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Leviathan Run Aground:

Carl Schmitt’s State Theory and Militant

Benjamin A. Schupmann

Submitted in partial fulfillment of the

requirements for the degree

of Doctor of

in the Graduate School of Arts and Sciences

COLUMBIA UNIVERSITY

2015

©2014

Benjamin A. Schupmann

All reserved

ABSTRACT

Leviathan Run Aground:

Carl Schmitt’s State Theory and Militant Democracy

Benjamin A. Schupmann

Can a commit suicide? How should a liberal democratic state respond when social movements threaten war with one another and against the state itself? How should liberal democrats respond when extremist parties are strong enough to cooperate in parliament and obstruct essential legislation? Can an illiberal antidemocratic party legitimately obtain power through elections and then kick the ladder down by legally amending democracy and out of the constitution entirely?

Beginning in 1929, theoretical questions like these suddenly became both practically and existentially relevant for Weimar . The share of the vote Nazis and Communists received in elections swelled until, combined, they were the majority. Neither movement accepted the of and both were explicit that their only goal in running for seats in parliament was to gain a strong enough majority to amend the out of existence. Until then, they cooperated across the aisle, so to speak, to constitute negative majorities and prevent the SPD, Zentrum, and parties from being able to pass legislation to respond to the economic, social, and political crises Weimar faced. By 1932, the Nazis held a plurality. In January 1933, exhausted with alternatives, Hindenburg appointed Hitler Chancellor.

This dissertation extrapolates Carl Schmitt’s state theory and looks at how it was conceived in response to Weimar’s legitimation crisis. It shows how Schmitt looks back to the of state theory to address this crisis. In particular, it shows how he models his solution on , whose Leviathan was also a response to civil war and the breakdown of political order. This dissertation argues Schmitt updates Hobbes’ state theory to respond to the unique problems of the 20th century, especially modern mass democracy. Modern mass democracy was the product of universal suffrage, mass media, and advances in . Disingenuous social movements exploited the media and whipped up an emotionally charged base, obtaining for themselves a veneer of democratic legitimacy and the means to parliament. Once in parliament, they exacerbated Weimar’s crises and struggled against each another to advance their particular goals. Schmitt saw these conflicts as the 20th century equivalent of the Confessional Civil Wars and he saw himself as the 20th century Hobbes. He theorized ways to neutralize those conflicts and restore the state’s sovereign .

But, besides that, Schmitt thought these issues begged the basic question of : are there any objective limits to a goal “the people” want, even if 99 percent of citizens support that goal? Can “the people” legitimately be bound to the mast? Can democracy be tyrannical?

Schmitt’s peers, such as and Richard Thoma, answered in the negative and argued that there was no basis to deny a democratic will that had formed through proper procedures. Schmitt disagreed. He argued the constitution imposed hard limits on democracy. Through this answer, this dissertation argues Schmitt’s state theory anticipated what is today known as militant democracy. Militant democracy is a type of liberal democratic constitution that guards against certain forms of popular and prevents constitutional suicide. Its institutional mechanisms include the entrenchment of core constitutional principles, such as basic rights, and political bans on certain illiberal and antidemocratic parties. Although one finds militant democracy embedded in around the world today, it has been undertheorized. Because Schmitt’s theory of militant democracy rests on his substantive state theory, this dissertation concludes he offers us a foundation for developing a normative theory of militant democracy – something invaluable for making sense of its legitimacy and its limits today.

Contents Acknowledgements ...... iv Introduction: Constitutionality and the Weimar Crisis...... 1 1. “Was ist verfassungsmäßig?” ...... 1 a. Left-Wing Extremism: The Communist Movement and the KPD ...... 5 b. Right-Wing Extremism: The Nazi Movement and the NSDAP ...... 6 c. Hindenburg’s Oversight and Hitler’s Insight ...... 7 2. Si fractus illabatur orbis: Assessing Schmitt’s State Theory ...... 11 Complexio Oppositorum: Carl Schmitt’s Intellectual Context ...... 16 1. Neo-: Kantian Method without its Metaphysics ...... 18 a. Neo-Kantian Philosophy ...... 18 b. Neo-Kantian Legal Theory ...... 24 2. Neo-Hegelian : The Emergence of Recht out of ...... 29 3. Pluralism: A Challenge to the Legitimacy of the State and the Political ...... 33 4. Conservativism: Conservativism with Nothing to Conserve ...... 35 Quid est Veritas? Quis Judicabit? Political , Disenchantment, and Political Crisis ...... 44 1. The Political and the Persistence of ‘Theology’ ...... 48 a. Schmitt’s Early Writings: The Hiatus of Neo-Kantian ...... 49 b. : Recht and the Sovereign Auctoritatis Interpositio ...... 54 c. Political Theology Reformulated? Roman Catholicism and Political Form...... 57 d. Quis Judicabit? Late Formulations of Political Theology ...... 59 e. The Epistemological Problem of the Hiatus Irrationalis ...... 63 2. Political Theology and Disenchantment ...... 64 a. Political Theology: Schmitt’s First Formulation of the Disenchantment of the State ...... 65 b. Stages of Neutralization and Depoliticization: Schmitt’s Revised Formulation...... 69 c. A World Robbed of Gods, Dominated by Impersonal Forces ...... 73 3. Political Theology in Weber’s Critique of Stammler ...... 78 The Miserable Condition: Modern Mass Democracy and the Collapse of the State ...... 80 1. Better Talk Had Gone: 19th Century Liberalism ...... 83 a. Liberal Metaphysics: The Theoretical Underpinnings of the 19th Century State ...... 84 b. The 19th Century State: Liberté and the Legislative State ...... 86

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2. The 19th Century State under the Strain of Modern Mass Democracy ...... 88 a. The Interrupted Dream of Natural : Old Gods Ascend from Their Graves ...... 89 b. Modern Mass Democracy: Warring Gods in the Arena of Parliament ...... 94 c. Manipulating Mass Democracy ...... 95 d. Structural Transformation: The Birth of the Quantitatively Total State ...... 99 e. potestas indirecta: Apocryphal Acts of Sovereignty in Parliament ...... 102 f. Mass Pathos and Plebiscitary Democracy ...... 104 3. Mere Anarchy is Loosed: Pacta Sunt Servanda and the State of War ...... 107 Status Par Excellence: The Concept of the Political ...... 111 1. The Political and the State...... 113 a. Schmitt and Jellinek on the Political ...... 114 b. Raison d’État and Ratio Status: Schmitt’s Critique of Meinecke ...... 117 2. The Political: Enmity, Friendship, Relativizing Status ...... 119 a. “Negated Otherness”: Schmitt’s Hegelian Point of Departure ...... 119 b. Friendship and Enmity: Ancient Political Community ...... 121 c. Friendship as Status Par Excellence ...... 124 3. The Political: Status, Sovereignty, and Representation ...... 128 a. The Authority of the Political: Relativizing Status as Sovereign ...... 130 b. Representation I: The Model of Suprapersonal Rule in the Church’s Office Charisma ...... 134 c. Representation II: Hobbes and The Artificial Personhood of Political Status...... 137 Magnus Homo: Carl Schmitt’s State and Constitutional Theory...... 142 1. Above and Below: The Great Man and Technical Perfection ...... 147 a. Qualitative Totality: Positive Neutralization and Depoliticization ...... 147 b. Machina Machinarum: Protection and Obedience in Schmitt’s State Theory ...... 150 c. Human “Evil,” Imperium Rationis, and The Mythical Totality of Leviathan ...... 154 d. Potestas Directas: Reason and Transcendence ...... 159 2. Constitution as a Political and Existential Phenomenon ...... 161 a. Constitution as Status: The Absolute Constitution (Constitutional Theory §1) ...... 161 b. Constitution as Decision: The Positive Constitution (Constitutional Theory §3) ...... 164 c. Constitution Politicized: The Ideal Constitution (Constitutional Theory §4) ...... 165 d. Constitution as Written Statute: The Relative Constitution (Constitutional Theory §2) ...... 166 e. ...... 169

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3. : The Constitution and the Exception...... 171 a. Exceptional Order: Dictatorship as Defensor Pacis ...... 172 b. The Absence of Order: Dictatorship as Creator Pacis ...... 177 c. Commissarial Dictatorship in Liberal Democracy ...... 184 The Absolute Constitution of 20th Century Liberal Democracy: Carl Schmitt and Militant Democracy .. 191 1. Carl Schmitt’s “Relentless” Illiberalism ...... 193 2. Weimar’s Constitution and Counter-Constitution ...... 196 a. The Prevailing Interpretation: Democratic Value-Neutrality and the Relativized Constitution197 b. Schmitt’s Critique of Weimar’s “Functionalist Value-Neutrality” ...... 201 c. The Counter-Constitution: Basic Rights and Politically Decisive Liberalism ...... 203 d. Schmitt’s Rights Typology ...... 206 3. Defending the Absolute Constitution of the bourgeois ...... 208 a. Limitations on Negative Majorities ...... 208 b. Bans on Unconstitutional Parties ...... 209 c. The Federated State [Bundesstaat] ...... 210 d. Reflections from Bonn ...... 212 4. Carl Schmitt, Karl Loewenstein, and Militant Democracy ...... 214 a. Karl Loewenstein’s Militant Democracy ...... 216 b. An Alternative Rights-Based State Theory...... 218 Conclusion: Quis Custodiet Ipsos Custodes? ...... 226 1. The Significance of Carl Schmitt’s State Theory ...... 228 a. Reinterpreting Schmitt ...... 228 b. Redefining Militant Democracy ...... 231 c. Schmitt and Militant Democracy Today ...... 233 d. Democracy as Procedure versus Democracy as Status ...... 239 2. Beyond Schmitt ...... 240 a. Kelsen’s Critique of Schmitt ...... 240 b. Militant Democracy Today ...... 243 Works Cited ...... 248 Appendix ...... 268

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Acknowledgements

Acknowledgements

Scholarship cannot occur in a vacuum. Without the help of many others, this dissertation could never have been completed. I would like to thank, first and foremost, Jean Cohen and Nadia Urbinati for their role in bringing this dissertation to its completion. Throughout, they carefully read drafts of chapters, discussed emerging ideas, and shared insights, comments, and constructive criticism that helped shape this dissertation into what it has become. Jean first introduced me to Carl Schmitt in seminars I took with her in my first year at Columbia. This dissertation actually began then as the seminar paper “Carl Schmitt’s Concept of Representation.” Jean kept me centered throughout by challenging my assumptions and pushing me to clarify my thoughts and writing through countless discussions. And she kept my feet on the ground, so to speak, by pressing me to draw out the contemporary relevance of Schmitt’s theory. Jean’s thoughtful observations have helped me to bring to life many ideas and to assemble those ideas into a coherent whole. That initial seminar paper became something more after Nadia Urbinati read it and remarked “It has great potential – but it is not about representation at all. This is state theory.” Nadia served as the midwife, so to speak, of ideas that would have otherwise been stillborn and helped draw out connections that I would otherwise have missed. She showed me how to best link Schmitt to the history of political thought, in particular bringing Schmitt’s intellectual debt to Hegel into focus. And she connected me to Italian scholars working on Schmitt, which provided another important dimension of understanding beyond the sources I had already consulted. Both Jean and Nadia have been phenomenal teachers and mentors and I am indebted to both in more ways than I could possibly express here.

David Johnston helped to bring clarity to my ideas. On many occasions, he patiently listened and discussed how to express my nascent ideas best in writing. He has also drawn my attention to contributions and insights from theoretical that I might have otherwise missed. And finally, David's expertise has been invaluable in reconstructing Schmitt’s relationship to Hobbes, which eventually became the core of this dissertation.

Sam Moyn has been one of my sharpest readers and he manages, succinctly, to penetrate to the core of my arguments (and at times anticipating arguments I have not expressed in writing). His comments and suggestions have helped me to think of this dissertation as more than just the sum of its parts. I am especially grateful for his patience in reading through several early drafts of chapters. Andreas Kalyvas kindly shared his extensive knowledge of Schmitt with me. I have benefited greatly from his expertise in democratic theory and how he has brought it to bear in interpreting Schmitt’s work. He provided erudite feedback spanning my entire project. And he magnanimously handled those points where I disagreed with or challenged his interpretations.

As a political theorist, it's easy to forget the broader historical context from which ideas emerge. Sheri Berman played an important early role in urging me to situate Schmitt among the thoughts,

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Acknowledgements ideas, and events of Weimar Germany and the European continent by studying sources typically outside of the canon of political theory. And her sharp, penetrating comments on my proposal and early chapters directed me in a positive direction as I was just beginning. Throughout my time at Columbia, Akeel Bilgrami has been a wonderful teacher, helping me to maintain a broader perspective through engagement with the philosophy department. His early comments on a paper analyzing constitutionalism as well as on this dissertation proposal helped me gain the momentum I needed to finish this project. And I am grateful for his unwavering support and guidance.

David Rasmussen introduced me to the world of and helped me to begin down this path. He taught me to engage with the tradition of political thought comprehensively and the importance of genealogical relationships between thinkers. He introduced me to and “continental” thought. And David continued to advise me long after I departed Boston College, believing in me in moments when I thought no one else did and encouraging me to pursue my studies in graduate school. I owe David a debt I can never repay and am lucky to have him as a teacher, mentor, and friend.

A substantial amount of Carl Schmitt’s Nachlass has not been translated and learning German became an essential part of this project. I am thankful for my German teachers, Jutta Schmiers- Heller, Simona Valdean, Christine Achenbach, Olle Rhodin, and my Goethe Institut classmates for all their help with the language. Jutta in particular has been exceptionally generous, demonstrating the superhuman patience of a great teacher – especially with my early attempts at German. She was always available to discuss the meaning of certain words and concepts, to help navigate the complexities of German grammar, and to aid me in my early translation efforts.

Several of my colleagues at Columbia have patiently read and given me substantial feedback at various stages of the writing process. Axel Domeyer, Lydia Walker, Daniel Steinmetz-Jenkins, and Kevin Elliot have all shared an enormous amount of their time with me by reading and commenting on a substantial amount of this dissertation (sometimes more than once). I have also benefitted from the comments, suggestions, support, and guidance of many others. I thank Flora Davidson, , Melissa Schwartzberg, Turkuler Isiksel, Florian Meinel, David Dyzenhaus, Oliver Simons, Nehal Bhuta, Andrew Norris, Alison Brown, Richard Ned Lebow, Axel Honneth, Fred Neuhouser, Mario De Caro, Alessandro Ferrara, Luigi Caranti, Andrew Poe, Constantino Pischedda, Shane Bobrycki, Peter Cohen, Noah Rosenblum, Andreas Avgousti, Luke MacInnis, Jeffrey Lenowitz, Bjorn Wee Gomes, Sara Moller, Alex Rigas, Maria Konnikova-Hamilton, Sofia Gans, Brett Meyer, Aurélia Bardon, Rob Goodman, Jennifer Hudson, Christopher Hobson, Eric Siegel, Travis Emery, David Jensen, David Lievens, Eliza Spaulding, Katie Albert, and Chris Garos for the help and support they’ve given me during my time at Columbia.

I benefitted greatly from the generosity of George Schwab, Joseph Bendersky, Reinhard Mehring, and Gerd Giesler, who took the time to meet with me and point me in the direction of essential

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Acknowledgements manuscripts and resources as well as to discuss my ideas and impressions of Schmitt, both as a man and as a thinker. These scholars have all been exceptionally kind (and sometimes while also being exceptionally patient with my German) in sharing their knowledge with me.

