarian theories, effectively denying free will based on a catholic world view. The book begins with Schmitt’s famous, or notorious, definition: “Sovereign is he who decides on the exception.” By “exception,” Schmitt means the appropriate moment for stepping outside the rule of law in the public interest. (See discussion of “On Dictatorship,” above.) Schmitt opposes this definition to those offered by contemporary theorists of sovereignty,

particularly Hans Kelsen, whose work is criticized at

several points in the essay.

The book’s title derives from Schmitt’s assertion (in chapter 3) that “all

significant concepts of the modern theory of the state are secularized theological

concepts” — in other words, that political theory addresses the state

(and sovereignty) in much the same manner as theology does God.

Another year later, Schmitt supported the emergence of totalitarian

power structures in his paper “Die geistesgeschichtliche Lage des heutigen Parlamentarismus” (roughly: “The Intellectual-Historical Situation of Today’s Parliamentarianism“, translated as The

Crisis of Parliamentary Democracy by Ellen Kennedy). Schmitt criticized the institutional practices of liberal politics, arguing that they are justified by a faith in rational discussion and openness that is at odds with actual parliamentary party politics, in which outcomes are hammered out in smoke-filled rooms by party leaders. Schmitt also posits an essential division between the liberal doctrine of separation of powers and what he holds to be the nature of democracy itself, the identity of the rulers and the ruled. Although many critics of Schmitt today take exception to his fundamentally authoritarian outlook, the notion that there is an incompatibility between liberalism and democracy is one reason why his work is of continued interest to students of political philosophy.

The Concept of the Political

Schmitt changed universities in 1926, when he became professor

for law at the Hochschule für Politik in Berlin, and again in 1932, when he accepted a position in Cologne. It

was in Cologne, too, that he wrote his most famous paper, “Der Begriff des

Politischen” (“The Concept of the Political”), in which he developed a

theory of a specific domain of interest, called “the political”. This concept

gives the state its own area of predominance, just as churches are predominant in religion

or society is predominant in economics. Schmitt, in perhaps his best-known formulation,

bases his conceptual realm of state sovereignty and autonomy upon the distinction between friend

and enemy. This distinction is to be determined “existentially,” which is

to say that the enemy is whoever is “in a specially intense way, existentially

something different and alien, so that in the extreme case conflicts with him are

possible.” (Schmitt, 1996, p. 27) Such an enemy need not even be based on

nationality: so long as the conflict is potentially intense enough to become a violent one

between political entities, the actual substance of enmity may be anything. Although there

have been divergent interpretations offered of this work, there is broad agreement that “The Concept of the Political” is an attempt to achieve state unity by defining the

content of politics as opposition to a foreign “other,” and also through the

preeminence of the state, which stands as a neutral force over potentially fractious civil

society, whose various antagonisms must not be allowed to reach the level of the

political, lest civil war result.

The case “Preussen contra Reich”

Apart from his academic functions, in 1932 Schmitt was counsel for the Reich government

in the case “Preussen contra Reich” wherein the SPD-led government of the state

of Prussia disputed its dismissal by the right-wing von Papen government. Papen was motivated to make this

move because Prussia, by far the largest state in Germany,

served as a powerful base upon which the political left could draw, and also provided them

with institutional power, particularly in the form of the Prussian Police. One of the

counsel for the Prussian government was Hermann

Heller. In German history, this struggle leading to the de facto destruction of

federalism in the Weimar republic is known as the ‘Preußenschlag’.

Influence

Through Giorgio Agamben, Chantal Mouffe and other writers, Carl Schmitt has become a common reference in recent writings of the intellectual left as well as the right. This debate concerns not only the interpretation of Schmitt’s own positions, but also matters relevant to contemporary politics: the idea that laws of the state cannot strictly limit actions of its sovereign; the problem of a “state of exception“, etc.

