Rethinking the Political Horizon of Liberalism

At the outset of his provocative Liberty Forum essay, Jeremy Rabkin notes that the most remarkable thing about Carl Schmitt is “his appeal to contemporary academics in the English-speaking world.” Schmitt’s literary afterlife and the current level of interest in his works are, indeed, surprising given his infamous political trajectory and his ambiguous and unconvincing postwar attempts to come to terms with—and account for—his past political pirouettes. (He refused to comply with the procedures of denazification, and lived out the rest of his long life in West Germany, dying in 1985 at age 97.)

As Rabkin notes, there are currently no fewer than 13 books of Schmitt available in English that have received significant attention from a wide audience consisting mainly (but not exclusively) of jurists, political theorists, and philosophers. Between 1980 and 1990 there were only five references to Schmitt in law journals. Their number rose to 114 in the next decade, and to 420 in the period between 2000 until 2010, with almost twice as many from 2005 to 2010 as the previous five years.[1] Schmitt’s legal and political thought has also been the subject of many books that comment on his scholarly achievements while also pointing out their dangerous aspects.[2]

While all of these works offer different accounts of Schmitt’s personality and writings, they all prove the enduring and paradoxical appeal of his ideas. This is further demonstrated by the fact that Schmitt has been studied by scholars and journalists on both ends of the political spectrum, which puts him in a select group, along with Tocqueville, Rousseau, and Burke. Some have gone so far as to offer apologetic interpretations of Schmitt’s works, presenting him as a profound, difficult, and isolated thinker, detached from any official propaganda. Others have offered a caricature of Schmitt’s works by regarding him only as a clever advocate of the Nazi regime.

Rabkin belongs to neither of these groups. After surveying the key aspects of Schmitt’s works—his theory of the political, his “decisionism,” his critique of liberal parliamentary government, his account of democracy, emergency powers, dictatorship, and international law—the end of his essay brings this conclusion: “Whatever is wrong with liberalism is not going to be fixed by Carl Schmitt.” This seems like a polite but firm dismissal of a thinker whose ideas we continue to find unsettling and fascinating.

The surprisingly wide appeal of Schmitt’s writings cannot be attributed only to the fashion of the day but warrants further consideration. In Rabkin’s opinion, Schmitt’s renaissance “reflects a tide of academic disdain for the liberal institutions and principles that Schmitt had so mocked.” Undeniably there is some truth to this claim. In spite of his own confession[4], he played his inquisitorial role with a vigor matched only by the fiercest and most immoderate critics of liberalism, such as Joseph de Maistre, Juan Donoso Cortés (whom Schmitt appreciated), Karl Marx, or V. I. Lenin.

It is tempting to use Schmitt’s works for various political agendas, as Giorgio Agamben, Chantal Mouffe, and others have done.[3] As a fierce critic of parliamentary liberalism, the German jurist practiced, in Rabkin’s words, “intellectual negation on a grand scale.” His understanding of the political, his “decisionism,” and his discussion of extralegal power have also been major selling points.

In The Concept of the Political (1927), originally published during the Weimar Republic, Schmitt singled out the distinction between friend and enemy as the core of the political and argued that “the high points of politics are simultaneously the moments in which the enemy is, in concrete clarity, recognized as the enemy.” In turn, decisionism implies, as Rabkin points out, “taking a stand without hesitation” and conveys “intensity of commitment,” two qualities often praised.

We should not be surprised then that Schmitt’s firm position has paid off. Many of us are usually enthralled by allegedly “strong” virtues—courage, prowess, fearlessness and so forth—that are often seen as incompatible with political moderation. These are the virtues of the “lions” of this world for whom everything seems permissible, even “divine” violence if exercised properly and by the right people against the allegedly “systemic” violence ingrained in our political and economic systems.[5] Political moderation may be the touchstone of contemporary representative regimes, but its common (and false) image remains that of a virtue associated with weakness, indecisiveness, and opportunism. As such, it is unlikely to quench the thirst of those seeking for grand adventures and passionate commitment.