This dissertation relied heavily on the use of materials I would not have been able to procure on my own. Jürgen Becker, Martin Hoppenheit, and Matthias Meusch and the rest of the staff at the Nordrhein-Westfalen Hauptstaatsarchiv in Düsseldorf have been wonderful in assisting me with accessing Schmitt's Nachlass. I also thank the Columbia University Libraries, especially Peter Bae and the rest of the staff of Columbia’s Interlibrary Loan office, for helping me to obtain countless books and manuscripts.

I am indebted to the Gillian Lindt Dissertation Research Fellowship Fund, the Deutscher Akademischer Austauschdienst (DAAD), and the Columbia University Department of Political Science for their generous financial support.

Top Taekwondo and the Columbia University Taekwondo Club have kept me sane and healthy, especially amidst all the unhealthy food and my largely sedentary lifestyle during my final year of writing. In particular, I'm grateful to Masters Lee, Bang, Yang, Choi, Yu, and Han for all their help and patient instruction with someone who could not always understand what they were trying to say. 제가 논문을 쓰는동안 정신적, 육체적으로 건강할 수 있도록 이끌어주신 탑 태권도 이훈희 관장님과 사범님들께 감사드립니다.

My parents have supported me from the beginning of this long journey. Without them, I would not have been able to start, let alone finish, this dissertation. Most of all I am thankful for Sungmi Lee, who has patiently stood beside me during my best and my worst moments of writing. She has pushed me to exceed myself and my expectations. And she has kept me from becoming too absorbed and too exhausted by my work. Without her love and support, I would have taken twice as long to produce half as much.

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Introduction

Introduction: Constitutionality and the Weimar Crisis

Rumor Schmittianus iniucundus bonis – Unknown

There is nothing people would rather believe than that the author of a book about the Leviathan licks the blood-stained boots of his subject. – Carl Schmitt, Dreihundert Jahre Leviathan

1. “Was ist verfassungsmäßig?”

Late in his life, Carl Schmitt looked back and argued the political situation of January 1933 represented a constitutional crossroads. The dilemma Reichspräsident faced over who should be appointed chancellor, which stemmed from the recent elections, was a microcosm of Weimar’s broader problem: the legitimation crisis of the twentieth century state. On one horn of this dilemma stood Kurt von Schleicher. Although he was a politically reliable figure, von Schleicher’s appointment would require Hindenburg to exercise Article 25 (the dissolution of parliament for reelections) and Article 48 (presidential emergency rule) to overcome the “negative majority” of the and the Communist Party in the Reichstag. This would mean – again – overriding democratic elections and instituting a crisis- driven executive custodial . On the other horn stood . Hitler led the Reichstag’s largest democratically elected party and promised Hindenburg a workable majority coalition, something Weimar had not had for years. But it was unclear what Hitler would actually do – and whether he could be controlled – were he appointed Chancellor. The Nazi Party’s explicit political platform included instrumentalizing democratic amendment procedures to abrogate Weimar’s liberal democratic constitution and replace it with a totalitarian state, not to mention the party’s clear racist, bigoted, and violent intentions. Yet, despite Hitler’s potential threat to the constitution, Hindenburg had grown weary of Articles 25 and 48, worrying Weimar’s constitutional legitimacy was being undermined by their overuse. Thus, toward the

Page | 1 Introduction end of January 1933, Hindenburg opted for the dilemma’s latter horn. And although Weimar’s liberal democracy would formally survive two more months, this decision was its death sentence.

Hindenburg’s decision to appoint Hitler has often been attributed to senility. Schmitt rejected this explanation, arguing instead that Hindenburg was confused about the substantive meaning of Weimar’s constitution and mired in an “oath trauma [Eidestrauma].”1 Article 42 of the Weimar Constitution bound the Reichspräsident, Hindenburg, by oath to defend the constitution. And, Schmitt thought, Hindenburg sincerely did his best to abide by that oath. But, Schmitt argued, he had no idea what the Weimar Constitution meant concretely. His confusion over his oath became especially acute when faced with a situation in which a clear majority of voters elected parties committed to dismantling liberal democracy.2 Did defending the constitution mean adhering to the outcome of democratic elections and guaranteeing the largest party, however illiberal and antidemocratic its goals may be, its right to form a governing coalition? Or did it mean exercising his constitutional authority to preemptively deny illiberal and antidemocratic parties, whatever the outcome of democratic elections, the opportunity to govern and refashion the state after their goals? Hitler or von Schleicher? Searching for an answer to this dilemma, Schmitt says Hindenburg repeatedly asked “what is constitutional [Was ist verfassungsmäßig]?” And, as we shall see, a lack of clarity stemming from indecision within the liberal democratic state itself was the source of his confusion. Because both horns seemed legitimate, Hindenburg thought to seize either exclusively would mean violating the constitution. Thus, without clarity on the fundamental meaning of the Weimar Constitution, Schmitt argued, how could Hindenburg be expected to uphold his oath?3 Schmitt thus concludes it was Hindenburg’s confusion about the

1 Frank Hertweck, Dimitrios Kisoudis, and Gerd Giesler, eds., "Solange Das Imperium Da Ist": Carl Schmitt im Gespräch mit Klaus Figge und Dieter Groh 1971 (: Duncker & Humblot, 2010), 59ff; cf. William L. Shirer, The Rise and Fall of the Third Reich: A History of (New York: Simon and Schuster, 1960), 173. 2 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 67; cf. Carl Schmitt, "The Legal World (1978)," 72(1987): 83. Interestingly, Hindenburg’s “oath trauma” also involved his earlier military oath to Kaiser Wilhelm II. Hindenburg – like many other Germans – did not think it was inconsistent with the Weimar Constitution to seek a legal, democratic way to restore the (thus upholding his earlier oath). The second aspect of the oath trauma came to light through Brüning’s plan to prevent Hitler from seizing power. Brüning (also a monarchist, in the end) believed he had found the necessary two-thirds super-majority in the Reichstag to make a massive constitutional change. His plan meant first cancelling the 1932 presidential elections and extending Hindenburg’s term. Then, the Reichstag would declare a monarchy with Hindenburg as “regent.” When Hindenburg died, one of Wilhelm’s sons would resume the throne and Germany would revert to a constitutional monarchy similar to England’s. Implausibly, it seems Brüning had the necessary two-thirds in the Reichstag, including the backing of the SPD and the trade unions (opposed were the Nationalists, the Nazis, and the Communists). Apparently, an overwhelming majority agreed that, combined with thwarting Hitler’s rise, a constitutional monarchy was the best solution to Weimar’s Constitutional Crisis. Brüning’s plan fell apart because Hindenburg could not reconcile his oaths. From his perspective, Brüning’s plan may have been simultaneously too far (in abandoning Weimar) and not far enough (in not restoring Wilhelm to the throne) for Hindenburg. Schmitt, "The Legal World Revolution," 83; Shirer, The Rise and Fall of the Third Reich, 153; William L. Patch, ning and the Dissolution of the (New York: Cambridge University Press, 1998), 302. 3 Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press, 2008), 81. “[An oath] signifies an acknowledgement of the fundamental political decisions contained in the Weimar Constitution.”

Page | 2 Introduction substance of the constitution and exhaustion with Weimar’s crises – not mental infirmity – that led him to appoint Hitler Chancellor.

The dilemma Hindenburg faced stemmed from the outcome of a series of German elections as the popularity of liberal democratic parties, like the SPD (Sozialdemokratische Partei Deutschlands – the Social Democratic Party), declined and they became unable to form working majority coalitions. This crisis peaked in Weimar’s election before the dilemma of January 1933. In November 1932, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei – the Nazi Party) obtained approximately 33% of the vote and the KPD (Kommunistische Partei Deutschlands – the Communist Party) 17%. The SPD, in contrast, obtained 20%. That is, the majority of seats in parliament were held by the NSDAP and the KPD, two parties representing diametrically opposed total movements, each with paramilitary wings. Their only overlapping interest lay in their shared desire to annihilate the core values of the Weimar Constitution: democracy, equal chance, liberal basic rights, and parliamentary representation itself.4 Taken at face value, the German people had decided against liberalism and against democracy. Although it was only a majority vote against Weimar, that majority could and did cooperate negatively against Weimar’s republican defenders by opposing the positive decisions they attempted to enact, including efforts by Reichstag Chancellors to resolve Weimar’s emergencies.5 Thus, at that time, liberal democratic parties like the SPD simply could not govern through the Reichstag because they lacked requisite democratic legitimacy. Something had to give for the balance of power to shift. But, at least until Weimar’s voters ceased electing illiberal and antidemocratic parties, it seemed that a liberal democratic coalition would not materialize in the Reichstag.

After two years of continually overcoming Weimar’s problems by seizing the dilemma’s first horn, Hindenburg no longer seemed to believe circumventing parliament offered a real solution and he was worried about the constitutionality of his repeated exercise of emergency powers. Moreover, it seemed likely parliament would simply be back where it started after the reelections in 60 days, with a new “negative” majority of the NSDAP and the KPD.6 Although dissolving parliament, calling for new elections, and using the interim to rule by executive ordinances temporarily overcame Weimar’s parliamentary impasses, this path offered no long term solutions and was at best controversial. And, no matter what was accomplished with a custodial government, in the short term Article 25 eventually meant returning to the status quo ante until something changed in German behavior.

Thus, in January 1933, Hindenburg tried the second horn of the dilemma.7 And because Hitler could most plausibly argue he could form a working majority coalition (with the conservative nationalist Deutschnationale Volkspartei or DNVP8), Hindenburg appointed Hitler Chancellor

4 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 68. 5 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 70. 6 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 70-71. 7 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 68. 8 The leaders of the DNVP, Hugenberg and von Papen, believed they could contain the NSDAP.

Page | 3 Introduction constitutionally – according to the “rules of the game.” But, Schmitt argued, in placing democratic procedure above the constitution’s deeper commitments, Hindenburg effectively “relativized” the constitution. And in this case the practical outcome of a relativized constitution was, paradoxically, the decision to totally revise the nature of the game itself – Hindenburg set the wheels in motion for a legal constitutional revolution.

For Schmitt, a decision to revolutionize the constitution could in no way be consistent with an oath to defend it. Moreover, he argued the Reichspräsident’s oath included identifying domestic threats to the constitution, and acting appropriately in response to them. Schmitt believed the opposition of the NSDAP, not to mention the KPD, to the basic principles of Weimar’s constitution made their very presence in parliament – not to mention their having obtained overwhelming power within it – profoundly unconstitutional. It was too obvious that they were enemies of Weimar. Under no circumstances should Hindenburg have granted either party “the political premium of the legal possession of power [die politische Prämien auf dem legalen Machtbesitz]” – which in the case of the Chancellor and his cabinet included control over both the police and the military, power to dissolve the Reichstag (through the exercise of Article 25) and the possibility (with presidential approval) to legally govern without liberal checks and balances before the Reichstag could reconvene, and finally a foothold into the presidency itself.9 To grant that much power to parties politically and existentially opposed to Weimar’s “Absolute Constitution,” which Schmitt believed was above all a political and existential phenomenon, was too obviously incoherent with an oath to defend it.10

Schmitt believed Hindenburg could not uphold his oath and serve as Weimar’s guardian because he ultimately had no idea what constitutionality meant. Schmitt, of course, had that insight. He believed he clearly saw Weimar’s enemies and could navigate it out of its legitimation crisis. Any constitution or defender of that constitution must be able to prevent movements deeply opposed to it from gaining power. In Weimar this meant, the Nazis and Communists, because their values were existentially antithetical to Weimar’s Absolute Constitution, to its political “status.” And, Schmitt believed, the dilemma between the Absolute and Relative Constitution, between substance and procedure or legitimacy and , was the dilemma of the twentieth century state. A relativized state and constitution was a threat to itself. It allowed its “enemies” historically unprecedented access to its heart by way of democratic amendment procedures and equal chance.

Schmitt would turn out to be right: the NSDAP and the KDP were indeed enemies of the Weimar constitution. And the NSDAP, having obtained the political premium of the legal possession of power, would quickly use Weimar’s Constitution as a weapon against liberal democracy for the sake of its own goals.

9 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 70. 10 Reinhard Mußgnug, Dorothee Mußgnug, and Angela Reinthal, eds., Briefwechsel: Ernst Forsthoff - Carl Schmitt (Berlin: Akademie Verlag, 2007), 194; cf. Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 130.

Page | 4 Introduction a. Left-Wing Extremism: The Communist Movement and the KPD

German was the first militant revolutionary movement to threaten Weimar. Across Germany in 1918, before the Weimar Republic was even declared, communists rebelled and founded soviet republics, modeling their actions on Lenin’s recent success. They were successful, at least briefly, in major cities, including , Berlin, München, Bremen, Frankfurt, Hannover, Braunschweig, Straßburg, and Würzburg. Stationed in München when the communists rebelled and declared the Bayerische Räterepublik, Schmitt directly witnessed the pitched street battles between communists and the police and, later, the Landwehr and Freikorps sent to crush them.11 Both communists and their conservative opponents sought out political enemies and summarily executed them in the aftermath of their respective victories. Schmitt himself experienced insurrectionary violence firsthand when communist stormed his office and shot the officer at the desk beside his.12 This experience undoubtedly contributed to his unrestrained contempt for communism. And the ideologically-driven civil war out of which Weimar emerged represented a microcosm of the instabilities and deep-seated tensions among movements and parties that would characterize the rest of its brief life – not to mention Schmitt’s perception of it.

Although the use of direct force by paramilitary groups like the Sparticist League and the Rotfrontkämpferbund was a strategy pursued throughout the span of the Weimar Republic, it was in the early years of Weimar that the communist party most actively pursued revolution through strikes and paramilitary revolutionary activities. As Weimar stabilized in the mid-20s, communists refocused their efforts on legal revolution. This shift was based on Leninist , which advocated – contrary to “orthodox” – active participation in “bourgeois” institutions to subvert them from within.13 Accordingly, the KPD sought to win seats in parliament democratically. The party’s platform explicitly included the legal abrogation of the Weimar constitution in order to replace it with a .

Beyond these goals, the KPD was also considered to be a threat to German sovereignty because it did not represent German voters per se but instead, through the centralizing policies of the Third International, it was merely an extension of Moscow’s political will.14 And guided by their Soviet leadership, German communists believed anything short of total revolution was unjust. They believed compromise, even socialistic concessions from the SPD-led parliament, would

11 Reinhard Mehring, Carl Schmitt: Aufstieg und Fall (München: C.H. Beck, 2009). 12 Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven: Yale University, 2003), 19. 13 E.g. “Whilst you lack the strength to do away with bourgeois parliaments and every other type of reactionary institution, you must work within them because it is there that you will still find workers who are duped by the priests and stultified by the conditions of rural life; otherwise you risk turning into nothing but windbags.” From Lenin, V.I. Left-Wing Communism: an Infantile Disorder. “Should We Participate in Bourgeois Parliaments?” 14 This was because a core tenet of the Third International was that “stringently centralized leadership” to guide all global . The rationalistic dictatorship of the was reproduced globally. J. L. Talmon, The Myth of the and the Vision of Revolution (Berkeley: Press, 1981), 437-438.

Page | 5 Introduction merely perpetuate their oppression. They believed that compromising with liberal democrats (“social fascists”) would prolong Germany’s prerevolutionary state. In a strange twist, the KPD thought liberal democratic parties like the SPD – and not the NSDAP – were their greatest enemy. Even as the NSDAP began to gain substantially in elections and showed signs of seizing control of Weimar, the KPD was unwilling to cooperate with the SPD against their shared enemy. In fact, the KPD would even cooperate “across the aisle” with the NSDAP to thwart the SPD and further delegitimate its “bourgeois” parliament.

