Springtime for Schmitt? Jeremy Rabkin Responds to His Critics

I am grateful to the other contributors to this forum for enlarging our discussion of Carl Schmitt. They have not persuaded me to temper my own conclusion: Schmitt offered a great deal of poison, which is not rendered more palatable by his large admixtures of well-aged snake oil.

Perhaps the best way to explain my obduracy is to take up Aurelian Craiutu’s suggestion that Schmitt critics must reckon with his postwar book, Nomos of the Earth (1950). The modern state, Schmitt says there, was the answer to the “European civil war” provoked by the Reformation. The Peace of Westphalia not only acknowledged that different states could have different religions; it also encouraged the view that conflicts among European states should not be “crusades” but limited conflicts—from which bystanders could reasonably stand aloof, as respectable “neutrals.” Under this dispensation, Schmitt says, a war between sovereign states was something like a “duel” between gentlemen, rather than the “war of annihilation” fought against pirates, brigands, or rebels.

Nomos then blames Britain and America for undermining the European law of war by reintroducing moralistic claims to “discriminate” against the belligerent rights of particular sovereign states. In the 20th century, they invoked this to justify extreme measures, like food blockades and aerial bombing, which these powers just happened to be uniquely prepared to exercise as off-shore powers with large navies and long-range bomber fleets.

There is a good deal of solid history and insight in Schmitt’s account, even if Schmitt (characteristically) inverts the perspective that Anglo-American publicists expounded. (Readers who want to assess the Anglo-American view, over the past 200 years, can consult my article, “Anglo-American Dissent from the European Law of War,” available on SSRN.)

Tellingly, Nomos accepts that European states could be guided or constrained by international (or European-wide) norms, even though there was no European-wide sovereign to proclaim or enforce them. Schmitt acknowledges that these norms were often violated but still insists that they exerted a continuing, constraining influence for several centuries. The ongoing influence of these norms was not negated by the lapses and exceptions, as in the wars against Napoleon.

Schmitt then argues that the Allies finally destroyed the traditional norm by demonizing the Nazi regime, as if all political designations (like “demonic” or “evil”) were arbitrary assertions, answering only to the advantage of those who deployed them. So the “norms” Schmitt does embrace stand outside every other normative frame of reference.

One can see how distorting this perspective is if one thinks about Schmitt’s own analogy. “Dueling” between gentlemen was supposed to remedy real affronts. If someone repeatedly initiated duels for no reason recognizable to “neutrals,” he would have been marked as a brawler or gunslinger, rather than an actual gentleman. A duel was supposed to satisfy a challenge to personal honor, such as an insinuation of cowardice. No one thought it sufficient to leave a dueling scar on the adversary’s cheek, if the provocation were something so extreme as the rape or murder of an immediate relative.

In Schmitt’s famous prewar writings on domestic institutions, meaningful norms vanish altogether, leaving only a free-standing, self-oriented “sovereign.” So the possibility of exceptions seems to negate the authority of “law,” even constitutional law. “Sovereign is he who decides on the exception,” Schmitt proclaims in Political Theology: “The rule proves nothing; the exception proves everything.” But the fact that an emergency may justify extreme measures—such as the suspension of habeas corpus—does not prove there is no law. It only reveals that, in exceptional circumstances, the letter of the law must yield to what is necessary to safeguard the object of law.

Schmitt’s view is only plausible if one insists that the choice is categorical adherence to law or a completely arbitrary power outside law—what he calls “sovereignty.” It looks plausible only if there is no set of norms beneath law, which help us test the reasonableness of the exception. That test might well be applied in the aftermath by courts or by a legislative impeachment—or a popular revolt.

People are bound to disagree about norms and their application to particular cases? That is Schmitt’s point about parliamentary debate. It is a sham, he says in The Crisis of Parliamentary Democracy, because parties are committed to their constituencies rather than the logic of arguments offered by opponents. That depiction only looks compelling if one goes along with the characteristic Schmittian move of viewing institutions in isolation from their larger political or “normative” context.

If it were true that parties are simply mouthpieces for fixed elements of the electorate, every election would have roughly the same outcome. That was not even true in the brief electoral history of the Weimar Republic. Voters are not simply party loyalists, but citizens with ongoing concerns affected by events and political outcomes. And their reactions are often much affected by background norms more widely shared than particular party platforms.

I acknowledge Stephen Turner’s point that Schmitt paid closer attention to American history than most European thinkers of his time. I don’t agree that American readers can therefore learn a lot from Schmitt’s depictions of American politics or policy. In particular, I see no merit in Schmitt’s analogy between the Monroe Doctrine and Germany’s murderous subjugation of Eastern Europe—which hinges on a characteristic Schmittian abstraction from the context, above all the normative context.

I do very much agree with Prof. Craiutu’s conclusion that Schmitt exaggerates the importance of “the political” in human life. That is so, even in government and “politics,” where issues very rarely boil down to “friends” vs. “enemies” in Schmitt’s sense. There are background normative assumptions that restrain the enmity of opposing political forces, particularly in the same country. That is one reason we are rarely afraid to mingle with fellow citizens whose party affiliations we do not know.

I take Hans Eicholz’s point that the categories we employ to discuss or debate political decisions—to use my terms here, the “norms” against which we evaluate them—may not be “self-evident” to everyone. Skeptics may simply regard our further appeals to these norms as self-serving. They will deny that these norms are grounded in disputes about facts or logic and insist that our differences are irreducibly “political.” I agree that is Schmitt’s point. But if everything is “political,” all the way down, one might as well be a Nazi. That was also Schmitt’s point.

Schmitt showed his commitment to this point by refusing to renounce his Nazi associations after the war—and for four decades thereafter. There was, he insisted, a European norm guaranteeing the right to resort to war but not limiting the basis for war—or limiting in any way what a “state” could do to its own people. Each state has a right to make war but no people has a right to make a revolution.

Claims that American policies after 9/11 were grounded in Schmittian doctrines assume no one in the Bush administration thought they could—or thought they needed to—explain their actions in relation to widely shared norms. Such claims could be easily refuted—in arguing with anyone willing to listen to argument and reason. Schmitt’s thought remains of most interest to people so filled with anger and animus that they don’t want to reason about anything. They want to be “political” in the Schmittian sense—that is, in the very worst sense.