Schmitt’s influence has also recently been seen as consequential for those interested in contemporary political theology, which is much influenced by Schmitt’s argument that political concepts are secularized theological concepts. The German-Jewish philosopher Jacob Taubes, for example, engaged Schmitt widely in his study of Saint Paul, The Political Theology of Paul (Stanford Univ. Press, 2004). Taubes’ understanding of political theology is, however, very different from Schmitt’s, and emphasizes the political aspect of theological claims, rather than the religious derivation of political claims.

Nazi complicity

Carl Schmitt, who became a professor at the University of Berlin in 1933 (a position he held until the end of World War II) joined the NSDAP on May 1, 1933; he quickly was appointed

Preußischer Staatsrat” by Hermann

Göring and became the president of the “Vereinigung nationalsozialistischer

Juristen” (“Union of National-Socialist Jurists”) in November. He thought his theories as an ideological foundation of the Nazi

dictatorship, and a justification of the “Führer

state with regard to legal philosophy, in particular through the concept of auctoritas.

Half a year later, in June 1934, Schmitt became editor in

chief for the professional newspaper “Deutsche Juristen-Zeitung

(“German Jurists’ Newspaper”); in July 1934, he

justified the political murders of the Night

of the Long Knives as the “highest form of administrative justice”

(“höchste Form administrativer Justiz“).

Schmitt presented himself as a radical anti-semite and also was the chairman of a law teachers’ convention in Berlin in

October 1936, where he demanded that German law be cleansed of

the “Jewish spirit” (“jüdischem Geist“), going so far as to demand that all publications by Jewish scientists should henceforth be marked with a small symbol. Nevertheless, two months later, in December, the SS

publication “Das schwarze Korps” accused Schmitt of being an opportunist, a Hegelian state thinker and basically a Catholic, and called his anti-semitism a mere pretense, citing earlier statements in which he criticised the Nazi‘s racial theories. After this, Schmitt lost most of his prominent offices, and retreated

from his position as a leading Nazi jurist, although he

retained his post as a professor in Berlin thanks to Göring.

Post World War II life

In 1945, Schmitt was captured by the American

forces; after spending more than a year in an internment camp, he returned to his home

town of Plettenberg following his release in 1946, and later to the house of his housekeeper Anni Stand in

Plettenberg-Pasel. Despite being isolated in the mainstream scholarly and political

community, he continued his studies especially of international

law from the 1950s on, and he received a never-ending stream

of visitors, both colleagues and younger intellectuals, until well into his old age. Among

these visitors, important are Ernst Jünger, Jacob Taubes, and Alexandre

Kojève. Schmitt died on April 7, 1985

and is buried in Plettenberg.

Legacy

Despite recent apologies for Schmitt’s conduct during the Nazi era – no such apologies were issued by Schmitt himself during

his lifetime – Schmitt, along with the early Heidegger, lent

his considerable authority to the Nazi regime, and played a leading role in constructing

the legal basis that justified its seizure of power.

It seems unlikely that a political mind as insightful as Schmitt’s could have been

mistaken about the true nature of the NSDAP and its leadership.

Schmitt clearly favored a strong, even dictatorial executive.

Some have wondered whether he was looking forward to the Führer regime of Hitler or backward to the authoritarian regime of Otto von Bismarck. However, Schmitt showed only contempt in Die

Diktatur (1921) for the “chief constable dictature”, to which he opposed

“sovereign dictature”.

It may be called one of the many ironies of Schmitt’s story that, at the very

moment of Nazi triumph, he decisively declared his support for a regime that ultimately

had little use for someone like him. Yet the fact remains that Schmitt tried to use his

status within the NS Party to make himself the foremost authority in his field in Nazi

Germany.

See also

External links

  • The Return of Carl

    Schmitt by Scott Horton Balkinization 7 November 2005 — discusses the

    continuing influence of Schmitt’s legal theories in modern American politics

  • Focus on the International Theory of Carl Schmitt in the LeidenJournal of International Law (LJIL). Contributions by Louiza Odysseos and Fabio

    Petito, Robert Howse, Jörg Friedrichs, Christoph Burchard and Thalin Zarmanian.