Their utter unwillingness to compromise and the threat to German sovereignty they represented did much to characterize Schmitt’s impressions of the nature of political parties in 20th century Germany and the viability of Weimar’s parliament. Schmitt believed communism was symbolic of 20th century disenchantment and the widespread cultural slide into atheism and . This perspective was, no doubt, also informed and reinforced by Catholic theory, especially that of the counter-revolutionaries like Donoso Cortés who had made similar arguments. More alarming on a practical level for Schmitt, however, was the KPD’s Leninist strategy of legal revolution and its leadership’s subordination to another sovereign state. Here was an open enemy of Weimar taking advantage of Weimar’s democratic neutrality and openness for the sole purpose of obliterating it and replacing it with a new constitution. b. Right-Wing Extremism: The Nazi Movement and the NSDAP

Linked to Schmitt’s experience with extremism on the left was his experience with right-wing extremism. Like the communists, radical conservative movements attempted their own violent revolutions, especially in the early years of the Weimar Republic. The paramilitary Freikorps – large segments of which were incorporated into the Nazi’s militant SA and SS branches – were particularly violent. Their most well-known revolutionary act was the 1920 , which aimed at resurrecting the under an authoritarian government. It even succeeded, for a few days, in ousting Weimar’s legitimate government from Berlin. German also predated the Nazi movement in phenomena like 19th century völkisch sentiment and in non- communist, nationalistic lower class parties like the Deutsche Arbeiterpartei (DAP).

The Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) NSDAP emerged in the mid- 1920s as a revolutionary movement devoted, in addition to anti-Semitism and , to overthrowing Weimar. Seeing parallels between the Nazi movement and Mussolini’s Partito Nazionale Fascista and inspired by Mussolini’s successful 1922 “,” Hitler led his “” in 1923. He hoped this coup d’état would consolidate the legitimacy of and embolden its members. But Hitler’s Putsch failed fantastically. Yet, precisely because it failed, Hitler became convinced he needed to adjust his approach. Declaring publically the Nazi movement to no longer be a revolutionary organization, Hitler had decided to adopt any and every means available. He incorporated nonviolent, legal revolutionary methods into his repertoire, just as the communists had. Hitler too recognized the revolutionary potential within liberal democracy itself – legal amendments to the constitution could be used to overthrow the

Page | 6 Introduction liberal democratic substance of Weimar: the Weimar Constitution’s absolute neutrality – even toward its own values – would be its Achilles’ heel. To overthrow the constitution, he needed wide popular support and sought to capture the ’ dissatisfaction with Weimar’s political and economic institutions and direct them toward Nazism.15

The economic instability following the global crash of 1929 threatened the wealth and status of those middle classes, which gave the Nazis the base they needed to become a serious power.16 Around this time, the NSDAP began to successfully market itself as a populist party and the party most capable of overcoming this crisis.17 The NSDAP’s völkisch about reclaiming German greatness, foreign enemies, and messianic rejuvenation resonated with the middle classes, traditional conservatives, and veterans.18 And by 1932, the NSDAP held a plurality in parliament and was restrained only by their inability to form a stable coalition with the second and third largest parties, the SPD and the KPD. c. Hindenburg’s Oversight and Hitler’s Insight

Building up to Hitler’s Machtergreifung, Schmitt repeatedly warned against the possibility of a legal seizure of power, most explicitly in Der Hüter der Verfassung (1931) and Legality and Legitimacy (1932). But its prospects were theorized already in texts such as his Constitutional Theory (1928) and The Concept of the Political (1928/1932). This argument will be developed more fully in subsequent chapters but, briefly, Schmitt was most explicitly concerned about the possibilities offered by the “value-neutrality” of the First Principle Part of the Weimar Constitution.19 He believed this part of the constitution had been interpreted as elevating and democratic proceduralism above any other principles or values of the Weimar Constitution. This was evident to him most of all in how his contemporaries, such as Richard Thoma and Gerhard Anschütz, approached Article 76.20 Article 76, which deals with constitutional amendment, states that “the Constitution can be amended via legislation. However, a decision of the Reichstag regarding the amendment of the Constitution only takes effect when two-thirds of those present consent…”21 The problem with his contemporaries’ interpretations, Schmitt argues, was that it “deprived the Weimar Constitution of its political substance and its foundation, making it into a neutral amendment procedure that is indifferent toward every

15 George L. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich (New York: Howard Fertig, 1998), 312. 16 Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 238. 17 Sheri Berman, T P ma y of Pol t s: So al D mo a y a d t Mak g of Eu op ’s Tw t t C tu y (New York: Cambridge University Press, 2006), 140. 18 Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 264. 19 Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004), 42. 20 Schmitt, Legality and Legitimacy, 47-48. 21 "Appendix: The Weimar Constitution," in Carl Schmitt's Constitutional Theory, ed. Jeffrey Seitzer (Durham: Duke University Press, 2008), 421.

Page | 7 Introduction content.”22 In other words, “no parties, aspirations, organizations, or associations can be illegal because of their goals or the content of their goals.”23 They had, as he put it in 1928, relatived the constitution.24 Their interpretation amounted to reducing the basic principle of the constitution to merely the possibility for emendation based on democratic legitimation. The constitution itself offered no positive values or principles, these were merely accidental; the core of the constitution, insofar as it could be called that, was merely a procedure. But value- neutrality was, in itself, incapable of preventing its own suicide if it fell into the wrong hands. Value-neutrality and emendation could be amended just like the rest of the constitution. Anticipating Hindenburg’s trauma and the dilemma that it spawned, Schmitt wrote in 1928 “one cannot swear an oath to an amendment procedure”25 – Weimar’s political status had to come from something besides value-neutrality.

Schmitt warned the “National Socialists, Communists, the godless, whatever,” would be able to exploit precisely this value-neutral procedure to realize their substantively unconstitutional goals. He goes on to argue that, although liberal democrats like Thoma formally disagreed with his alternative interpretation – which would seek the substance of the Weimar Constitution outside of its amendment procedure and bar the participation of certain parties based on that substance – when the chips were down, many would not allow political decisions that would trample “principles of freedom and ,” namely what we understand today to be the core tenets of liberal democracy. And Schmitt thought that this was the correct interpretation – but the refusal of thinkers like Thoma to openly commit to it sowed confusion among Weimar’s defenders about how to respond to those “unconstitutional” parties.

The looming question for Schmitt, both at the time and afterwards, was whether a constitutional interpretation of 20th century liberal democracy existed that would allow for a defense of its absolute constitution. In other words, was there a way to limit the scope of the amendment power of Article 76 that was consistent with the Weimar Constitution? Schmitt insisted there was. He argued that such a basis could be found in the substantive values Weimar had committed to in its Second Principal Part and this basis could be used to thwart the unconstitutional but formally legal goals of parties like the NSDAP and the KPD. Schmitt believed the only course of action open to Hindenburg – the only course consistent with what the constitution meant substantively and thus with Hindenburg’s oath – was this interpretation. In addition to committing above all to the Second Principal Part of the constitution, his interpretation meant grasping the first horn of the constitutional dilemma described above to overcome immediate threats to the state: dissolving parliament according to Article 25 and declaring another according to Article 48.26 And it included barring “unconstitutional” parties from Reichstag

22 Carl Schmitt, Der Hüter der Verfassung, 4th ed. (Berlin: Dunker & Humblot GmbH, 1931), 113; quoted in Schmitt, Legality and Legitimacy, 49. 23 Schmitt, Legality and Legitimacy, 49. 24 Schmitt, Constitutional Theory, 67ff. 25 Schmitt, Constitutional Theory, 81. 26 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 72, 153.

Page | 8 Introduction participation altogether. Schmitt’s interpretation is clearly opposed to that of his contemporaries, especially the legal positivists. But he thought the alternative, appointing an insurrectionary like Hitler Chancellor, could not be serious.

As noted above, Schmitt argued Hindenburg’s lack of understanding of “constitutionality” led him away from the exercise of Article 25 and Article 48 and toward Hitler’s January 30th appointment as Chancellor. Once appointed, Hitler immediately used the very same political premiums of legal power Schmitt had advocated using against him. Invoking Article 25 on January 30th, Hitler dissolved the Reichstag and “without one word of protest from the guardians of the constitution, on February 2nd he issued an emergency decree (according to Article 48)” to consolidate his power as Chancellor.27 Schmitt declared this was Hitler’s first act of legal revolution. The second began the day after the February 27th Reichstag fire: Hitler’s Reichstagsbrandverordnung “temporarily” suspended the basic rights enumerated in Article 48 to deal with a possible communist insurrection. Using the power granted by that measure and the suspicion that the communist movement was somehow responsible for the fire, Hitler suppressed the KPD, focusing especially on its leadership – effectively excising the Reichstag’s third largest party. In doing so, Hitler realized a stable majority coalition. Exploiting every opportunity, legal and otherwise (including, violence, intimidation, and propagandistic appeals to the fire and communist menace), the NSDAP won additional seats in the subsequent March 5th elections. Now, with a two-thirds majority in the Reichstag, Hitler committed his second act of legal revolution: passing the Ermächtigungsgesetz, which effectively turned Weimar into a one party totalitarian state.28 In other words, in this second act of legal revolution Hitler used Article 76 to abrogate the Weimar Constitution – including the NSDAP’s need for political cooperation and Article 76 itself. Hitler clearly understood the political premiums of the possession of legal power. As Schmitt had warned.

When Hitler was sworn in on January 30th, Schmitt’s friend Popitz advised him that he too – as von Schleicher already had – must “disappear” from [Jetzt müssen Sie von der Bildfläche verschwinden].29 Notoriously, Schmitt did not disappear from politics at all. Regardless of what his underlying motive was,30 the fact remains that Schmitt openly embraced his former “enemy”

27 Schmitt, "The Legal World Revolution," 83. 28 Schmitt, "The Legal World Revolution," 83-84. It should be noted the transfer of powers from the Reichstag (to the President and his Cabinet) had, like the , precedent in Ebert’s presidency. There were 10 Ermächtigungsgesetze prior to the one that empowered Hitler. cf. Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham: Duke University Press, 2004), 150. 29 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 87ff. 30 Other authors have treated Schmitt’s ideological and philosophical relationship with Nazism in depth. William E. Scheuerman, "Carl Schmitt and the Nazis (Book Review)," German Politics and Society 23(1991); William E. Scheuerman, "The Fascism of Carl Schmitt: A Reply to George Schwab," German Politics and Society 29(1993); William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999); George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt (Westport: Greenwood Press, 1989); Joseph W. Bendersky, "Der Fall Carl Schmitt: Sein Aufstieg zum “K o ju st des Dritten R s” by Andreas Koenen & Carl Schmitt and : The Hidden Dialogue: Including Strauss's Notes on

Page | 9 Introduction and on May 1st 1933 became the 2,098,860th member of the Nazi party.31 This decision led to the most despicable acts of his life, which included publically justifying the Night of Long Knives (which included the of Schmitt’s former employer, von Schleicher) and the explicit incorporation of anti-Semitism into his writings, such as his “third most important book” The Leviathan in the State Theory of Hobbes. His failure to disappear from politics and his subsequent acts tainted his reception for generations and still affects how he is read.

Schmitt defended himself in 1971 by claiming he was no hermit and wanted to remain practically involved. Moreover, with the Reichstag fire and the Ermächtigungsgesetz, Schmitt claims he had encountered an entirely new situation in his career as a – that is, as a positivist.32 Schmitt wonders what Kelsen, “who was indeed a committed positivist, would have done” while going on to argue that, however, “although [I] was not a positivist in the sense Kelsen was. But, on the other hand, there is nothing other than positive law [Nun bin ich kein Positivist im Sinne von Kelsen. Aber es gibt andererseits auch kein anderes als positives Recht].”33 This claim hints at something important about Schmitt’s understanding of law. He seems to be invoking a right-Hegelian belief that positive law [Gesetz] is law [Recht], but only when it possesses certain requisite validity and is recognized as such (as Recht).34 This claim suggests that he felt obliged – as a jurist – to recognize the legitimacy of the new constitutional situation.35 Yet at the same time, his critique of Kelsen suggests that Schmitt unconsciously recognized he should have drawn a far different conclusion than a dogmatic positivist – Hitler’s “legal” assumption of power was substantively illegitimate and Schmitt should not have allied himself with such a man and regime, no matter the circumstances under which he seized power. But setting aside his absurd and incoherent defense, these remarks are valuable for shedding light on Schmitt’s constitutional theory by following the logic of them: while Recht must by definition be rational, it is nothing if it is not also real.

S m tt's “Co pt of t Pol t al” a d T L tt s f om St auss to S m tt by Heinrich Meier," The Journal of Modern History 69, no. 4 (1997); Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton: Princeton University Press, 1983); Mehring, Carl Schmit. 31 Bendersky, Carl Schmitt: Theorist for the Reich, 204. 32 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 91. “Der Februar, Reichstagsbrand, und [es] kam also das Ermächtigungsgesetz, nun, vom 24. März. Damit begann natürlich für mich als Juristen 'ne völlig neue Situation als Positivist.” 33 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 92. 34 Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 170. 35 In fact, Schmitt argued that the Enabling Act constituted a new Constitutional Situation and the death of the Weimar Republic. Carl Schmitt, Staat, Bewegung, : Die Dreigliederung der Politischen Einheit von Staatsrat (Hamburg: Hanseatische Verlagsanstalt, 1935), 43.

Page | 10 Introduction

2. Si fractus illabatur orbis: Assessing Schmitt’s State Theory

Diagnosing the latest iteration of the Weimar state and constitutional crisis in 1930, Carl Schmitt wrote “The constitutional situation of today is characterized first by the fact that numerous institutions and standards of the 19th century have remained unchanged, while the current situation has changed completely.”36 He would continue to voice similar thoughts throughout his career. Clearly, Schmitt believed that, however well the liberal democratic state worked in the 19th century, 20th century changes undermined the ability of that state form to function.37 Above all, Schmitt believed these changes stemmed from the advent of modern mass democracy, writing in 1926 that “the crisis of the modern state consists in the fact that no state, not even a democratic state, can realize a mass democracy, a democracy of mankind.”38 He thought mass democracy was a qualitatively different form of democracy but it tended to be treated as if it were merely a classical form of democracy with expanded suffrage. Weimar’s architects and defenders had failed to see this and how destabilizing mass democracy would be when forced into institutions designed for democracy in its classical form. This oversight was the root of Weimar’s crisis. To overcome that crisis meant looking back at the original idea and purpose of the state, beginning with Thomas Hobbes. But it also meant adapting classical state theory to meet the novel challenges posed by the 20th century. Only by taking into account those changes could Weimar, or any 20th century state for that matter, be stabilized and its authority restored.

