Carl Schmitt, Between Banality and Catholicism

Encountering Carl Schmitt for the first time is a shock, especially if one is raised to respect what Jeremy Rabkin, in his Liberty Forum essay, correctly describes as the liberal pieties. But if one cares about liberalism it would be a mistake to write Schmitt off as a Nazi, a nihilist, or a promoter of anachronistic theological irrelevancies. Schmitt was a prophet of doom, and doom did not arrive on schedule, and his solution was worse than the disease. But it is important to take a longer perspective: the problems he identified in liberalism have not gone away. Indeed they flare up repeatedly, and may well be arriving on a slower schedule, in different but related forms.

The risk of dismissing Schmitt is significant: to fail to see how fragile liberalism is, what its preservation requires, why the liberal bromides seem to much of the world to be cynical and empty justifications for the self-interested exercise of power, and, finally, why the skeptics might, quite reasonably, think differently. With the world convulsed by radical Islam, which overtly rejects liberalism and takes a theological form that cannot be fit into the painfully worked-out compromises that resolved the European wars of religion, one can hardly pretend that liberalism, especially of the kind derived from Wilsonian internationalism, has all the political answers for current world problems.

There are other reasons as well. One cannot really understand the Frankfurt School, or Leo Strauss, or Hans Kelsen, or Hans Morgenthau, without understanding what they both absorbed and rejected from Schmitt. Herbert Marcuse’s essay “Repressive Tolerance” (1965) is a perfect example of Schmittian reasoning, and the basic form of argument reappears in feminism and the various constructions of racism that dominate contemporary academia. And one cannot understand the kind of authoritarian liberalism promoted at Harvard by the Kantian Carl Friedrich, which influenced so many American political scientists, including his student Henry Kissinger, and also many of his Harvard colleagues in other fields, and consequently the conduct of American government, without understanding Schmitt as his hidden interlocutor.

Clinton Rossiter’s dissertation, Constitutional Dictatorship (1948), conveyed the same message as Schmitt’s Dictatorship (1921): that we had something to learn from the Roman institution of dictatorship about how to deal with political crisis. It was a small step to Rossiter’s fawning praise of the executive in The American Presidency (1956), his widely used textbook pointing out that the vaunted legislative checks on presidential power in the U.S. Constitution, such as the power of the purse, were largely meaningless and unusable. Arthur Schlesinger Jr.’s The Imperial Presidency (1973) affirmed that this is indeed what had transpired: the executive had become unfettered and dangerous. In an age of presidential assertions of prosecutorial discretion that amount to rule by decree, these are live issues.

I have discussed some of these connections elsewhere, and will not bother with the aspect of intellectual history here. But I will tell one story. After publishing an essay on Edward Shils in which I mentioned that his writings on liberalism reflect a deep engagement with Schmitt, which I could not date, I received a letter from the German political scientist Wilhelm Hennis. He had the date: 1950, during Hennis’ own study at the University of Chicago, where he recalled shuttling back and forth between Shils and Strauss with information about Schmitt’s current thinking. They were serious thinkers in a moment of triumphant liberalism.

We can hardly be excused today from the task of thinking about whether the recent evolution of the liberal tradition toward collectivism, as Edward Shils put it, places the tradition in danger of “obliterating itself through an unseen modification of its postulates” in fulfillment of Schmitt’s predictions about the conflict between liberalism and democracy. What I will do instead of intellectual history is this: note some Schmittian themes that are relevant today, and explain why they are not as outré as Rabkin thinks.

There is another aspect of Schmitt that bears discussion that I will also largely ignore. Schmitt knew something about the United States and took its political and legal ideas seriously. This was rare among Continental thinkers. His contemporaries, and indeed most of the political thinkers on the Continent from the 19th century to the present, regarded liberalism as a passing historical moment and the American experience as completely without relevance to the future of Europe. Schmitt, as we will see, agreed with the first of these ideas, but he did not agree with the second.

Schmitt was sensitive to, as he hardly could fail to be, the breakdown of genuine parliamentary discussion. As he wrote in The Crisis of Parliamentary Democracy (1923), the proper functioning of a parliamentary system depended on the possibility of “persuading one’s opponents through argument of the truth or justice of something, or allowing oneself to be persuaded of something as true or just.” This happened, he thought, in the past. But he believed that the era in which this was possible was over.

