The present abuse of executive power through and with the administrative state has been generously prepared over many decades.
Was he or wasn’t he? An enormous number of words have been written to contest the question of whether Carl Schmitt (1888-1985) was an avid supporter of Hitlerism and totalitarianism. Some commentators, certain that he was, are dismayed that intellectuals interested in law and politics continue to take seriously the ideas of a man dubbed “the Crown Jurist of the Third Reich.” (See Law and Liberty’s recent Liberty Forum on this question, and responses.)
It might be expected that the publication in English of Schmitt’s book Dictatorship would help settle the matter once and for all. The book does not. A clue as to why stems from the date of the book’s first publication, 1921. Whilst we might expect great revelations in such a book, no one at the time seemed much startled by it. (Schmitt even complained, in the foreword to the second edition, which was published in 1928, that scholars were yet to respond to it.)
The text is a rather sober history of ideas and its academic legal writing contains no endorsement of anything like a Führer. But although it contains no smoking gun, the book is of great interest. The effort to define dictatorship is clearly an important task in itself, and Schmitt produced a lucid historical work, combining accounts of dictators stretching back to Rome along with an account of changes in ideas about power and sovereignty down the centuries.
Its interest lies in the texture it adds to Schmitt’s controversial claim that politics stems from the friend-enemy distinction, famously developed by him in The Concept of the Political, which was published originally in 1927 but expanded, very likely in response to Leo Strauss’s treatment of the book’s thesis, in 1932.
The distinction between friend and enemy is evident in this work from 1921, a knotty, intellectually dense book. It displays a certain unevenness as the long historical portraits of dictators and their powers (Julius Caesar, Oliver Cromwell, Albrecht von Wallenstein) are interpolated with philosophical inquiry into the exact character of dictatorship and whether and how it differs from absolutism, a state of siege, emergency powers, a police state, and Caesarism.
The introduction by translators Michael Hoelzl and Graham Ward usefully highlights why Schmitt wrote Dictatorship. Most of us interested in legal and political theory have frankly lived our whole lives in stable political conditions. By contrast, the 33-year-old author had, just before the book’s publication, been actively involved in forestalling civil war. During the First World War (1914-1918) he served on the general staff responsible for German martial law. And his office combated communist insurrection in the wake of Germany’s defeat. His role in the deployment of troops to curtail socialist rebellion in Germany shaped his sure, but startling, conviction that dictatorship is a response to an enemy, whether internal or external.
In his lifetime, the book saw four editions (1921, 1928, 1964, and 1978). This edition includes the forewords to each edition—sadly, neither of the later ones addresses Hitlerism—and they reveal Schmitt’s increasing clarity about the importance of the idea of the enemy, as well as a significant darkening of what the idea means. The foreword to the original edition is the longest and, with its emphasis upon class struggle and the Marxist idea of a dictatorship of the proletariat, shows the influence on him of his dealings with socialist insurrection. The 1928 foreword switches to fascism as a political threat. It argues that since the Great War, governments have widely relied on “enabling laws” (Ermächtigungsgesetze) rather than legislative rule and it describes fascism as precipitated by the worry that “the increasing concentration of economic and political power in the hands of a few people” was fostering subversion not by the urban poor but by elites.
Although there is a disconcerting contemporary ring to the 1928 foreword—large swathes of Left and Right in America rage at the crony capitalism they perceive calcifying in the country by the day—it is the forewords to the 1964 and 1978 editions that introduce a new subtlety about the enemy. It is this subtlety that explains, I think, the continuing fascination with Schmitt from commentators both Left and Right.
As Schmitt points out, one reason a study of dictatorship is needed is an ambiguity in the idea itself. People often think of a personal dictator ruling arbitrarily through an invasive bureaucratic administration of daily life. The idea of personal, arbitrary rule sits ill, however, with the idea of bureaucracy. In the aftermath of the Second World War, he observed European politics lurching from one crisis to another—economic, financial, and social—and with each “crisis” government rapidly overhauled the law and intensified the bureaucratic management of the population. Schmitt considered this a sinister development that left contemporary peoples in “an abnormal state, intermediate between war and peace.” The citizenries themselves have become the enemy. And more: the use of ever-recurring crisis to intensify and grow administrative rule means the people are de facto a permanent enemy.
The purpose of Schmitt’s book is to show that the link between permanence and dictatorship is a departure from the traditional practice of dictatorship. In the history of law, dictatorship has been viewed as a response to an enemy in a way akin to the problem of self-defense. Legal norms presuppose normal conditions. Dictatorship is a reaction to the growing absence of these conditions: it is a “legal task” to root out an enemy bent on subverting the conditions required for the rule of law. To this end, historically, extraordinary powers were granted the dictator (oftentimes a military officer) with conditions set – a written commissio stipulating the duration of the task and making explicit the precisely defined, pragmatic goal of re-establishing the conditions necessary for the rule of law.
Self-defense assumes the absence of normal legal and political conditions. Usually, when an individual is under threat of lethal harm, the public authority deploys its police power. Legally, self-defense is the idea that facing lethal unprovoked threat, a person can protect herself by resorting to homicide, assuming the absence of the police. In legal accounts of self-defense, there can be all manner of refinements as to the mental intention to kill and the scope of action permitted, but what is certain is that as soon as the police power of the public authority is present, legitimate recourse to self-defense vanishes. This is clear as far back as Thomas Aquinas’ 13th century treatise on homicide. Dictatorship, historically, was a temporary invoking of emergency powers with the goal of reaffirming previously existing normal conditions that root rule of law. Dictatorship was designed to conserve and not function as an instrument of revolution.
Bound by time and goal, “commissary” dictatorship is interventionist with a “precise content, namely the idea of a concrete enemy.” The management of the public’s welfare is then no part of the dictator’s commission. Though Schmitt’s theory of politics as reliant on the friend-enemy distinction is typically used to condemn the man, in his thinking here it is clear that the focus on a concrete enemy is meant to curtail government.
Dictatorship forces us to wonder whether there is not something odd and sinister about ever-recurring “crises” being met with ever expanding bureaucracy and whether the unchallenged permanence of administrative government has generated an amorphous enemy, a net in which all of us are potentially, and maybe in fact, caught.