Schmitt’s state theory has been the subject of countless misinterpretations, by both his “friends” and his “enemies.” Throughout, I engage with Schmitt, critically reinterpreting core concepts ranging from “political theology” to his stance toward liberalism and democracy to “the political” and the Friend-Enemy distinction. Beyond this, and pace those who argue he was “deliberatively unsystematic,”39 I show a coherent core extends throughout Schmitt’s writings. Schmitt himself acknowledges his thought stood between system and aphorism – meaning between Hegel and

36 „Die Verfassungssituation der Gegenwart ist zunächst dadurch gekennzeichnet, daß zahlreiche Einrichtungen und Normierungen des 19. Jahrhundert unverändert beibehalten sind, die heutige Situation aber sich gegenüber der früheren völlig geändert hat.“ Carl Schmitt, "Die Wendung zum Totalen Staat (1931)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923-1939 (Berlin: Dunker & Humblot, 1988), 146. 37 Cf. Schwab, The Challenge of the Exception, 27; Carlo Galli, La Genealogia della Politica: Carl Schmitt e la Crisi del Pensiero Politico Moderno (Bologna: Il Mulino, 1996), 29. 38 Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge: The MIT Press, 1988), 16. Translation altered, my emphasis. Kennedy translates it “The crisis of the modern state arises from the fact that no state can realize a mass democracy, a democracy of mankind, not even a democratic state.” The original reads “Die Krisis des modernen Staates beruht darauf, daß eine Massen- und Menschheitdemokratie keine Staatsform, auch keinen demokratischen Staat zu realisieren vermag.” 39 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997), 41; Jerry Z. Muller, "Introduction to Carl Schmitt, "When Parliament Cannot Be Sovereign"," in : An Anthology of Social and Political Thought from to the Present, ed. Jerry Z. Muller (Princeton: Princeton University Press, 1997), 266.

Page | 11 Introduction

Nietzsche.40 And his work bears unmistakable signs of internal coherence and integration into a conceptual system despite the aphoristic appearance his many short publications may give.41

Schmitt’s style coupled with postwar “” dismissals are some causes of these misinterpretations. His aphoristic style may also be to blame. And his past, which could be briefly described as first a critic of Weimar Germany, then as a Nazi party member and apologist, and finally as a disgraced, unapologetic former professor. Schmitt's extremely complicated and extremely complicated relationship with both Weimar liberal democracy and Nazism is too often reduced to this over simplified biography, which is in turn used as an ad hominem dismissal of his political and constitutional theory. Finally, the general unavailability of English translations has muddied the waters in interpreting him in English. Fortunately, this situation is changing now. Particularly in the last decade, there has been an explosion in English translations of his work. And because more time has passed, we can approach Schmitt with more distance and disinterest than before. Finally, important biographical work is now appearing in the form of journals, letters, and comprehensive biographies, such as Reinhard Mehring’s recent groundbreaking book. These developments are revolutionizing the picture we have of Schmitt. I take advantage of this revolution to read Schmitt fresh and to attempt to understand him as he understood himself – something Schmitt himself seems to have hoped later readers would do.42

This is not to say Schmitt’s work is beyond reproach. But any serious critique requires a stationary and accurately reproduced target. Thus, one aim of this dissertation is to set the record straight by providing this systematic reinterpretation of his state theory. Rather than reading him as a sort of proto-fascist theoretical aberration, emerging ex nihilo out of the chaos of Weimar and Nazi Germany, I look at the sources of Schmitt’s work in seminal texts of political and legal thought – spanning from the Ancients to Hobbes and Hegel to Weber. In doing so, I show that Schmitt is no irrationalist, sophist, or Catholic mystic. He is a rationalistic conservative juridical thinker, deeply grounded in the history of western political thought – especially what he himself calls classical occidental .

There is reason to discuss Schmitt’s state theory besides setting the record straight. Schmitt’s state theory is valuable for its originality. There is a reason why Schmitt – despite his personal failures and controversial nature – remains well read and perhaps even seminal today. Schmitt articulated the core constitutional and political problems facing twentieth, and now twenty-first, century liberal democratic states. And he did it far more seriously than critics sometimes like to admit. He arguably offered the best problematization of the domestic problems facing democratic states today. This boils down to an intrinsic tension between democracy and the

40 Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 3rd ed. (Berlin: Duncker & Humblot, 1963), 17. 41 Reinhard Mehring, "Esoterische „Hinweise"? Marginalien zum Feindbegriff und „Anthropologischen Glaubensbekenntnis"," in Der Begriff des Politischen: ein kooperativer Kommentar, ed. Reinhard Mehring (Berlin: Akademie-Verlag, 2003), 193-194. 42 Carl Schmitt, "Die vollendete ," Der Staat (1963): 51-52.

Page | 12 Introduction constitution, whose core enshrines basic individual rights. Schmitt’s underlying critique of the modern state is that it has lost sight of how to distinguish tyrannical from legitimate regimes. This, he believes, is an effect of a positivistic and the triumph of democratic proceduralism over all other principles of state. Thus, today, a transitory democratic majority or super-majority can legally amend an otherwise legitimate constitution out of existence and replace it with whatever that majority wants at that moment. The only rationale it needs is the fact that it has voted to do so. Schmitt’s original theory of this dynamic may offer new insights into contemporary discussions about the relationship of constitutionalism, rights, and democracy.

Schmitt was in the unique position of being a policy maker and a constitutional theorist during Weimar’s collapse. As an opponent of both Weimar’s extremist parties, Schmitt theorized constitutional ways to halt the collapse of Weimar into either a fascist or bolshevist state. But Schmitt also played a practical role political and constitutional theorists rarely have. In the early 1930s, Schmitt was an advisor to von Schleicher who, besides serving as the Chancellor briefly in 1932, orchestrated much of Weimar’s politics from the crisis of 1929 to his downfall in 1933 through his influence on Hindenburg. By serving von Schleicher, Schmitt had the opportunity to influence major events at the end of Weimar. In addition, Schmitt represented Weimar in the infamous trial Preußen contra Reich. His constitutional and political theory was deeply involved in liberal democracy’s most desperate moment and provides insights into the practical limitations of applying ideal liberal democratic theory to modern mass democracy.

We have the fortune of living in a comparatively stable period of modern history. But even now the threats to liberal democratic states Schmitt articulated – such as , extremism, and democratic disenchantment with basic liberal freedoms – are resurging, especially in . Even if states today do not show Weimar’s symptoms, Schmitt believed the problems he articulated were intrinsic to constitutional democracy. Can a constitution legally commit suicide? How should a liberal democratic state respond when social movements threaten war with one another and against the state itself? How should liberal democrats respond when extremist parties are strong enough to cooperate in parliament and obstruct essential legislation? Can an illiberal antidemocratic party legitimately obtain power through elections and then kick the ladder down by legally amending democracy and liberalism out of the constitution entirely? Can a majority ever be wrong? Are positivism and the only sources of legitimacy in ? Which ought to have priority when the two reach an impasse and a democratic majority or super-majority seeks to amend rights out of existence: liberal basic rights or democratic procedures? As long as constitutional amendments can be made that cast the core tenets of what we understand to be liberalism aside, these questions will remain important. And Schmitt’s struggles to answer them will continue to be informative. Few authors have been able to match his theoretical prowess and ability to articulate these problems. For this reason, Schmitt’s theory too remains valuable today.

But beyond Schmitt’s insights into the dilemmas of liberal democratic states, I argue Schmitt’s state theory anticipated an institution found in varying degrees in many liberal democratic states

Page | 13 Introduction today: “militant democracy.” As I show, because Schmitt anticipates militant democracy and links his interpretation into his broader state theory, he offers us a normative theory of militant democracy – something Jan-Werner Müller recently argued was conspicuously absent.43 Moreover, I conclude that because Schmitt’s state theory stands outside the liberal tradition of the state, militant democracy too is best conceived as standing outside that tradition. Because of the light it sheds on both tensions within liberal democracy and militant democratic states, my extrapolation and analysis of Schmitt’s state theory is both an important historical work as well as a valuable tool for understanding pressing questions of liberalism, democracy, constitutionalism, and states today.

This dissertation extrapolates and analyzes Schmitt’s state theory in six chapters. The first chapter sets the foundation for Schmitt’s state theory by describing the intellectual context out of which it developed. It looks at four predominant political and legal theories of the interwar period, neo-Kantianism, neo-, Pluralism, and Revolutionary Conservativism, and discusses Schmitt’s relationship to them.

The second chapter turns to his well-known concept of political theology. It argues that political theology has not yet been properly understood. Political theology, for Schmitt, is a critique of positivism. Above all, he argued theology (or metaphysics) and politics (and jurisprudence) were deeply entwined, a claim directed against positivistic beliefs, such as Kelsen’s, that one value sphere could be understood “purely.” For the state, this meant among other things that crises occur when institutions and metaphysical concepts of legitimacy no longer cohere with one another. This chapter traces Schmitt’s account of legitimacy, crisis, and historical change and the role Weberian disenchantment plays in the shifting terms of political legitimacy.

Building off the arguments of the second chapter, the third chapter looks at how Schmitt argues Weimar was based on conceptions of legitimacy that were no longer capable of achieving either political legitimacy or stability. That is, Weimar’s institutions presupposed a situation that no longer existed. Schmitt argues “mass” democracy overheats the 19th century “bourgeois Rechtsstaat,” the state form on which Weimar was modeled, and drives state and society into a Hobbesian state of nature. This chapter argues that democracy – not liberalism – was the focus of Schmitt’s criticism and lays the groundwork for his solution to the crisis of the 20th century state.

The fourth chapter analyzes Schmitt’s concept of the political from a new perspective. Without ignoring enmity, it looks at how Schmitt also defines the political in terms of friendship and “status par excellence,” the status that relativizes other statuses. This reinterpretation ties the political more strongly into political theology. This chapter also examines how reinterpreting the political affects another of his core concepts of the state: representation.

43 Jan-Werner Müller, "A “Practical Dilemma Which Philosophy Alone Cannot Resolve”? Rethinking Militant Democracy: An Introduction," Constellations 19, no. 4 (2012).

Page | 14 Introduction

Using the reinterpreted “political” from the previous chapter, the fifth chapter outlines Schmitt’s state and constitutional theory by closely examining how he theorizes the “qualitative” total state as a means of containing the indirect powers that he believed were driving the state into a state of nature. It also looks at the role his constitutional theory, especially his constitutional typology of Absolute and Relative Constitution play, plugging them both into his concept of the political and his concept of the state. Finally, it concludes by looking at the role dictatorship plays in his state theory and how he aimed to define Weimar’s Reichspräsident as a commissarial authority instituted as the Absolute Constitution’s guardian of last resort.

The sixth and final chapter looks at how Schmitt state and constitutional theory anticipates militant democracy. Militant democracy is when a democratic regime has mechanisms preventing its own democratic subversion. These pre-emptive mechanisms may appear to be illiberal and/or undemocratic. Examples include “entrenchment” of basic constitutional against emendation and the outright banning of certain unconstitutional extremist parties. This chapter shows how, as Schmitt plugged his theories of the Absolute Constitution and “the political” into the Weimar state, he developed an original defense for it. Schmitt’s account offers a way of reformulating debates about the legitimacy of militant democracy and advances it beyond the current discussion of constrained versus unconstrained democracy. This chapter concludes by discussing how militant democracy, especially when understood through the lens of Schmitt's state theory, stands in a different tradition than traditional liberal democratic, contractarian, state theory.

In the end, Schmitt seems to want to force liberals and democrats out of their comfort zone by arguing that all political theory implies a certain concept of order. He believes that the 20th century triumph of democracy and liberalism led many, thinkers and lay people alike, to forget that both are constraints on society – they just happen to be legitimate constraints. As a corollary, he believes there are still means to distinguish tyranny from legitimate government. No matter how liberal or democratic one is, he argues there are limits to what is tolerable and permissible within a state. And this limit is where state authority kicks in. Although there are exceptions, Schmitt argues the vast majority of liberal democrats would not, when pressed, agree that, should a Nazi super-majority legally seize parliament and meet whatever threshold requirements are necessary to rewrite the constitution, their decision would be legitimate. He aims to show those who admit legitimacy is more than mere will and positive law that some degree of state authority is necessary and right eventually draws limits to individual freedom. Were everything merely (aggregated) will or the “normative power of the factual,” there would only be the state of nature. That is, Schmitt believes even a liberal democratic state presupposed some underlying conception of legitimacy, no matter how minimal, which provided political limits to which actions and laws were tolerable. The goal of his state theory is to check the unbridled celebration of universal suffrage and provide stability to the state in times of transition and crisis.

Page | 15 Leviathan Run Aground: Chapter 1

Complexio Oppositorum: Carl Schmitt’s Intellectual Context

Like many others his age, Carl Schmitt was defined culturally and politically by Europe’s fin-de- siècle atmosphere, the war, and the ideas they gave birth to.1 Born in 1888, Schmitt was in his late 20s when the First World War began. It was a period of disarming change. The ancien régime was in its death throes. And then it died. Europe had been brutalized by “the war to end all wars.” The Soviet Union was established in 1917. The Second Reich collapsed. Its successor, Weimar, was economically and politically bankrupted by the . European society was strained by , liberalism, innovations in science and , and urbanization. Radical economic changes, caused by the advent of advanced , international high-finance, and global credit systems, exacerbated the already tense relations among different segments of society. Yet underneath all these “20th century” changes, the 19th century continued to resonate. For German Catholics, memories of Bismarck’s Kulturkampf lingered.2 And the failure of the Revolutions of 1848 informed early 20th century politics and culture much as the Second World War continues to inform our own today. A culture of despair and pessimism had arisen around the turn of the century and lingered into the 1930s.

Although he was an original thinker in his own right, everything Schmitt wrote was in dialogue with the events, thinkers, and ideas around him. Yet Schmitt’s intellectual context and development are often overlooked by political and legal theorists engaging with him. To make matters worse, many of the disputes and problems that early 20th century German political and

1 Cf. Roger Woods, The in the Weimar Republic (New York: St. Martin’s Press, 1996), 1. For German men born in the last decade of the 19th Century, the First World War was formative and its experience characterized their mature thought. The war’s effect is clear on Schmitt: he dedicates two of his most important works, both published in 1928, to friends who died in the war. And his life immediately following it is indicative of its impact. Reinhard Mehring, Carl Schmitt: Aufstieg und Fall (München: C.H. Beck, 2009), 76ff. 2 Schmitt said, growing up, he heard more about the Kulturkampf than the war of 1870. Frank Hertweck, Dimitrios Kisoudis, and Gerd Giesler, eds., "Solange Das Imperium Da Ist": Carl Schmitt im Gespräch mit Klaus Figge und Dieter Groh 1971 (Berlin: Duncker & Humblot, 2010), 37.

Page | 16 Leviathan Run Aground: Chapter 1 legal thought dealt with are no longer well known to 21st century scholars.3 Schmitt’s state theory is best flushed out by situating it among the theories influencing him as he matured. Schmitt wanted to solve the problems he saw stemming from these theoretical movements’ attempts to understand and address the crisis constitution and state faced in light of 20th century changes. At the same time, Schmitt was deeply influenced by how these movements framed issues. To provide the best foundation with which to understand Schmitt’s state theory, this chapter situates his thought and discusses the intellectual movements most significant to its formation.

The most significant legal theory at the turn of the 20th century was neo-Kantianism. Neo- Kantian grew on a foundation of neo-Kantian epistemology. Throughout his mature life, Schmitt’s attacked neo-Kantian jurisprudence, especially the work of Hans Kelsen. He believed the movement theoretically mirrored Weimar’s weaknesses. Yet Schmitt himself was trained as a neo-Kantian. And while his very early work is clearly locatable within that tradition, on careful examination one finds even his later writings bear its imprint. In particular, his intellectual debt to and lifelong engagement with , which continued to appear even in his very late writings, such as Die Tyrannei der Werte (1967), shows just how important this movement was to Schmitt’s intellectual identity. Yet Schmitt’s neo-Kantian debts have been largely ignored – with notable exceptions.4 Situating Schmitt’s thought within neo-Kantianism, particular ideas derivative of the Baden School, provides one of the most important bases for understanding Schmitt himself.