  • Telos, a journal

    of politics and critical theory, has a special section on Carl Schmitt in issue 132 (Fall,

    2005). Telos Press also recently published a translation of Schmitt’s The Nomos of

    the Earth.

  • “World Orders: Confronting Carl Schmitt’s The Nomos of the Earth.” A special issue of SAQ: South AtlanticQuarterly, volume 104, number 2. William Rasch, special issue editor.

References

English translations of Carl Schmitt

Note: a complete bibliography of all English translations of Schmitt’s books, articles,

essays, and correspondence is available here.

  • The Concept of the Political.
  • George

    D. Schwab, trans. (University of Chicago Press,

    1996). Original publication: 1927, 2nd edn. 1932.

  • The Crisis of Parliamentary Democracy. Ellen Kennedy, trans. (MIT Press, 1988). Original publication: 1923, 2nd edn. 1926.

  • Four Articles, 1931–1938. Simona Draghici, trans. (Plutarch Press, 1999). Originally published as part of Positionen und Begriffe im Kampf mitWeimar—Genf—Versailles, 1923–1939 (1940).

  • The Idea of Representation: A Discussion. E. M. Codd, trans. (Plutarch Press, 1988), reprint of The Necessity of Politics (1931). Original publication: 1923.

  • Land and Sea. Simona Draghici, trans. (Plutarch Press, 1997). Original publication: 1954.

  • Legality and Legitimacy. Jeffrey Seitzer, trans. (Duke University Press, 2004). Original publication: 1958.

  • The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol. George D. Schwab & Erna Hilfstein, trans. (Greenwood Press,1996). Original publication: 1938.

  • The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. G.L. Ulmen, trans. (Telos Press, 2003). Originalpublication: 1974.

  • On the Three Types of Juristic Thought. Joseph Bendersky, trans. (Praegar, 2004). Original publication: 1934.

  • Political Romanticism. Guy Oakes, trans. (MIT Press, 1986). Original publication: 1919, 2nd edn. 1925.

  • Political Theology: Four Chapters on the Concept of Sovereignty. George D. Schwab, trans. (MIT Press, 1985). Original publication: 1922, 2nd edn. 1934.

  • Roman Catholicism and Political Form. G. L. Ulmen, trans. (Greenwood Press, 1996). Original publication: 1923.

  • State, Movement, People (includes The Question of Legality). Simona Draghici, trans. (Plutarch Press, 2001). Original publication: Staat, Bewegung, Volk (1933); DasProblem der Legalität (1950).

  • The Tyranny of Values. Simona Draghici, trans. (Plutarch Press, 1996). Original publication: 1979.

  • War/Non-War: A Dilemma. Simona Draghici, trans. (Plutarch Press, 2004). Original publication: 1937.

Works in German

  • Über Schuld und Schuldarten. Eine terminologische Untersuchung, 1910.
  • Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis, 1912.
  • Schattenrisse (veröffentlicht unter dem Pseudonym ‚Johannes Negelinus, mox Doctor‘, in Zusammenarbeit mit Dr. Fritz Eisler), 1913.

  • Der Wert des Staates und die Bedeutung des Einzelnen, 1914.
  • Theodor Däublers ‚Nordlicht‘: Drei Studien über die Elemente, den Geist und die Aktualität des Werkes, 1916.

  • Die Buribunken, in: Summa 1/1917/18, 89 ff.
  • Politische Romantik, 1919.
  • Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf, 1921.

  • Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 1922.
  • Die geistesgeschichtliche Lage des heutigen Parlamentarismus, 1923.
  • Römischer Katholizismus und politische Form, 1923.
  • Die Rheinlande als Objekt internationaler Politik, 1925.
  • Die Kernfrage des Völkerbundes, 1926.
  • Der Begriff des Politischen, in: Archiv für Sozialwissenschaften und Sozialpolitik 58/1927, 1 ff.
  • Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie, 1927.