He was far from the only thinker to recognize that the parties of the present were no longer engaged in this kind of mutual persuasion. A.V. Dicey argued that the arrival of the Labour party in England meant that politics would be reduced to a struggle for the spoils of the economic system. The German situation was worse: the worker’s party, the SPD (Social Democratic Party), as well as other parties, were Weltanschauung parties, devoted to cultivating a world view in their followers and hoping for a post-parliamentary or post-capitalist future. They supported the republic faute de mieux, but they believed fervently that there was something better, which would arrive when the time was ripe. The communists were more hostile to the republic, and wanted utopia to arrive faster.

What does one have when there is such a gulf between the worldviews of the major parties that public persuasion is no longer possible—when some of the parties, including the rising ones, have fanatical followers who are unwilling to accept the reasonableness of the views on the other side? One no longer has the conditions for liberal democracy. And in this context it makes perfect sense to speak, as Schmitt did, of the “democracy” that results from voting in these circumstances as the tyranny of the 50 percent plus 1.

Can we say that this is irrelevant to American politics today? That we have a political system based on mutual understanding and respect for genuine differences in viewpoint, in which elected officials and the publics they address are open to reasoned persuasion? Have we excluded from political discussion those topics on which reasoned persuasion is not possible? There is of course a long history of colorful political vituperation in the United States. But the language of racism, sexism, the idea of a “War on Women,” and the suggestion that climate change “deniers” be criminally sanctioned, all involve a special kind of exclusionary language that precludes, and denies the possibility of, or even relevance of, rational persuasion. If one is concerned about this, Schmitt is prescient and revealing.

One can then turn to one of Schmitt’s most “Nazi” doctrines: that democracy requires a homogenous population. The problem, for him, was the existence of minorities who never had an equal chance of attaining power, and in particular those who were permanently excluded from power. The minorities he had in mind were the ethnic minorities of Central and Eastern Europe, which were indeed oppressed, despite, in the case of then-Czechoslovakia, a constitution that was designed to protect them but whose provisions were never enforced. One can ask: has the problem of minorities been solved by the principle of one-man, one-vote or democratic procedure in the United States? Or are Schmitt’s considerations still relevant? Does multiculturalism and a rejection of “assimilation” contain the seeds of the dissolution of the conditions for democracy because of the prospect of excluded and unassimilable minorities?

These are hardly abstract questions. Genocide in Africa, and the most violent of present conflicts, in the Middle East, involve minorities located in arbitrarily constructed “nations,” and the inability of “democracy” to resolve or even contain these conflicts is apparent. The persistence of racial enmity and the subjective experience of racial and ethnic oppression in the United States are also hard facts. Ignoring their relation to majoritarian democracy is unjustified.

In his essay, Rabkin describes Schmitt as a nihilist and then as an existentialist. Schmitt was certainly not a nihilist in the original Turgenev sense, a materialist who rejected any claims of spiritual truth. Unless one identifies Nazism with nihilism, as the famous but discredited book (The Voice of Destruction 1940) by Hermann Rauschning did, and then identifies all its supporters with nihilism, it is difficult to make much out of these claims. In fact the Nazis employed moral language and moral appeals, not nihilistic ones. If one says that Schmitt was an opportunist who joined the Nazis for career reasons, one implies that his Nazism was something less than a matter of deep intellectual commitment, even to their supposed nihilism as a creed. If one means simply that he was devoid of faith, this seems strange as well.

His fascination with the theological was not from the outside, as a skeptic, but from within, as a Catholic believer. He repeatedly returned to themes that separated Protestantism from Catholicism: the view of nature, the role of the conscience, the idea of the role of the state in enforcing dogma, and so forth, always taking the Catholic side and thinking from the Catholic point of view. This was, however, the traditional and 19th century Catholic point of view, in which there were, as the phrase goes, no rights for the wrong. Indeed, central to his historical account of the disintegration of the modern state was his rejection of Thomas Hobbes on the subject of freedom of conscience—a distinctly Catholic and anti-Protestant point of view and conception of the state.