Hegel, through neo-Hegelianism, experienced a renaissance in German political and legal thought around the turn of the century. Yet, with the exception of a few thinkers like George Schwab, Carlo Galli, and, very recently, Nehal Bhuta, Schmitt’s relationship to Hegel is rarely discussed.5 Yet Schmitt clearly drew on both Hegel and neo-Hegelianism in formulating his state and constitutional theory. Similarities in his style with Hegelian thought and its derivatives were sufficient for the SS to ideologically denounce him as a “Hegelian.” Schwab argues Schmitt understands the state as “a realm of objective reason,” allowing him to be classified as a neo- Hegelian. Bhuta similarly argues he stands within the Hegelian tradition of 19th century German

3 It is not uncommon to encounter political and legal theorists who are not even aware that neo-Kantian positivism was the predominant position of the day, and against which Schmitt’s works were oriented. Neo-Kantianism, as a comprehensive philosophical movement, remains largely inaccessible in English. The majority of the texts that actually were translated were done so a century ago and many seminal texts by core thinkers can only be accessed indirectly through commentary or summaries. 4 G. L. Ulmen, "The of the State: Carl Schmitt and Max Weber," State, Culture, and Society 1, no. 2 (1985): 12ff; William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 19ff; George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt (Westport: Greenwood Press, 1989), 13-14; Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton: Princeton University Press, 1983), 10. 5 Schwab, The Challenge of the Exception, 26-28; Carlo Galli, La Genealogia della Politica: Carl Schmitt e la Crisi del Pensiero Politico Moderno (Bologna: Il Mulino, 1996), 13-33; Nehal Bhuta, "The Mystery of the State: State- Concept, State-Theory and State-Making in Schmitt and Oakeshott," Department of Law (EUI, 2014), 11ff.

Page | 17 Leviathan Run Aground: Chapter 1 state theory. Schmitt’s writings before and after the rise of Nazism do suggest that, although Schmitt was clearly not a dogmatic Hegelian, there may have been something to the SS’ claims.6

Schmitt consistently attacks the pluralist movement as an example of political theory’s debilitated condition during the Weimar Republic. For this reason, it is clearly one of his most important theoretical antitheses. Yet, aside from Schwab’s analysis, that Schmitt wrote many of his most important works in direct dialogue with and critical of pluralism has gone undiscussed.7 Schmitt devoted his energy to attacking Harold Laski, who he saw as the movement’s leader.

Finally, revolutionary conservativism was an important intellectual movement from the interwar period. Both Bendersky8 and Galli9 summarily argue Schmitt was no revolutionary conservative. Yet Schmitt had close friendships with some of its core thinkers, including Arthur Moeller van den Bruck and Ernst Jünger. And, as will become apparent, there are relevant overlaps between Schmitt’s thought and this movement. Thus, regardless of whether Schmitt is best categorized ideologically as a “Revolutionary Conservative,” the movement is a point of orientation for developing Schmitt’s state theory.

1. Neo-Kantianism: Kantian Method without its Metaphysics

Neo-Kantianism became Europe’s dominant philosophical movement in the mid to late 19th century. It emerged, in part, over questions about the epistemological validity of traditional philosophy, especially metaphysics, as modern science framed by the philosophical views of positivism took hold. a. Neo-Kantian Philosophy

By the 19th century, scientific method was rapidly eclipsing other theories of knowledge. Thinkers’ struggles to come to terms with modern science, positivism, and “” would characterize many important works of the 19th century, affecting disciplines like , such as by Marx’ , or theology, by Comte’s “Religion of Humanity.” It was believed that, by extending the methods of natural science into every discipline, humanity really could overcome its problems. As a consequence of this expectation, positivism and related movements began a sustained attack on traditional philosophy, arguing in particular that metaphysical speculation, or any “unscientific” speculation for that matter, was

6 Carl Schmitt, "Die Andere Hegel-Linie: Hans Freyer zum 70. Geburtstag," Christ und Welt, July 25, 1957; Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 14. 7 Schwab, The Challenge of the Exception, 55-59. 8 Bendersky, Carl Schmitt: Theorist for the Reich, 137ff. 9 Galli, La Genealogia della Politica, 152.

Page | 18 Leviathan Run Aground: Chapter 1 unnecessary for understanding truth and the world.10 These movements argued legitimate knowledge consists only in what is empirically observable and that anything beyond “phenomena,” especially metaphysics, could not be legitimately known.11

Neo-Kantianism arose out of this context. It attempted to restore the legitimacy of philosophy by reigning in the excesses of , especially Hegel’s system. To do so, neo- Kantianism avoided metaphysics altogether and focused instead on epistemology – the bases of knowledge and its limits – and logic as a way to ground philosophical legitimacy and show its relevance to a world increasingly reliant on knowledge established through scientific method.12 Neo-Kantianism did not dispute scientific method but instead focused on the limits of scientific knowledge (as well as philosophy) and what positive contributions philosophy could make, a method modeled on Kant’s critical philosophy.13 Neo-Kantianism became the dominant philosophical movement in Germany by the early 20th century, playing an important role in debates across Europe. Its epistemological orientation shaped many disciplines, including constitutional and legal theory, in which it also became a dominant school in its own right.

Aiming to philosophize in the spirit rather than the letter of Kant, neo-Kantians radicalized Kant’s transcendental idealism by coupling its idealistic core with the Platonic theory of forms and insights from post-Kantian philosophy while striving to avoid lapsing into subjectivism.14 In agreement with Kant, neo-Kantians argued one can infer things-in-themselves exist from

10 This 19th century movement has recently been rediscovered in new bottles under the label of “scientific naturalism.” cf. Mario De Caro and David MacArthur, eds., Naturalism and Normativity (New York: Columbia University Press, 2010). 11 Cf. John H. Hallowell, The Decline of Liberalism as an Ideology with Particular Reference to German Politico-Legal Thought (London: Kegan Paul, Trench, Trubner & Co., Ltd., 1946), 68-69. Advocates of positivism never vanished from European discussions of methodology of science and social science. For example, there was the Methodenstreiten of the late 19th century (between Menger and Schmoller and between Meinecke and Lamprecht, as well as many others) that debated the validity of natural scientific method in the social sciences. Despite the criticisms leveled against positivism through the late 19th and early 20th centuries, its appeal never disappeared completely. In the 1920s, it would experience a resurgence as philosophers and scientists, including former neo-Kantians like Carnap and Hempel, reacted to the changes in Europe following the Great War by articulating a scientific conception of the world. Logical Empiricists or Logical Positivists, particularly the schools of the Vienna Circle and the Berlin Circle, argued that expanding scientific knowledge and scientific method as the legitimate basis for knowledge. As the name of the school suggests, logical empiricism rejected most if not all of the non-empirical aspects of philosophy, including metaphysics, for theoretical as well as political reasons, as they believed the expansion of science would prevent the turmoil that had disrupted European society from occurring again. Logical empiricism meant reviving the positivistic traditions of the nineteenth century – only the scientific aspects of philosophy were worth retaining. Cf. Richard Creath, "Logical Empiricism," in The Stanford Encyclopedia of Philosophy ed. Edward N. Zalta (2011). Thus, the work of neo-Kantianism and other movements in critiquing positivism was grounded in an environment of rich debate over the validity of principles like metaphysics, belief, and value against the assertion that validity could only be accorded to what could be established empirically. 12 Peter Gordon, Continental Divide: Heidegger, Cassirer, Davos (Cambridge: Harvard University Press, 2010), 53. 13 Gordon, Continental Divide, 54. 14 Manfred Kühn, "Interpreting Kant Correctly: On the Kant of the Neo-Kantians," in Neo-Kantianism in Contemporary Philosophy, ed. Rudolf A. Makkreel and Sebastian Luft (Bloomington: Indiana University Press, 2010), 116.

Page | 19 Leviathan Run Aground: Chapter 1 phenomena15 but one cannot have direct knowledge of them because experience is strictly limited to how one’s senses have been affected by a thing’s phenomenal nature.16 Thus, readers of Kant concluded an epistemological “hiatus irrationalis”17 exists between phenomena and things-in-themselves. This barrier cannot be crossed by human reasoning; what lies beyond empirical sensation cannot definitively be known. This hiatus affects one’s ability to understand phenomena because one cannot link phenomena to underlying concepts, values, essences, or abstract laws, which lie on the other side of this hiatus.

Drawing upon the concept of the hiatus irrationalis, neo-Kantian schools radicalized the division between phenomena and things-in-themselves. Even more so than Kant, they admit the difficulties modern scientific method poses for non-empirical things, insisting noumena cannot be apprehended by scientific methodology at all.18 The hiatus results in a strong fact/value divide. Neo-Kantians concluded from this the irrationality of the world: the divide between facts and values is so strict no definite relation between phenomena and our evaluation of them can be said to exist. This irrationality has two aspects. The first is that any phenomenon or event presents an infinity of successively and co-existently emerging and disappearing empirical facets and is infinitely describable as such.19 Thus any factual description or analysis of any phenomenon necessarily implies idealization and rationalization. No representation of the world is true or real because it presupposes an evaluation, which reflects the bias of the agent who idealizes and rationalizes. Moreover, there is no inherent rationality in a phenomenon, only what the observer deduces from it – the world is descriptively irrational. The second aspect of irrationality is that the world is ethically irrational.20 Logically, there is no way to link values to phenomena or events. Of course, phenomena or events can be evaluated but neo-Kantians argue that such judgments cannot be epistemologically legitimated because they cross this hiatus.21 The world is

15 Although this inference has also been criticized, most famously by Nietzsche. But neo-Kantians like Vaihinger, standing in Nietzsche’s wake, have also argued that Kant himself believed that the thing-in-itself was not a valid epistemological inference but merely a conscious heuristic fiction. 16 E.g. , Critique of Pure Reason, trans. Norman Kemp Smith (New York: Bedford St. Martins, 1965), 92 (B74). 17 This term originates in the later Fichte to describe the problematic relationship Kant articulated between phenomena and the Dinge-an-sich or noumena. The term was popularized by the neo-Kantian Emil Lask in his dissertation Fichtes Idealismus und die Geschichte to describe the problematic relationship between phenomenal entities (that is, beings in history) and their relationship with concepts and general laws. That is, the relationship between empirical and transcendental, historical individual and abstract universal, intuition and concept, and facticity and validity cannot be bridged logically and this generates the fundamental problem of philosophy, how human beings can orient themselves correctly in the world. Cf. Frederick Beiser, "Emil Lask and Kantianism," The Philosophical Forum 39, no. 2 (2008): 39; Guy Oakes, Weber and Rickert: Concept Formation in the Cultural Sciences (Cambridge: The MIT Press, 1988), 51. 18 Kühn, "Interpreting Kant Correctly," 124. 19 Max Weber, "Objectivity in Social Science and Social Policy," in The Methodology of the Social Sciences, ed. Edward A. Shils and Henry A. Finch (Jaipur: ABD Publishers, 2004), 72-73, 78, 111, 130. 20 Max Weber, "Politics as a Vocation," in From Max Weber, ed. H. H. Gerth & C. Wright Mills (New York: Oxford University Press, 1959), 361 (Cambridge History Text); Oakes, Weber and Rickert, 51-53. 21 Cf. Hans Vaihinger, T P losop y of ‘as If’, trans. C. K. Ogden (London: Routledge & Kegan Paul Ltd., 1965), 84; Weber, "Objectivity in Social Science and Social Policy," 55.

Page | 20 Leviathan Run Aground: Chapter 1 nothing more than a chaos of sensations and no ‘things’ may be discerned in these perceptions without the intervention of the understanding to delimit phenomena and causes from one another.22

The hiatus irrationalis was anticipated by Kant, particularly in his “Antinomies of Pure Reason.”23 There, Kant describes how answers to the questions that bear most on human life are beyond the limits of reason. For example, one cannot know whether there is a god; one cannot know whether we are simply causally determined or free agents, and thus morally accountable at all. The existence of the hiatus undermines the possibility for human reason to understand the most important things for human life because we stand on the wrong side of this hiatus. Intelligible perception can only be of phenomena. With the limited evidence available, human observers can endless speculate about what stands on the other side but never conclusively prove anything. Meanwhile, modern science narrowed further and further the rational grounds for belief in metaphysical questions such as human agency, god, or the immortality of the soul. Yet, without these irrational beliefs, meaningful human action is difficult if not impossible. Kant overcame this problem by arguing reason’s necessary presupposition of these beliefs, even if their truth cannot be empirically evaluated.24 However, beginning with Hegel, many thinkers criticized Kant’s ethics, despite whatever formal legitimacy he may have constructed, for being wholly unable to provide determinate ethical norms.25 And then later Nietzsche lambasted Kant precisely for the metaphysical presuppositions of practical reason – arguing, had Kant truly followed his critical philosophy, he would have abandoned his Second Critique altogether.26

Neo-Kantians tried to salvage Kant’s philosophy by adapting his system to these criticisms. Making concessions to Kant’s critics, they accepted that, despite the epistemological and logical problems metaphysical presuppositions present, agents’ metaphysical presuppositions were a necessary aspect of human experience. They believed that, if agents were to have a meaningful experience of the world, they would need to act as if their metaphysical presuppositions were valid and bridge the hiatus irrationalis between the noumenal world and the phenomenal world – even though this was logically impossible. According to this neo-Kantian reading of Kant’s system, his presuppositions of practical reason were not wrong per se, as Nietzsche had argued,

22 Cf. Vaihinger, T P losop y of ‘as If’, 157, 169; Kant, Critique of Pure Reason, 104-106 (B192-195). 23 Kant, Critique of Pure Reason, 384 (B433)ff. 24 Immanuel Kant, "Critique of Practical Reason," in Practical Philosophy, ed. Mary J. Gregor (Cambridge: Cambridge University Press, 1996), 231-247 (235:113-235:134); Kant, "Groundwork of the Metaphysics of Morals," 95 (94:448). 25 Most famously, in G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (New York: Oxford University Press, 1967), §135, §135A (pp. 189-190). 26 In particular, see , The Gay Science, trans. Walter Kaufmann (New York: Vintage, 1994), §335 (pp. 263-266)., and Kaufmann’s note 65 to this aphorism: “It makes me think of the old Kant who had obtained the “thing in itself” by stealth – another very ridiculous thing! – and was punished for this when the “categorical imperative” crept stealthily into his heart and led him astray – back to “God,” “soul,” “freedom,” and “immortality,” like a fox who loses his way and goes astray back into his cage. Yet it had been his strength and cleverness that had broken open the cage!”

Page | 21 Leviathan Run Aground: Chapter 1 but were actually necessary fictions that enabled meaningful human action.27 Neo-Kantians moved beyond Kant in claiming that the distinction between phenomenon and thing-in-itself was not existential or ontological but, following the regulative role it played, normative.28 That is, some neo-Kantians interpreted the thing-in-itself not as a metaphysical claim but as a limiting concept of reason.29 By reinterpreting the thing-in-itself in normative rather than metaphysical terms, they felt they could salvage Kant’s system without glossing over its problems.