That is why those who feel increasingly alienated from modern society are likely to be more attracted to “prophets of extremity”[6] like Carl Schmitt than to the expositors of classical liberal principles such as free and open debate or balance of powers, as Rabkin indicated. Thinkers like Schmitt are always going to get more attention from those searching for radical cures for the ills of liberal modernity than are the likes of François Guizot (1787-1874), who defend the juste milieu and believe in publicity and discussion. According to the liberal orthodoxy—Schmitt singled out Guizot as the most representative figure in this regard—the principles of representative government require that different branches of power be forced to discuss and seek the truth together, and that freedom of the press and openness place these powers under the control of the citizens. On this view, publicity alters the nature of the interaction between government and society and is supposed to bring forth more transparency in the social and political sphere.[7]

Schmitt so strongly disagreed with this view that the term “political moderation” is absent from his vocabulary. He had a rather negative view of institutions such as parliament, and of key liberal principles such as rule of law, regarding these as ambiguous, indeterminate, and incapable of producing effective decisions. This dismissive attitude—Rabkin is right to insist on this point—is likely to appeal to many who are disenchanted with the ineffectiveness of our representative institutions and decry the ever-stronger influence of money and lobbying groups in politics. They usually tend to agree with Schmitt’s characterization of the institutions of parliamentary government as trivial formalities—as mere decorations meant to hide the fact that our political parties no longer “face each other today discussing opinions, but as social or economic power-groups calculating their mutual interest and opportunities for power,” as Schmitt wrote in The Crisis of Parliamentary Democracy.

I would like to suggest a second possible explanation for Schmitt’s wide appeal: his political eclecticism. A closer look at Schmitt’s career reveals that he had, in fact, an outstanding capacity for quick accommodation and a marked propensity for ambiguity, even if he remained to the end obsessed with the issue of legal indeterminacy and the limits of liberal constitutionalism.

Before joining the National Socialist Party in 1933, Schmitt had advocated political Catholicism and the policies of Heinrich Brüning, who was at the time the leader of the Catholic Center Party. After he moved to Berlin in 1928, he gained the confidence of two influential politicians, Johannes Popitz, a high civil servant (later executed by the Nazis after a failed attempt to assassinate Hitler), and General Kurt von Schleicher. He eventually became a constitutional advisor to the Hindenburg government. In that capacity, he advocated as late as 1932 (in his ambiguous essay Legality and Legitimacy) the use of extra-parliamentary decrees and emergency powers in support of the endangered Weimar Republic, while also deepening his critique of the liberal legal jurisprudence.

Schmitt had previously analyzed the Republic’s constitutional framework in an important book, Constitutional Theory, originally published in 1928. I wish Rabkin had paid some attention to this volume, which shows that Schmitt’s legal doctrine was not always couched, as Rabkin claims, “in such a way as to incite an extremist contempt for law.” To take just one example among many, Schmitt’s discussion of the theory of monarchy offers a highly technical and sophisticated justification of constitutional monarchy and includes, among other things, an interesting discussion of neutral power, a key element of Benjamin Constant’s liberal constitutionalism outlined in his Principles of Politics (1815). The same is true of what Schmitt has to say in Constitutional Theory about the aristocratic elements in modern bourgeois-Rechtstaat constitutions, observations that echo some themes present in Montesquieu’s  Spirit of the Laws (1748).

In May 1933, Schmitt, notwithstanding his Weimar past and his Catholic leanings, changed sides and joined the new National Socialist government. He was entrusted two years later with drafting the legal framework that was supposed to consolidate the Nazi takeover of the state. The following year, in 1936, he was involved in organizing an infamous conference on “German Jurisprudence in Struggle against the Jewish Spirit.”