In the end one must come to grips with Schmitt’s own theological thinking and his rejection of the philosophy of values, which locate him someplace very different. His theological interests were deep, and he took the side of the Grand Inquisitor, to whom, as he noted, all the best lines were given by Dostoevsky. His was a theology of salvation, of saving souls, not of a kindly milquetoast Jesus. This is not to modern tastes, as he knew. But it is a consistent theological viewpoint. And unlike Ivan Turgenev’s nihilist, Schmitt respected other consistent theological viewpoints, including that of Islam. Our conception of politics is blind to the power of this theology. Schmitt, because he was theologically attuned and sophisticated, was not blind.

In his essay on the Tyranny of Values (1959), Schmitt clearly recognized that the concept of values was the source of the existentialism of which Rabkin complains, and makes the point that the concept leads to the idea, which he says is best expressed in Max Weber, that the individual sets up values. He points out that even in Weber this is not a plea for tolerance: Weber clearly recognizes that these choices are a source of enmity, when the valuator seeks to enact his values, in a struggle with other values. And the example he gives, in an approving quotation of Nikolai Hartmann, is the fanatical pursuit of justice captured in the phrase fiat justia pereat mundus (“Let justice be done, though the world perish”), which Hartmann notes “is opposed not only to love, to say nothing of charity, but essentially also to all the superior values.”

He was an acute critic of the philosophy of values of the late 19th century. This philosophy was an important step: by reducing the moral realm to “values,” it also reduced it to “value-choice.” Because value choice could not be grounded rationally, the philosophy of values led directly to a philosophy of choice, or decision, which is to say existentialism.

Was Schmitt an existentialist? Rabkin uses Schmitt’s own term, “decisionism,” to convict him of this thought-crime. But Schmitt’s meaning was different, and restricted to a specific legal context. Schmitt stressed the inevitable role of discretionary power that resulted from the gap between general principles and specific applications of the law, and the fact that power to “decide” was given to judges and other authorities. A better but more awkward name might have been “discretionarism.”

This issue of the ineliminability of discretion recurs in writers like Hayek as well, and in the case of Schmitt was derived from the more general neo-Kantian idea of a gap between concept and reality. This was a widespread but ill-fated usage. It is important historically in that it led to Lebensphilosophie and from there to the existential embrace of “life” and rejection of general principles. But the relation between these philosophical ideas and Schmitt is not clear. One must first distinguish the legal issues from the general philosophical ones. Despite the very abstract relation between the two, they are not the same and one does not imply the other.

Decisionism as a legal doctrine is a banality. Lots of people in every legal system, bureaucrats, judges, even professors, have discretionary powers. It becomes more controversial, but as a legal-political doctrine, when it is applied to the emergency powers of the highest executive, such as the declaration of states of exception or states of siege, and then identified with the doctrine of sovereign power itself. This is the step Schmitt takes. And one can certainly disagree with him, and with the whole notion of sovereignty, as Hans Kelsen did. But one cannot disagree with the reality that there are such powers, and that they are not easily controlled by courts, which the executive can defy—as Abraham Lincoln did in Ex parte Merryman (1861), for example.

Schmitt emphasized that these were legal powers, and that rulers who employed them had legal doctrine, and law, to justify their use. He even defended Oliver Cromwell on these grounds. And of course the most dramatic use is in the protection of the state itself, under the principle, embraced by Schmitt, that necessity knows no law. This same principle was invoked by Kaiser Wilhelm at the beginning of World War I, and is part of the doctrine of security forces everywhere. Schmitt made it central to his analysis of sovereign power. But liberals like Friedrich Meinecke, in Idee der Staatsraison (1924),[2] and as mentioned earlier, Clinton Rossiter in the United States, also celebrated the idea.

The concept that makes Schmitt’s notion of sovereignty seem sinister rather than banal is his account of the “friend-foe” distinction and his claim that it is fundamental to the category of the political. The distinction itself, and the relation between the distinction and sovereignty, is, however, also banal. Every faculty member nowadays receives warnings about the export of information of certain kinds to certain nations—a form of legislation against trading with the enemy. This is a pure instance of sovereign power defining who the enemy is, in a literal sense. The act of doing so is quintessentially political rather than private. Whether it is constitutive of “the political” is a matter of metaphysics. As law, it is quotidian.