  • Verfassungslehre, 1928.
  • Hugo Preuß. Sein Staatsbegriff und seine Stellung in der dt. Rechtslehre, 1930.
  • Der Völkerbund und das politische Problem der Friedenssicherung, 1930, 2. erw. Aufl. 1934.

  • Der Hüter der Verfassung, 1931.
  • Der Begriff des Politischen, 1932 (Erweiterung des Aufsatzes von 1927).
  • Legalität und Legitimität, 1932.
  • Staat, Bewegung, Volk. Die Dreigliederung der politischen Einheit, 1933.
  • Das Reichsstatthaltergesetz, 1933.
  • Staatsgefüge und Zusammenbruch des Zweiten Reiches. Der Sieg des Bürgers über den Soldaten, 1934.

  • Über die drei Arten des rechtswissenschaftlichen Denkens, 1934.
  • Der Leviathan in der Staatslehre des Thomas Hobbes, 1938.
  • Die Wendung zum diskriminierenden Kriegsbegriff, 1938.
  • Völkerrechtliche Großraumordnung und Interventionsverbot für raumfremde Mächte. Ein Beitrag zum Reichsbegriff im Völkerrecht, 1939.

  • Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923–1939, 1940 (Aufsatzsammlung).

  • Land und Meer. Eine weltgeschichtliche Betrachtung, 1942.
  • Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, 1950.
  • Donoso Cortes in gesamteuropäischer Interpretation, 1950.
  • Ex captivitate salus. Erinnerungen der Zeit 1945/47, 1950.
  • Die Lage der europäischen Rechtswissenschaft, 1950.
  • Das Gespräch über die Macht und den Zugang zum Machthaber, 1954.
  • Hamlet oder Hekuba. Der Einbruch der Zeit in das Spiel, 1956.
  • Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954, 1958 (Aufsatzsammlung).

  • Theorie des Partisanen. Zwischenbemerkung zum Begriff des Politischen, 1963.
  • Politische Theologie II. Die Legende von der Erledigung jeder Politischen Theologie, 1970.

  • Glossarium. Aufzeichnungen der Jahre 1947-1951, hrsg.v. Eberhard Freiherr von Medem, 1991 (posthum).

  • Das internationale Verbrechen des Angriffskrieges, hrsg.v. Helmut Quaritsch, 1993 (posthum).

  • Staat – Großraum – Nomos, hrsg. von Günter Maschke, 1995 (posthum).
  • Frieden oder Pazifismus?, hrsg. von Günter Maschke, 2005 (posthum).
  • Carl Schmitt: Tagebücher, hrsg. von Ernst Hüsmert, 2003 ff. (posthum).

Secondary literature

Roland Freisler

October 30, 1893 in Celle, GermanyFebruary 3, 1945 in Berlin

Roland Freisler (October 30, 1893 in Celle, Germany

February 3, 1945 in Berlin) was a prominent Nazi Judge. He became State Secretary at the Reich Ministry of Justice and President of the Volksgerichtshof, a court handling political

crimes.

In contrast to most of the Nazi leadership, little beyond basic details is known about

Roland Freisler the man. He was born in Celle, the son of an

engineer, and saw active service during World War I: he

was an officer cadet in 1914, and by 1915

he was a lieutenant and was decorated before becoming a prisoner

of war in Russia in October 1915. While interned in Russia, he learned the language

and developed an interest in Marxism. He returned to Germany

in 1920 a fanatical Communist to

study law at Jena University, becoming a Doctor of Law in 1922. From 1924 he worked as a lawyer in Kassel and also as a city councilor for the Völkisch-Social bloc.

He joined the Nazi Party in July 1925.

During this period, he served as defense counsel for members of the nascent Party who got

into trouble with the law. He was also a delegate to the Prussian Landtag, or state

legislature, and later he became a member of the Reichstag.