In Rabkin’s view, the volte-face was surprising but not inexplicable given the fact Schmitt’s first major book published in 1921 was on dictatorship, a concept that had long fascinated him. Whether or not this was a matter of sheer political opportunism or, as Rabkin inclines to think, a move consistent with Schmitt’s larger, perhaps nihilist, outlook, remains an open question. How are we to account for the existence of both continuities and discontinuities in his works? I am not in a position to offer a definitive answer to this question, but would like to invoke again Schmitt’s political eclecticism undergirding his attempts to deal with the issue of liberal legal indeterminacy.[8]

Let me turn now to Schmitt’s understanding of the political, an important point discussed in Rabkin’s essay. One often gets the impression, reading Schmitt, that the political becomes identical with life and risks suffocating it. On his reading, being political means not only “being oriented to the ‘dire emergency,’” (as Leo Strauss phrased it in his commentary on Schmitt) but, more generally, an inescapable characteristic of the entire human life; one ceases to be a man if one ceases to be political. Life is rife with antinomies and tensions and, as Schmitt himself put it, “the political is the most intense and extreme antagonism” centered around the distinction between friends and enemies. One of the implications of this view is that life can never be fully depoliticized and, according to Schmitt, “the demand for depoliticization . . . means only the rejection of party politics,” which is a utopian and unrealistic goal.

I am not convinced of this claim and believe, in fact, that the lives of ordinary people are lived in most cases in areas which the political rarely manages to occupy entirely. Nonetheless, if the political takes over and permeates the other spheres of society, “it is a sign that the individual has been reduced to a cog in a car engine and has no clear idea of who the driver is and where he is driving.”[9] This is not the normal case, but rather the exception. There is a whole realm beyond or outside of politics and law that is even more important than the political sphere and must be duly protected against the encroachment of the latter. This realm exercises, in turn, some influence over the political; it is not characterized by inescapable conflicts or a war of all against all, as Schmitt believed. It is surprising to note that while Schmitt was well read in theology, he glossed over the fact that the political does not have answers to all the fundamental questions regarding the meaning of life, which are bound to remain open-ended.

It might be useful to briefly contrast Schmitt’s understanding of the political with that of the Italian philosopher Norberto Bobbio (1909-2004). The two of them actually had an interesting correspondence from 1948 until 1980 in spite of their political differences.[10] Where Schmitt (from the Right) saw only destruction and decline, Bobbio (from the Left) perceived opportunities for action and change. While the former emphasized decisionism and the distinction between friend and foe as the core of politics, Bobbio gave pride of place to an unconventional virtue such as meekness (mitezza), which was a key facet of his political moderation and his politics of dialogue. His choice of meekness as the primary virtue had a mostly historical justification, “as a reaction to the violent society in which we are forced to live.”[11]

To understand the peculiarity and complexity of meekness, it is best to start with the distinction Bobbio drew between “strong” and “weak” virtues. The first type includes the courage, prowess, and fearlessness that are characteristic of the powerful, those who found, lead, and govern states—the “lions” of this world, as I noted. The category of “weak” virtues includes those practiced often by inconspicuous individuals, the “lambs” of the world. Meekness, Bobbio argued, is not to be conceived as a virtue of the weak because a meek person can possess, appearances notwithstanding, real strength. The meek seek to curb and “repudiate the destructive life out of a sense of annoyance for the futility of its intended aims”; they are opposed to violence and the cult of force.

As such, meekness can serve as antidote to fanaticism and the libido dominandi of the powerful and the great. It is not an accident that Bobbio chose Erasmus and his Christian humanism as an ideal model for his own political moderation. His virtue was the meekness with which he opposed religious fanaticism and the lust for power in all of his writings.

As Rabkin reminds us, Schmitt’s outlook has no place for such a virtue. How could it be effective in curbing appetite for power and the universal inclination to violence inherent in human nature? By invoking Bobbio’s conception of mitezza and the type of politics that gives priority to meekness, I want to suggest an alternative way of understanding the political that differs from Schmitt’s. The friend-foe distinction, it can be argued, misrepresents the essence of politics. To paraphrase Rabkin, whatever is wrong with our understanding of politics is not going to be fixed by reading and taking inspiration from Schmitt, a highly combative and “prosecutorial” thinker.[12] But I also want to acknowledge that it may still be important to read a provocative, dangerous, and hermetic author such as Carl Schmitt whose legal and political thought, flawed as it may be, is more complex that Rabkin would have us believe.