Schmitt made the point, against other legal thinkers, that judicial interpretation was largely unfettered, and that its consistency reflected the class attitudes of judges rather than “the law.” Perhaps this was extreme. But is it really inapplicable to present judicial activity? The idea that the letter of the law is the law, that, as Kelsen put it, there are only two ways to interpret law, the text and legislative intent, is certainly not what “sophisticated” legal thinkers in the United States today accept. They think that this is a way of thinking appropriate to and adhered to only by non-elite lawyers. Judges and elite lawyers believe instead that judicial decision-making is a form of public policy-making, and that it should be. And they are comfortable with the idea that this is and should be the province of a like-minded elite. Is this so different from the extreme views of Schmitt? Only in the composition of the elite.

Kelsen wrote a famous paper on the legality of the Nuremberg trials[3] that probably reflects the international consensus on the subject today. He explained how and in what sense they were legally authorized, and in what sense they were not. Kelsen’s verdict on the Pact of Paris, which was used as a basis for some of the charges that criminalized  acts of war, also reflects the consensus. Kelsen asked whether this trial should become a precedent in international law, that is to say become customary international law by virtue of the fact that it was carried out. Why should it not have? It was victor’s justice, and would have been a precedent for more of the same, regardless of who the victors were and what their moral credentials were.  These considerations led to the creation of the International Criminal Court, which has been subject to its own criticisms for partisanship, particularly for its focus on Africans, and is not supported by the United States precisely because it would be a political weapon against it.

Schmitt, however, is making a bigger point about the transformation of wars into moral crusades, and the practice of criminalizing national leaders who start wars. How radical is he? Not very. Most of the world rejects, in practice, the model of the New World Order policed de facto by the United States, promoted originally by President Wilson and revived repeatedly, especially by the first Bush administration. The Russians stymied it in the United Nations during the Cold War, and did so again, with the support of virtually the whole world, when the second Bush administration attempted to enforce the rules against Saddam Hussein.

That the interventions carried out on this model—of characterizing enemies as criminals—have not worked is not terribly controversial. It is the point of Henry Kissinger’s recent book, World Order (2014), that the Westphalian model, which Schmitt largely follows, and which does not criminalize war, is the best system for world order. And Kissinger, without mentioning Schmitt, recognizes explicitly and at length that other countries favor different models of world order from the Wilsonian one.

Schmitt’s model was somewhat different. He generally followed the Westphalian model, but recognized the need of great powers to regulate their own neighborhoods and to keep other great powers out of their back yards. His publicly-stated model was the Monroe Doctrine. Rather than non-interventionism, he thought that intervention should be limited to bordering countries. To be sure, this fit with and justified Nazi practice. But it was also consistent with historical practice in Central Europe in the 19th century, when Russia played the role of regional policeman.

Is this such a bad model? That it was the model of the Nazis and President Monroe and is now Putin’s should not distract us. If the main aim of foreign policy is to prevent great-power conflict, it is not only credible, but in line with the world system that is emerging today, with Russia, China, and Iran acting as regionally dominant players, flouting both the U.N. rules of non-intervention and the Wilsonian model. And it is worth noting that, despite victories over Germany in two world wars to prevent its happening, Germany is the hegemonic European power today.

Schmitt was a Nazi and an opportunist. But he had reasons for thinking that totalitarian parties would inevitably triumph in Europe. So did most of the Continental intellectuals of the time—though most of them became either communists, or socialists of a kind that was not friendly to liberalism. In 1941, it looked as if they were right; Europe was divided between fascists and communists, Switzerland, and a socialist Sweden. Without American intervention, it might have stayed that way.

One of the ironies of Schmitt’s reception is that his vividly expressed ideas, many of which were actually banalities shared with “liberal” thinkers, became sinister, famous, and in a perverse way fashionable because he had been a Nazi. But his distinctive vision, best exemplified in his signature claim that from the 17th century the state and the idea of the state had begun a tragic dissolution into liberalism as a consequence of the recognition of freedom of conscience, came from another source: the Grand Inquisitor Catholicism which he consistently expressed throughout his long career.

[1] Edward Shils, “The Antimonies of Liberalism,” in The Virtue of Civility: Selected Essays on Liberalism, Tradition, and Civil Society, edited by Steven Grosby (Indianapolis: Liberty Fund, 1997), pp. 123, 187.

[2] Friedrich Meinecke, Idee der Staatsraison in der neueren Geschichte (Munich: Druck und Verlag von R. Oldenbourg, 1924).

[3] Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?”, International Law Quarterly 1 (Summer 1947), 153-171.