In 1927 the Gauleiter of the Gau

Kurhessen characterized Freisler in the following manner: “Rhetorically he is equal

to our best speakers, if not superior to them. Particularly on the broad masses, he has

influence, but thinking people mostly reject him deep down. Party Comrade Freisler is only

usable as a speaker. He is unsuitable for any leadership post, since he is unreliable and

is a moody person.”

In 1933 and 1934 he was State Secretary in the Prussian Ministry of Justice, and in the

Reich Ministry of Justice between 1934 and 1942; he represented the latter at the Wannsee Conference, where he stood in for Franz Schlegelberger.

His absolute mastery of legal texts, mental agility and overwhelming verbal force

jelled with strict adherence to the party line and the corresponding misanthropic ideology, so that he became the most feared

judge and the personification of the Nazis’ “blood justice.” Despite his

undisputed legal competence, he could not rise further. According to Uwe Wesel, this can be attributed

to two factors:

  • Freisler was regarded as a lone fighter and had no influential patron at his disposal who could have championed him.
  • In the eyes of the Nazi elite, Freisler was compromised by his brother Oswald’s rise to prominence. Oswald Freislercommitted offense against the party line appearing as defense counsel, in politically

    significant trials which the Nazi regime sought to debase for propaganda purposes. In so

    doing, he wore his Nazi Party badge in a clearly visible way, which made an unambiguous

    interpretation of the party’s position more difficult. Propaganda minister Joseph Goebbels accordingly reproved Roland Freisler and

    reported the incident to Hitler, who, for his part, decreed the immediate exclusion of

    Oswald Freisler from the party.

On August 20, 1942, Hitler

promoted Otto Thierack to Reich Justice Minister and

named Freisler to succeed Thierack as president of the Volksgerichtshof

(“People’s Court”). This court had jurisdiction over a rather broad array of

“political offenses”, which included crimes like black marketeering, work

slowdowns, and defeatism. These crimes were viewed by Freisler’s court as Wehrkraftzersetzung (“destruction of defensive

capability”) and were accordingly punished severely, the death penalty being

meted out in numerous cases.

The number of death sentences rose sharply under Freisler’s stewardship. Approximately

90% of all proceedings ended with sentences of death or life imprisonment, the sentences

frequently having been determined before the trial. Between 1942 and 1945 more than 5000

death sentences were handed out, and of these, 2600 through the court’s First Senate,

which Freisler headed. Thus, Freisler alone was responsible, in his three years on the

court, for as many death sentences as all other senate sessions of the court together in

the entire time the court existed, between 1934 and 1945.

Freisler acted as judge, prosecutor and jury all embodied in a single person. He was

particularly known for humiliating defendants and barking loudly at them. A number of the

trials for defendants in the July 20 plot before the

People’s Court were filmed and recorded. In the 1944 trial against Wilhelm Graf Schwerin von

Schwanenfeld, for example, Freisler screamed so loudly, the technicians who were

filming the proceeding had major problems making the defendants’ words audible. Count

Schwerin, like many other defendants in the plot, was sentenced to death by hanging. Among this and other show trials, Freisler headed the 1943

proceedings against the members of the “White Rose” resistance group.

Freisler chaired the First Senate of the People’s Court. Insofar as he led the

proceedings, he designated himself as court reporter. That way, he was also responsible

for the composition of written grounds for the sentences, that he wrote up in his own

unique fashion, namely in accordance with his own notions of a “National Socialist

criminal court.” Meanwhile, he introduced judgment advisories with remarks like

“Off with his head,” and “The beet must be uprooted,” and so forth.

During an Allied air raid on Berlin on February 3, 1945, Freisler was fatally struck by a beam in the cellar of the

courthouse. His body was found crushed beneath a fallen masonry column, clutching the file

on anti-Hitler conspirator Fabian von

Schlabrendorff.

Trivia

See also

http://en.wikipedia.org/wiki/Roland_Freisler

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