This complexity is seen in another important book of Schmitt that he did not cite: Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (“The Nomos of the Earth in the International Law of Jus Publicum Europaeum”). Written for the most part before 1945 but published only in 1950, this volume made a notable contribution to the study of war and international relations. (Among those who recognized its importance was Raymond Aron, who used it as a key reference point in his Peace and War: A Theory of International Relations {1966}.)

The question remains: Why should we still read or care about Schmitt, whose attempt to formulate an alternative to liberal jurisprudence led him to embrace the ideas of National Socialism and reject the very principles on which the political order of postwar Europe was based? Perhaps it has something to do with what Isaiah Berlin once confessed:

I am bored by reading people who are allies, people of roughly the same views, because by now these things seem largely to be a collection of platitudes because we all accept them, we all believe them. What is interesting is to read the enemy, because the enemy penetrates the defenses, the weak points, because what interests me is what is wrong with the ideas in which I believe—why it may be right to modify or even abandon them.[13]

Schmitt’s works are a good case that proves Berlin’s point. Clever and dangerous thinkers such as the author of The Concept of the Political can point up the flaws or weak points in our arguments and thus help sharpen and improve our ideas.

[1] See David Luban, “Carl Schmitt and the Critique of Lawfare,” Georgetown Public Law and Legal Theory Research Paper No. 11-33, 2011, p. 10.

[2] As an example see Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-war European Thought (Yale University Press, 2003). Schmitt has also been quite popular in France and Italy.

[3] Also the affinities between Schmitt, Schumpeter, and Hayek are discussed in William Scheuerman, Carl Schmitt: The End of Law (Rowman and Littlefield, 1999), which offers a detailed analysis of Schmitt’s critique of the liberal rule of law. Schmitt’s influence on international relations is discussed in Scheuerman, pp. 225-51, as well as in Philippe Raynaud, “Raymond Aron lecteur de Carl Schmitt,” Commentaire 148 (Winter 2014-15), 813-18.

[4] In a work published in 1950, Ex Captivitate Salus: Erfahrungen der Zeit 1945-1947 (“Delivery from Captivity: Experiences from the Years 1945-1947”), Schmitt offered the following self-portrait: “I am no good either as a defendant or as an accuser. And yet I always prefer to be the defendant rather than accuser. The j’accuse types may have their role to play on the world stage. For me, the prosecutorial is even more uncomfortable than the inquisitorial.” I use here the translation of Guy Oakes. See Carl Schmitt, Political Romanticism, translated and with an introduction by Guy Oakes (MIT Press, 1986), p. xii. Schmitt’s public persona shows, in fact, a rather highly offensive and combative thinker, who always chose major targets which he then proceeded to attack.

[5] On weak and strong virtues, see Norberto Bobbio, In Praise of Meekness: Essays on Ethics and Politics, translated by Teresa Chataway (Polity, 2000), p. 26.

[6] I borrow this phrase from Allan Megill, Prophets of Extremity: Nietzsche, Heidegger, Foucault, Derrida (University of California Press, 1985).

[7] See François Guizot, History of the Origins of Representative Government in Europe, edited by Aurelian Craiutu, translated by Andrew R. Scoble (Liberty Fund, 2002), pp. 53-55, 345-56.

[8] The importance of political theology for Schmitt is highlighted in Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy (University of Chicago Press, 1998).

[9] Norberto Bobbio, The Future of Democracy, translated by Roger Griffin, edited by Richard Bellamy (University of Minnesota Press, 1987), p. 73.

[10] The Schmitt-Bobbio letters (20 in total) were edited and published by Piet Tommissen in Diritto e Cultura, Vol. V, No. 1, (January-June 1995), 49-81. Bobbio’s most interesting letter was sent on December 10, 1950, in which he insisted on their differences. Schmitt, in his last letter sent in February 1980, summarized the affinities between them as follows: “Wir sind beide Berufjuristen und nicht Berufsrevolutionäre.” (“We both are professional jurists, not professional revolutionaries.”)

[11] Bobbio, In Praise of Meekness, p. 34.

[12] I borrow this term from Guy Oakes (Political Romanticism, p. xii).

[13] “Isaiah Berlin in Conversation with Steven Lukes,” Salmagundi 120 (Fall 1998), 90.