Neo-Kantians went on to theorize how metaphysical presuppositions were akin to faith. An individual necessarily believed – despite whatever logical dilemmas belief presented – that some metaphysical Idea ordered her reality, allowing her to engage meaningfully with reality and represent it to herself and others. These “regulative” ideas allowed the subject to behave as if norms and representations – which, according to the conclusions of the epistemological hiatus, have no actual relation to the empirical, causal world – did in fact affect it, allowing for agents to perform normatively meaningful actions.30 And regulative ideas allowed her to distill out normatively or factually insignificant data, overcoming the descriptive and ethical irrationality of a world comprised strictly of phenomena. Without them, intentional action would be impossible despite the unreality of metaphysical presuppositions they play an important role in grounding agents’ meaningful acts in the world, enabling their conscience to represent moral norms as real responsibilities, in the face of logical and ontological problems like causality and determinism and the logical barrier separating facts and norms.31

In light of the role they play in an agent’s perception of the world, Neo-Kantians came to see regulative ideas (such as God, the will, normative order, and the soul) as a necessary part of experience.32 They argued that humans must and do behave as if regulative ideas or metaphysical presuppositions exist, despite the logical problems of such behavior.33 Human thought cannot reproduce reality nor can it adequately conceptualize it – only value-laden representations of reality allow meaningful engagement with reality.34 Neo-Kantians responded to critics essentially by saying, ‘it doesn’t matter whether metaphysical suppositions are false, they are normatively necessary and will occur anyway.’

27 Vaihinger, T P losop y of ‘as If’, viii, 47, 285-291. 28 Steven G. Crowell, "Transcendental Logic and Minimal Empiricism," in Neo-Kantianism in Contemporary Philosophy, ed. Rudolf A. Makkreel and Sebastian Luft (Bloomington: Indiana University Press, 2010), 156; Gordon, Continental Divide, 54-55; Cf. Vaihinger, T P losop y of ‘as If’, 320. 29 Gordon, Continental Divide, 53; Cf. Vaihinger, T P losop y of ‘as If’, 74, 314. 30 Kühn, "Interpreting Kant Correctly," 274-275. Neo-Kantians did, however, find a basis for this in Kant, looking to passages in the Critique of Pure Reason where he suggests that practical utility (or even necessity) of regulative Ideas. Cf. Kant, Critique of Pure Reason, 532 (A624/B670) and 564-565 (A694-696/B722-724). 31 Cf. Vaihinger, T P losop y of ‘as If’, 311. 32 Cf. Vaihinger, T P losop y of ‘as If’, 306-307. 33 Cf.Hallowell, The Decline of Liberalism as an Ideology, 88. 34 Vaihinger, T P losop y of ‘as If’, 8.

Page | 22 Leviathan Run Aground: Chapter 1

Hans Vaihinger, the renowned philosopher and editor of Kant-Studien, the most important neo- Kantian journal of the early 20th century, articulated one influential version of this belief at the turn of the century, arguing that the philosophical presence of these “as-if” fictions extended back to the scholastics and found important shape in the work of Thomas Hobbes, such as his ideal of the , the state of nature, and Leviathan.35

Thus, neo-Kantians found a way to continue using Kant’s presuppositions of reason in a way that overcame 19th century criticisms. They asserted that, even though such presuppositions may be logically untenable, they play an important role for human life nonetheless as regulative ideas bridging the hiatus. The “fictions” of regulative ideas are necessary to make sense of an otherwise irrational and meaningless series of phenomena. For neo-Kantians, regulative ideas overcome the infinitude of phenomena and the otherwise ethical irrationality of the world.36

Later figures whose ideas were profoundly shaped by neo-Kantianism, including Max Weber, built off the relationship between regulative ideas and phenomenal reality by outright rejecting theoretical claims to perfectly portray or reproduce reality, arguing that such claims are logically impossible and inherently misleading for being incapable of producing meaningful knowledge precisely because of the qualitative infinity of phenomena.37 Weber, in fact, argued that science seeks only valid representations abstracted out of reality for the sake of understanding how best to affect phenomenal reality.38 Conceptual abstractions enable meaningful action not only by providing normative guidance to those acts, as noted above, but also to allow some sense of causal predictability.39

But the validity of the abstractions was still a sort of faith, premised on the relative accuracy of induced judgments agents believed were good enough for the purpose at hand; they were nothing

35 Cf. Vaihinger, T P losop y of ‘as If’, vii, 308. Vaihinger suggests that most of the important concepts of political philosophy today are useful ‘as if’ fictions, such as the of the soil, the original contract, the general will or collective will, any duty to religion or public belief in god, and the ideal of the wise legislator/founder. Moreover, and probably of interest to a thinker like Schmitt, was the inherent unsubsumability of legal concepts (formulated abstractly) to particular cases. He says that the subsumption of a particular real case under a law functions analogically because, logically, laws cannot include within their formulae all particular instances and thus move from abstract conditions to an abstract conclusion whereas actual cases presents conditions that are often incoherent with a clear formulation and thus involve abstracting out of their essence inconvenient aspects of the case that make subsumption impossible (that is, those aspects that are irrelevant or, more problematically, invalidate the subsumption but are judged to be trivial to the particular case). Vaihinger, T P losop y of ‘as If’, 33-54 (particularly 50), 116-124. Finally, Vaihinger argues that, without the assumptions of practical reasoning (e.g. freedom), the institution of criminal law makes no sense. Judges de facto assume, when passing sentences, that there is a soul as an inner governing principle constituting freedom of choice, character is a product of the will, and everyone has a conscience. Vaihinger, T P losop y of ‘as If’, 45-46. 36 E.g. Vaihinger, T P losop y of ‘as If’, 166-169; Weber, "Objectivity in Social Science and Social Policy," 108, 111, 125; Weber, "Politics as a Vocation," 362 (Cambridge); cf. Oakes, Weber and Rickert, 20ff. 37 Weber, "Objectivity in Social Science and Social Policy," 106-107; Vaihinger, T P losop y of ‘as If’, 15-17. 38 Weber, "Objectivity in Social Science and Social Policy," 87-90. 39Vaihinger, T P losop y of ‘as If’, 93-95, 108.

Page | 23 Leviathan Run Aground: Chapter 1 more than a postulate of practical reasoning.40 While the Idea supplements the perception of external reality, about which we can never have any certainty, serving to provide order and meaning to our experience of things, it is supplied from within, as it were, because it does not derive from knowledge of the world but from necessary regulative presuppositions. Thus, one’s perception of a meaningful reality is a reflection of whatever regulative Idea one holds. “It is nothing but the formal unity of consciousness expressing itself through the categories, and now reflecting itself back from the objective world of perception thus constituted.”41 But because of this hiatus, because our knowledge is limited to phenomena and we can only presuppose the answers to the questions essential to human life, there emerge irreconcilable pluralistic suppositions about the nature of this normative Idea. Weber suggested that the ethical irrationality of the world, resulting from the epistemological hiatus, coupled with the recognition of the epistemic value and importance of regulative Ideas, leads to multiple Weltanschauungen – that is, to polytheism and warring gods.42 Irreconcilable Ideas, allowing subjects to make sense of reality, tend to conflict over their fundamental presuppositions, and there is no way to reconcile them because the validity of one’s fundamental presuppositions is a matter of faith.43 b. Neo-Kantian Legal Theory

Neo-Kantian legal theory grew out of this earlier epistemological-philosophical movement. In general, it tended toward a sort of theoretical pragmatism. Because the epistemological assumption of the hiatus undermines definitive knowledge of absolute normative standards, legal theorists focus on other aspects of the law, like whether some set of presuppositions ‘works.’44 Pragmatism led to positivism, and strict adherence to the hiatus drove legal theorists to consider the sheer facticity of law and how it worked causally. The hiatus allowed legal theorists to work on constructing a scientific account of the law by focusing on strict causal, empirical relations among “legal” phenomena, abstracting out “meta-jurisprudential” considerations, such as morality, metaphysics, and power and politics, altogether. The positivistic bent of neo-Kantian legal theory drives it toward proceduralism – as long as a law conforms to logical, procedural requirements, it is legitimate law.

The work of Hans Kelsen exemplifies neo-Kantian .45 His juridical thought is grounded in the idea that a legal system must ultimately be grounded in a “transcendental-logico”

40 Kühn, "Interpreting Kant Correctly," 122-124. 41 Andrew Seth, "The Epistemology of Neo-Kantianism and Subjective Idealism," The Philosophical Review 2, no. 3 (1893): 297. 42 Max Weber, "Between Two Laws," in Political Writings, ed. Peter Lasswell (Cambridge: Cambridge University Press, 1999), 78-79; Max Weber, "Science as a Vocation," in From Max Weber: Essays in Sociology, ed. H. H. Gerth & C. Wright Mills (New York: Oxford University Press, 1959), 147-148. 43 Vaihinger, The P losop y of ‘as If’, 105; Weber, "Science as a Vocation," 152-153; Weber, "Politics as a Vocation," 335. 44 Hallowell, The Decline of Liberalism as an Ideology, 88. 45 Of course, Kelsen’s neo-Kantian jurisprudence is also important to outline because he was the primary target in Schmitt’s jurisprudential polemics.

Page | 24 Leviathan Run Aground: Chapter 1 presupposition he calls the Basic Norm (Grundnorm), which is logically required to render the validity of law intelligible – but whose content cannot be established through reason.46 The Basic Norm itself cannot be determined because of the limits of reason to go beyond observable legal phenomena. That is, Kelsen theorizes the Basic Norm as a sort of noumenal entity: a necessary presupposition but one about which one can know nothing except that it necessarily exists. Kelsen argued that the ultimate grounds for a closed legal system was a consideration of meta-jurisprudence and belonged outside of the science of positive law. The epistemological hiatus47 obscures the normative substance underlying the law – but one must act as if some “Grundnorm” were underlying observable legal phenomena for them to have their normative authority and, ultimately, their systemic coherence. The task of legal science was, therefore, not to determine the content of the one morally right law (a task that cannot be scientific because it extends beyond the limits of human reason) but to understand whether a pure legal form hovered over the plurality of actual legal forms and to use this knowledge to refine them.48 And this focus on facticity went hand in hand with the neo-Kantians’ embrace of democracy. The epistemological limits of human reason, formulated as the hiatus, deny any definite determination of values and norms, which lead Kelsen to the sober conclusion of political relativism. In fact, Kelsen thought 20th century metaphysical relativism was a positive advance for humanity, legitimating the spread of democracy and collective self-determination, freeing it from arbitrary authoritarian constraint.49

Legal fictions play a larger role in Kelsen’s jurisprudence. He broadens it beyond the basic norm and assesses critical concepts of the state, such as sovereignty, ‘the legal person of the state’, legal will, and unity of the legal order, arguing that these too are simply legal fictions50 - recognizing, however, that they are just that: legal fictions. One of Kelsen’s strongest theoretical contributions to jurisprudence was his purification of law by eliminating disadvantageous and ‘inutile’ fictions and replacing them either with scientific jurisprudence (which is to say,

46 Hans Kelsen, The Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1970), 198, 202, 218; Hans Kelsen, General Theory of Law & State (New Brunswick: Transaction Publishers, 2008), 116-117; cf. Stanley L. Paulson, "The Neo-Kantian Dimension of Kelsen's Pure Theory of Law," Oxford Journal of Legal Studies 12, no. 3 (1992): 323, 326; Andreas Kalyvas, "The Basic Norm and Democracy in Hans Kelsen’s Legal and Political Theory," Philosophy and Social Criticism 32, no. 5 (2006): 577. 47 Kelsen does not use this terminology – nevertheless, assumptions like Fichte’s/Baden’s hiatus irrationalis do ground his legal theory. 48 Kelsen, The Pure Theory of Law, 68. 49 Hans Kelsen, Vom Wesen und Wert der Demokratie (Tübingen: J.C.B. Mohr, 1929), 118. Kelsen makes similar arguments in his Hans Kelsen, "State-Form and World-Outlook," in Essays in Legal and Moral Philosophy, ed. Ota Weinberger (Boston: Reidel Publishing Co., 1974).. The first edition was published in 1920 – and his argument tying metaphysics into political form (relativism and democracy here) would not be lost on Schmitt, who would target Kelsen in particular for his recognition of “Political Theology” but, despite this recognition, support for Democracy and Relativism, both of which Schmitt abhorred cf. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [Politische Theologie], trans. George Schwab (Chicago: University of Chicago Press, 2005), 22. 50 Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen: J. C. B. Mohr (P. Siebeck) 1920), 19-20, 38, 54.

Page | 25 Leviathan Run Aground: Chapter 1 jurisprudence based strictly on empirically observable phenomena) or with what he thought were useful fictions, such as the Grundnorm.51

He criticizes the concept of sovereignty in particular for being merely a device for smuggling metajuristic phenomena into the practice of jurisprudence. Sovereignty – and the coercion attached to it – is undemocratic and provides an escape from the formal constraints of proceduralism by legitimating the arbitrariness of the state’s actions at its highest level. He felt 20th century law, corrected by his positive theory, could do away with the fiction of sovereignty because it is no longer a necessary or useful fiction. He argued the fiction of juridical sovereignty held humanity back just as the fiction of divine sovereignty had.52 Just as discarding the fiction of god’s sovereignty led to advances in human understanding of and power over the natural world, so too would eliminating the fiction of state sovereignty lead to advances in human understanding of and power over the social world.53 It was misleading to theorize the state as sovereign because this concept masked underlying a-juridical forces that manipulate public law, like economic and social powers.54 By replacing legal fictions like “sovereign” and “sovereign power” with the more scientific and formalized Grundnorm, Kelsen hoped to deprive meta- jurisprudential powers of their ability to manipulate the law in an intransparent way. The Grundnorm was purely normative and everything else that followed in his science of law hinged upon its normative qualities, rather than opaque claims of sovereign power or other ‘impure’ legal phenomena and allow the state to be wielded in a more neutral manner – pushing human self-rule with the law in a more fair, which is to say more open and democratic, direction.

To render jurisprudence scientific and to remain in accordance with neo-Kantian philosophical presuppositions, Kelsen sought to understand what universal qualities law has in its practice. That is, he seeks to understand the universal observable qualities of the behavior of and application of legal norms. To do this, Kelsen aimed to understand not transcendental principles or values underlying the law, which is to say its content, but instead its transcendental form. Kelsen pushed legal positivism to its limits and quarantined the study of law from any and all non-legal (or meta-jurisprudential) phenomena.55 By focusing on form, Kelsen concluded that as long as law was enacted in conformity with proper procedure and was generally enforced, it was legitimate law. But this, importantly, meant neo-Kantianism was wholly indifferent to the content of law – as noted already above, Kelsen, for example, was a democratic relativist with regard to jurisprudence; he was driven to this standpoint logically by his own epistemological assumptions, including the hiatus. In the end, neo-Kantianism’s epistemological assumptions, neutrality, and focus on proceduralism in jurisprudence caught up with it. Critics assailed it for

51 Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts, 21. 52 Hans Kelsen, Der Soziologische und der juristische Staatsbegriff: Kritische Untersuchung des Verhältnisses von Staat und Recht (Tübingen: J.C.B. Mohr, 1922), 252. 53 Rupert Emerson, State and Sovereignty in Modern Germany (New Haven: Yale University Press, 1928), 174-175. 54 Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts, 7. 55 Hallowell, The Decline of Liberalism as an Ideology, 95-96.

Page | 26 Leviathan Run Aground: Chapter 1 lacking any substantive basis to criticize the content of the law, opening the door to the destructive populist movements that undermined Weimar in the early 1930s.56

Carl Schmitt’s relationship with neo-Kantianism is complicated, and has not received sufficient attention. Scholars usually focus on Schmitt’s polemics against the school (failing to distinguish neo-Kantian positivism from the broader philosophical movement), and minimize or simply ignore his debts to it.57 Schmitt completed his degree in jurisprudence at the University of Straßburg in 1912, while Wilhelm Windelband was its rector. Windelband was a leading member of the Baden School of Neo-Kantianism, whose other members included Heinrich Rickert, Emil Lask, Ernst Troeltsch, and Max Weber.58 Schmitt’s academic introduction to the movement came through Paul Laband, who taught him jurisprudence at Straßburg.59 Yet, sensitive to the importance of historical context in affecting legislation and jurisprudence, Schmitt incorporated historicism and the centrality of the state into his early jurisprudence.60 This incorporation was not, importantly, incoherent with neo-Kantianism, central thinkers within the movement, notably Fischer and Lange, balanced Kant out with Hegelian insights.

The greatest early influence on Schmitt came not from his teachers but from his studies. Hans Vaihinger’s 1911 Die Philosophie des Als Ob (The Philosophy of ‘As If’) was one of Schmitt’s main preoccupations until the First World War broke out. Many of his earliest works develop Vaihinger’s ideas further in the context of jurisprudence and the state.61 Schmitt was interested in Vaihinger’s influence and approval enough to self-review two of his earliest books, Gesetz und Urteil (1912) and Der Wert des Staates und die Bedeutung des Einzelnen (1914) in Vaihinger’s Kant-Studien62 as well as to write a glowing review of Vaihinger’s Die Philosophie des Als Ob in the Deutsche Juristen-Zeitung.63

56 cf. Hallowell, The Decline of Liberalism as an Ideology, 105-121; Emerson, State and Sovereignty in Modern Germany, 186-187. 57 Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven: Yale University, 2003), 22. Again, on this, I believe William E. Scheuerman is the one scholar who attempts to engage with Schmitt’s neo-Kantian roots and demonstrate how these continue to play a role in his thought. While I disagree with some of Scheuerman’s conclusions, his command of Schmitt’s philosophical and juridical origins are phenomenal Cf. Scheuerman, Carl Schmitt, esp. at 15-38.. 58 Bendersky, Carl Schmitt: Theorist for the Reich, 9. 59 Mehring, Carl Schmit, 26, 90-95. 60 Galli, La Genealogia della Politica, 83. 61 Carl Schmitt, "Juristische Fiktionen," Deutsche Juristen-Zeitung 12(1913); Carl Schmitt, "Selbstanzeige des Buches ‚Gesetz und Urteil‘," Kant-Studien 18(1913); Carl Schmitt, "Selbstanzeige des Buches ‚Der Wert des Staates und die Bedeutung des Einzelnen‘," Kant-Studien 19(1914); Carl Schmitt, "Recht und Macht," in Die Militarzeit 1915 bis 1919. Tagebuch Februar b s D m : ufs tze und Materialien, ed. Ernst Hüsmert and Gerd Giesler (Berlin: Akademie Verlag GmbH, 2005); Carl Schmitt, Gesetz und Urteil (München: C. H. Beck, 2009); Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen [The Value of the State and the Meaning of the Individual] (Berlin: Dunker & Humboldt GmbH, 2004); Cf.Mehring, Carl Schmit, 44. 62 Schmitt, "Selbstanzeige Des Buches ‚Gesetz und Urteil‘," 165-166; Schmitt, "Selbstanzeige des Buches ‚Der Wert des Staates und die Bedeutung des Einzelnen‘," 529-530. 63 Schmitt, "Juristische Fiktionen," 804-805.

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Four years of mechanized slaughter deeply affected German scholars’ perception of the world. Neo-Kantianism fell out of favor after the war. Europe believed less and less in the viability of the Kantian tradition. But not principally for whatever philosophical shortcomings it may have had. Instead, Kant and neo-Kantianism fell out of favor because they were believed to have simply been oriented by the wrong questions.64 Cultural pessimism that had been brewing since the turn of the century, and for the younger generations who had experienced the war, the formality and concern with neo-Kantian epistemology no longer made any sense. These “older” modes of thinking were simply illegitimate. By 1918, Schmitt had broken with neo-Kantian jurisprudence.65 In contrast to neo-Kantianism’s formalism, Schmitt sought outlets for “spirit.” The beginning of this turn was most identifiable with the embrace of irrationality in his writings on Däubler’s Nordlicht following Eisler’s death in 1915.66

Schmitt became more concerned to show how “meta-juridical” factors affected legal decisions and were necessary to understand them.67 In other words, Schmitt rejected the idea that legal phenomena are “detached from processes of social formation.”68 Schmitt’s clearest criticism of the neo-Kantian school comes in the form of his attacks on Hans Kelsen in his 1922 Political Theology. There, despite agreeing with Kelsen about the existence of a divide between facts and values and the need for positing an abstract ‘Idea’ of Recht (that is, epistemologically), Schmitt argues that Kelsen is wrong to view something like the hiatus as a real barrier to norms’ regulation of reality.69 As long as there is the state, this logical barrier can be overcome. Agreeing with neo-Kantian jurisprudence, Schmitt thought there was no way to definitely contextualize a norm because its meaning depended on its context.70 Schmitt thought that neo- Kantian formalism in legal theory undermines its practicality because it forces them to ignore concrete reality for the sake of logical rigor.71 He thought neo-Kantianism resulted in an aporetic formulation – the logical dilemma of the fact/value divide makes them impotent to assess the actual relationship between the two domains. And Schmitt thought he could overcome it by moving beyond neo-Kantian legal formalism and appealing to political notions like sovereignty and authority and incorporating sociological insights. He argued neo-Kantianism’s formalism led it to miss the defining question of jurisprudence: how the concepts and actual practice of jurisprudence are determined – how an Idea of Recht is realized concretely in a particular place and time.72 Neo-Kantianism formalism led it to be overly preoccupied with questions of formal

64 Peter Uwe Hohendahl, "The Crisis of Neo-Kantianism and the Reassessment of Kant after : A Preliminary Remark," The Philosophical Forum 41(2010): 35-37; cf. Ernst Troeltsch, Spektator-Briefe. Aufsätze über die Deutsche Revolution und die Weltpolitik 1918/22 (Tübingen: J. C. B. Mohr, 1924). 65 Schwab, The Challenge of the Exception, 14; Scheuerman, Carl Schmitt, 29. 66 Mehring, Carl Schmit, 84. 67 Ulmen, "The Sociology of the State," 10. 68 Jeffrey Seitzer, "Introduction to Constitutional Theory," in Constitutional Theory (Durham: Duke University Press, 2008), 7-9. 69 Schmitt, Political Theology, 18, 28. 70 Ulmen, "The Sociology of the State," 11. 71 Schmitt, Political Theology, 31. 72 Seitzer, "Introduction," 8.

Page | 28 Leviathan Run Aground: Chapter 1 legality because, according to the Fact/Value divide, this was the only problem about which jurisprudence could really concern itself. Their juridical formalism, Schmitt would eventually argue, made them completely helpless to address the real problems of Weimar – because really any that adhered to the constraints of legality satisfied the neo-Kantian prerequisite of legitimacy, be it a Nazi party or the SPD.

Schmitt’s criticisms of neo-Kantianism bring to mind Hegel’s critique of Kant in Philosophy of Right paragraph §135 for his ‘empty formalism’ in morality.73 Also reminiscent of Hegel are Schmitt’s concerns with meta-juridical factors reflects his belief in the necessity of contextualization of an abstract norm in its historical moment. This epistemological concern is, as I show in the next chapter, an aspect of neo-Kantian thought that Schmitt retains – albeit in an evolving form – throughout his career. Schmitt’s complicated relationship with neo-Kantianism, from the perspective of his entire body of work, could be summarized as the following: despite his clear rejection of neo-Kantian state and legal theory, Schmitt retains basic Baden neo-Kantian epistemological assumptions. And these assumptions will explain similarities between his constitutional and state theory and that of his contemporaries, including important foundational overlaps with Hans Kelsen.74 These assumptions are essential for making sense of his constitutional and state theory.

2. Neo-Hegelian Jurisprudence: The Emergence of Recht out of Society

Neo-Hegelianism jurisprudence developed out of neo-Kantianism, building upon similar scientific and epistemology foundations. Neo-Hegelianism too attempted to avoided metaphysics. In particular, neo-Hegelians strove to avoid linking Hegelian jurisprudence to Hegel’s discredited speculative metaphysics.75 Like neo-Kantianism, Neo-Hegelianism admitted epistemological challenges to metaphysical claims, such as the hiatus irrationalis, and recognized the problems positivism and modern scientific method posed for such investigations. Neo-Hegelians too believed they could provide scientific knowledge of the law.

Neo-Hegelianism attempted to address criticism of neo-Kantianism, which argued that it had not overcome the substantive problem Hegel identified in Kant a century earlier: neo-Kantianism was overly formalistic and could not provide a substantive normative understanding of or guide

73 Cf. Schmitt, Political Theology, 35. Schmitt’s critique of Kelsen, here, seems to follow tacitly the outline already sketched by Hegel in suggesting that rigid adherence to the normative side of the fact/value divide forgets something important about jurisprudence: even if it is something logically normative and not factual it has a curious relationship to the factual world nonetheless. He makes a distinction between transcendental form and legal form, defining transcendental form as empty, formal, and a priori; Legal form, on the other hand, is concrete and particular, it is personal and immaterial, and it is decisive and in the world. 74 Cf.Peter C. Caldwell, Popular Sovereignty and the Crisis of German : The Theory & Practice of Weimar Constitutionalism (Durhan: Duke University Press, 1997). 75 Emerson, State and Sovereignty in Modern Germany, 186-187.

Page | 29 Leviathan Run Aground: Chapter 1 to jurisprudence.76 That exemplary neo-Kantians, such as Hans Kelsen, were openly relativistic only seemed to confirm this objection. In addition, critics argued neo-Kantianism lacked legitimacy because the movement merely supplanted metaphysics with methodological precepts. They criticized this, because they believed that neo-Kantianism had come no closer to actually scientifically accounting for the human phenomena that it purported to study. Even the Baden School of neo-Kantianism, the school most concerned with the role that culture played both in scientific knowledge and human life could make no claims about content – merely form – and therefore could offer no specific ethical prescriptions.

To overcome these criticisms yet remain scientific, neo-Hegelianism looked to the ethical structures emerging out of a particular state and society. Neo-Hegelianism agrees with neo- Kantianism that Recht does not originate from the state.77 Recht emerges out of society itself. Rather than seeking to derive the ideal form of law, the task of jurisprudence was to analyze the principles of right emanating from a particular society in order to best understand the ideal laws to which that same society ought to conform in its actual legislation. The movement instead focused on formal relations among legal phenomena, focusing strictly on their facticity – how legal phenomena emerge out of social and political questions.78 Insofar as neo-Kantianism sought to purify law by eliminating metajuristic phenomena and focusing on its transcendent formal characteristics, neo-Hegelianism sought to understand exactly how jurisprudence is merely a function of these meta-juridical phenomena, focusing on how a particular state and particular ethical society contributed to its system of legal practice. In accounting for this, they turned in particular to the nascent discipline of sociology.

Neo-Hegelianism constructed its theoretical framework by turning to Hegel’s , ethics, and state theory. They conceived of law as a social tool. The end of jurisprudence was the promotion of the highest ethical community: the state. Neo-Hegelians thought, by tying power and coercion into social coordination, the highest ethical community and the most substantive form of human life and freedom could be realized. Objective right could be realized. Believing in the ethical superiority of both factical law and the community over the individual, neo-Hegelians were untroubled by the explicit subordination of individual wills to the state. And accordingly, for neo-Hegelians, neo-Kantianism was wrong: meta-juridical phenomena like sovereignty and the state were real. And rather than understanding meta-juridical phenomena as undermining the practice of law, as neo-Kantians did, they believed that these phenomena were indispensible for the law, grounding its practice.

76 Fritz Ringer, The Decline of the German Mandarins (Cambridge: Harvard University Press, 1969), 371; cf. Hegel, Philosophy of Right, §135, §135A 77 Joseph W. Bendersky, "Introduction to Carl Schmitt's on the Three Types of Juristic Thought," in On the Three Types of Juristic Thought (Westport: Praeger Publishers, 2004), 9. 78 Hallowell, The Decline of Liberalism as an Ideology, 89-90; Emerson, State and Sovereignty in Modern Germany, 188.

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Interestingly, despite clear differences between the two movements, both schools overlapped on one important point: any and every actually existing state was a Rechtsstaat.79 For neo- Kantianism, every state was a Rechtsstaat because every state was merely the personification of its legal order and that, as long as the procedural constraints on the formation of law were maintained, that law was legitimate. Thus every state adhering to the formal constraints of legality was a Rechtsstaat. For neo-Hegelianism, every state was a Rechtsstaat because law was identified with the will of the state and thus, whatever the particular content, what the state ‘willed’ was de facto law. While one understood law’s form without content, the other understood laws content without form – but both ended up without criteria by which to criticize existent legal systems. Their lack of a critical basis stemmed from their inability to clearly link facts and norms, which led them to marginalize or flat out reject transcendental norms’ relation to these facts. Regardless, both schools’ interests in accommodating natural science and positivism led to a problematic positivistic conclusion: whatever the state does is legally legitimate and there is no clear basis by which to criticize its meta-juridical legitimacy. In Germany, both schools’ focus on facticity and natural scientific method and both schools’ avoidance of transcendental normative standards at best deprived German legal theorists of a tool to criticize the Nazi movement’s legal revolution.80

Schmitt’s state theory does have some overlaps with both Hegel’s state theory and neo-Hegelian jurisprudence.81 Schmitt argued the state is the highest ethical community and the only institution capable of overcoming the of and achieving a total normative community. As we shall see in later chapters, although he never uses the term, Schmitt seems to conceive of the state as the realm of “objective reason” and as the means to establish something like Hegel’s Sittlichkeit. The existential formation of identity his Friend-Enemy distinction implies was clearly influenced by Hegel’s master-slave dialectic. Schmitt’s critique of Kelsen follows the neo-Hegelian critique of neo-Kantian ‘formalism’ and, again like neo-Hegelianism, seeks to understand how meta-juridical phenomena, particularly sociological and political phenomena, affect juristic practice. The role that history and the uniqueness of historical events play in Schmitt’s jurisprudence and state theory is also clearly derivative of Hegel. Schmitt’s neo-Hegelian side was apparent enough to his contemporaries for the SS journal, , to accuse him of this publically in their attempt to discredit him his participation in the Nazi government and to undermine his character.82

But Schmitt also incorporates traditions explicitly critical of Hegelian thought and Idealism in general. After the war, Schmitt was influenced strongly by the work of Soren Kierkegaard, who

79 Hallowell, The Decline of Liberalism as an Ideology, 99-106. 80 Hallowell, The Decline of Liberalism as an Ideology, 106. 81 E.g. Hallowell, The Decline of Liberalism as an Ideology, 102; Emerson, State and Sovereignty in Modern Germany, 167; Bendersky, Carl Schmitt: Theorist for the Reich, 222. 82 Bendersky, Carl Schmitt: Theorist for the Reich, 240ff; Mehring, Carl Schmit, 154.

Page | 31 Leviathan Run Aground: Chapter 1 was a strong critic of Hegel.83 Kierkegaard’s work became popular as a foil for both neo- Kantianism and neo-Hegelianism because of his turn to the irrational and for his arguments about the role of faith.84 Schmitt used Kierkegaard’s writings to help make a case for committing to “a basic Weltanschauung emanating from one source.”85 Schmitt’s work hinges on his use of concepts, such as sovereign decision, the exception, and political theology, that clearly come from Kierkegaard. He even explicitly refers to Kierkegaard in Political Theology.86 In addition, against a sort of Hegelian reading, Schmitt does not base his theory on a teleological or rationalistic philosophy of history or any definitive idea of “objective reason” in the world – although he does incorporate historical change and a sort of disenchanted sense of political rationality.87

Schmitt also displays some of Nietzsche’s influence in his writing style and ideas – something he even later acknowledges.88 It’s unclear to what extent he was influenced by Nietzsche directly, because clearly some of that influence is mediated by Max Weber. But at least in one way, Nietzsche plays an important role in shaping Schmitt’s thought in an un-Hegelian direction: value fragmentation and irreconcilability of value spheres undermine any Hegelian aspirations to politically unify all under the ideal of “the Ethical.”89 Of course, “the political” may have some Hegelian influence – after all it constitutes some degree of unity within the state. But Schmitt does go beyond Hegel with his sphere differentiation.90

In addition, aspects of Schmitt’s writings bear traces of his neo-Kantian roots, not to mention his later discovery of Kierkegaard. For both neo-Kantianism and Kierkegaard, phenomena are separated from values and rationality by a gap that cannot be logically crossed – thought inspired by Kierkegaard simply crosses this gap through a while neo-Kantianism stays within the confines of logic. In an interesting Festschrift for Hans Freyer, Schmitt makes an important identification of a third movement to come out of Hegel besides the Right and Left Hegelians,

83 Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham: Duke University Press, 2004), 47; Guy Oakes, "Introduction to Political ," in Political Romanticism (New Brunswick: Transaction Publishers, 2011), xxxiii. Neo-Kantian philosophy, including the hiatus irrationalis, and the Kierkegaardian Knight of Faith are not theoretically irreconcilable. See Galli, La Genealogia della Politica, 81. in particular for the reconcilability of neo-Kantianism with Kierkegaard 84 Gordon, Continental Divide, 67. 85 Schwab, The Challenge of the Exception, 24; Schmitt, Political Theology, 15. Although elements of Kierkegaard are still felt in even later writings Schmitt makes frequent references to the concept either/or in his Constitutional Theory and retains other central concepts from him throughout his life. Cf. Galli, La Genealogia della Politica, 80. 86 Setzer makes the claim, rightly, that Schmitt is follows Weber in breaking from the tradition of positivism without completely losing sight of some of the movement’s defining claims. Cf. Seitzer, "Introduction," 13. 87 Mehring, Carl Schmit, 47; Tracy B. Strong, "Foreword to the Concept of the Political," in The Concept of the Political (Chicago: The University of Chicago Press, 1996), xx-xxiv. 88 Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien, 3rd ed. (Berlin: Duncker & Humblot, 1963), 17; Cf.Karl Löwith, "Max Weber und Carl Schmitt (1964)," Zeitschrift für Kulturphilosophie 2(2007). 89 I’m indebted to Andreas Kalyvas for drawing this to my attention. 90 Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: The University of Chicago Press, 1996), 23ff.

Page | 32 Leviathan Run Aground: Chapter 1 emanating from .91 Dilthey is the scholar whose thought paved the way for Baden neo-Kantianism, particularly Weber and Rickert, through the distinction between Naturwissenschaft and Geisteswissenschaft among other things. Dilthey’s appeal to Kantian epistemology is echoed within the concept of the hiatus irrationalis. Besides applauding Freyer’s work within this tradition, Schmitt also seems to see himself within this tradition.92 Schmitt’s own engagement with Dilthey shows the complexity both of what it meant to read Hegel in the early 20th century and Schmitt’s own understanding of Hegel. Qualities like these make it difficult to characterize Schmitt as neatly Hegelian, despite the overlaps his thought has with core features of that tradition.

3. Pluralism: A Challenge to the Legitimacy of the State and the Political

Political pluralism popularized in the first quarter of the 20th century, particularly in England and the through the work of Harold Laski.93 Pluralism criticized institutions like the sovereign state, positive law, and capitalism on normative grounds. Although pluralism agreed with on the importance of granting representation to economic institutions and in the ideal of coordinating societal institutions to expand democratic legitimacy, it differed from other “third way” movements by seeking to do away with authoritative institutions altogether.94 Although it had some similarities with in this regard, it did not aim to do away with societal order altogether. Instead, it sought to create a dense and overlapping normative oversight network spanning all institutions and spheres of human life, especially the state, for the sake of preserving and expanding individual freedom. Harold Laski was one of the most well-known pluralists and Schmitt believed his theory exemplified the movement.

The basis of Laski’s pluralist criticism of the state is rooted in the normative desirability of individual freedom against arbitrary rule. In his eyes, the state was the greatest source of arbitrary domination and was the main target of his criticism.95 He argues one should consider it neither a permanent institution nor a normatively desirable one, at least in its present form.96 From his historical critique, he directed the substance of his argument against traditional “monist” political philosophy, ubiquitous in modernity through the works of Bodin, Hobbes, Rousseau, Hegel, and Bentham. Monism, according to Laski, is the presence of a centralized and hierarchical political institution, possessing “sovereign” authority, at least in principle, over all

91 Cf. Ricardo Cavallo, Le Categorie Politiche del Diritto: Carl Schmitt e le Aporie del Moderno (Roma: Bonanno Editore, 2007), 143-145. 92 Schmitt, "Die Andere Hegel Linie," 2. 93 Rainer Eisfeld, "The Emergence and Meaning of Socialist Pluralism," International Political Science Review / Revue internationale de science politique 17, no. 3 (1996): 267-268. 94 Eisfeld, "The Emergence and Meaning of Socialist Pluralism," 274. 95 Harold J. Laski, "The Pluralistic State," The Philosophical Review 28, no. 6 (1919): 562. 96 Laski, "The Pluralistic State," 575.

Page | 33 Leviathan Run Aground: Chapter 1 aspects of society.97 Against monism, Laski argued that individuals had natural rights a priori, most importantly a right to freedom, and that our political institutions should reflect this inherent quality.98 Accordingly, attributing sovereign power – the legally unqualified right to legislate, enforce, and judge – to the state was at odds with individuals’ natural rights.

Although Laski never put it in these terms, the core aim of pluralism appears to have been non- domination. He theorized a decentralized, plural network of associations and institutions across society – of which the state was merely one.99 The ideal was total: every association and even every individual ought to have the same democratic authority. The goal was to create a system of checks and balances across society, using these democratic associations and institutions to co- regulate themselves in order to reduce the potential any one set of institutions or interests would have to dominate any other aspect of society, thus maximizing individual freedom.100 Pluralists believed that this system of checks and balances would force political and social acts by institutions to be morally legitimate: if an institution were judged by its ‘peer’ institutions, it would aim to behave as morally and legally legitimate as possible in order to avoid being sanctioned. They thus argued that by demoting the authority and status of the state, so to speak, and putting it on equal terms with other institutions, individual freedom would be best realized. The term “pluralism” thus comes from the ideal of having authority pluralized and democratized across society. Ideally, the only authority that would remain would be the moral authority of reason – whose “sovereignty” would result in a state devoid of arbitrary domination.

While pluralism was a popular and influential theoretical movement, especially among the left in the Anglo-Saxon world, it had practical difficulties in realizing its goals. Namely, there was no clear practical plan for the implementation of the decentralized, non-hierarchical form of governance it idealized. Nonetheless, it was a significant critical movement, especially for Carl Schmitt. Schmitt saw pluralism as one of the most degenerate forms of secularization (as discussed in the next chapter). This trajectory of secularization undermined the unity and authority of the state. Pluralism completely relativized the state. By subjecting the state to moral appraisal by independent organizations, Schmitt thought that pluralism lost an essential aspect of political life; its opposition to authority, however well-intentioned, could not realize its normative goals. Political authority, however evil, was an essential aspect of the state. Pluralism was thus anathema to the state. Consistently in his Weimar era works, Schmitt criticizes Laski and other pluralists or pluralistic thinkers, like G.D.H. Cole and Otto von Gierke. Although pluralization was never successfully implemented, its theoretical presence was alarming enough – eminent political theorists were advocating curtailing state authority, seeking to replace it with ‘decentralized’ authority and free, independent coordination among institutions.

97 Laski, "The Pluralistic State," 568. 98 Laski, "The Pluralistic State," 573. 99 Eisfeld, "The Emergence and Meaning of Socialist Pluralism," 274. 100 Laski, "The Pluralistic State," 569, 572.

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Schmitt thought that the fact that pluralism appeared to be legitimate alone bore practical consequences for the state. Pluralistic theory laid the conceptual groundwork for the “quantitatively” total state and legitimated its pursuit.101 Pluralism reflected a general trend in the rise of political pluralistic legitimacy, an ideology that he argued was driving Weimar into a state of nature. Although this is discussed in depth in Chapter 3, briefly what Schmitt meant was a state in which the once distinct spheres of state and society were so interpenetrated (and there was no clear boundary between what was “political” and what was not) that all facets of life were subject to governmental regulation and intervention. The quantitatively total state created a strong incentive for factions within society to try to obtain power in order to ensure their particular interests were first not subject to regulation and second to impose their values across society. Schmitt saw this outcome as a consequence of a general anti-political trajectory in the west, of which pluralism was merely the latest and most severe symptom, and he was deeply opposed to it.

4. Revolutionary Conservativism: Conservativism with Nothing to Conserve

Few scholars have taken up the question of Schmitt’s relationship to the so-called conservative revolution. Those who do, such as Carlo Galli and Joseph Bendersky, strongly but briefly argue that Schmitt was no revolutionary conservative.102 While Schmitt may not best be identified as a revolutionary conservative, the movement may nevertheless be important for understanding Schmitt. Schmitt was an avid reader of Maurras’ Action française, the French source for revolutionary conservativism.103 He had a close relationship with principle figures from the movement, including Ernst Jünger,104 Hans Freyer,105 Ernst Forsthoff,106 and Arthur Moeller van den Bruck.107 He attended their dinner parties, corresponded with them, and read and was read by the revolutionary conservatives. And he also published articles, such as “Weiterentwicklung des totalen Staats in Deutschland”, “Führertum als Grundbegriff des nationalsozialistischen Rechts”,“Die europäische Kultur im Zwischenstadium der Neutralisierung,” and “Die Wendung zum totalen Staat” in the flagship journal for German revolutionary conservativism, Europäische Revue. Besides these biographical intersections, Schmitt also shares some meaningful theoretical

101 Cf. Schmitt, The Concept of the Political, 24-25. 102 Bendersky, Carl Schmitt: Theorist for the Reich, 137ff. 103 Gopol Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (New York: Verso, 2000), 24-25, 55-57. 104 Bendersky, Carl Schmitt: Theorist for the Reich, 135. 105 Jerry Z. Muller, The Other God That Failed: Hans Freyer and the Deradicalization of German Conservativism (Princeton: Princeton University Press, 1987), 198, 204; Galli, La Genealogia della Politica, 33, 204, 275. 106 Reinhard Mußgnug, Dorothee Mußgnug, and Angela Reinthal, eds., Briefwechsel: Ernst Forsthoff - Carl Schmitt (Berlin: Akademie Verlag, 2007). 107 Mehring, Carl Schmit, 74. Schmitt’s relationship to revolutionary conservativism was indeed personal. In what must have been a really interesting night, Schmitt met Theodore Däubler and Arthur Moeller van den Bruck (and later also Julius Bab) to “cruise the streets of Berlin” in December 1914.

Page | 35 Leviathan Run Aground: Chapter 1 overlaps with the movement. Spelling out the movement yields another important point of reference with which to approach Carl Schmitt.

Revolutionary Conservativism was strongest around the turn of the century. The movement’s intellectual roots extend back to the , when counterrevolutionaries, such as de Maistre, Cortes, and Bonald, opposed the advent of the Enlightenment by refitting values and institutions from the ancien régime.108 Like the counterrevolutionaries, revolutionary conservativism developed in response to the decline of traditional social and political structures, the ancien régime, and rise of mass society and democratization, liberalism and parliamentarism, and (capitalistic) materialism.109

The social basis of revolutionary conservativism tended to be the middle classes, in Germany especially the educated middle-class, the Bildungsbürgertum.110 The German education system helps to explain the relationship between the middle classes and this movement and its core values. By the late 19th century, late 18th century movements like Sturm und Drang and Romanticism had become a central feature of education, and were complemented by Nietzschean radical aristocratism and agonal perfectionism.111 At their most impressionable, German students were taught to adore late 18th century values, “authenticity,” and irrationality and to scorn technology, urbanity, “the people,” and Enlightenment rationalism. Paradoxically, as societal changes in the late 19th and early 20th centuries threatened and undermined these core values more and more, their emphasis in education only increased. Major changes, such as the radio, mass media, the airplane and automobile, the technologically driven mechanized slaughter of the First World War, advanced industry and capitalism, urbanization, and the growth of modern institutions like the state and bureaucracy, were responded to by underscoring the value of the romantic ways of life lost.112 In Germany, moreover, the overthrow of the Second Reich and its replacement with a liberal, democratic, and socially progressive state exacerbated these other major changes. These turn of the century changes further catalyzed a process that had already been progressively building in society.

As their name suggests, revolutionary conservatives were a chimera. Although their views overlapped with traditional conservativism, they also differed from it substantially, moving in radical, ‘un-conservative’ directions. described them as “conservatives out of nostalgia and revolutionaries out of despair.”113 They were in a way ‘right Nietzscheans,’ and embraced his scathing critique of “last men,” the world of passionless bourgeois materialism,

108 Woods, The Conservative Revolution in the Weimar Republic, 1. 109 Fritz Stern, The Politics of Cultural Despair: A Study in the Rise of Germanic Ideology (New York: Anchor Books, 1965), 2. 110 Woods, The Conservative Revolution in the Weimar Republic, 4; , : Technology, Culture, and Politics in Weimar and the Third Reich (New York: Cambridge University Press, 1987), 22. 111 Stern, The Politics of Cultural Despair, 330; Woods, The Conservative Revolution in the Weimar Republic, 37ff; Ringer, The Decline of the German Mandarins, 241, 258. 112 Cf. Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich, 1-2. 113 Stern, The Politics of Cultural Despair, 327.

Page | 36 Leviathan Run Aground: Chapter 1 and his indictment of the Enlightenment.114Although they rejected the changes occurring around them, especially the loss of traditional values and culture, revolutionary conservatives believed a simple restoration of the past was impossible. The events that had brought about those changes, particularly modern science, technology, and mass consciousness, could not simply be erased.115 The only way out was to complete the revolution that had stalled at liberalism and capitalism.116 They reacted against the recently established status quo in the name of what had been overthrown but in order to realize a , one capable of confronting and controlling the forces that had overthrown the old.

Revolutionary conservatives share important values with traditional conservativism. They were deeply opposed to mass society for its irrationalism, its lack of culture, and from their general disdain for “plebian” society. They were “conservative” especially with regard to two prevailing of the time: and liberalism. As conservatives, many saw both worldviews as equally materialistic, rootless, and driven by a slave morality.117 Both privileged the individual over the community. For conservatives, both liberalism and socialism’s materialism were woefully ignorant of the highest qualities of human nature, namely spiritual values and political community, thus undermining the possibility for meaning and human greatness.118

Between liberalism and socialism, revolutionary conservatives tended to see the former as the lesser of two evils – especially after the bolshevist uprising in Russia.119 Moeller van den Bruck described socialism as a “stunted” Weltanschauung.120 They believed its fixation on material redistribution and the transfer of capital (or other resources) lacked any meaningful orientation; it was a modern, destructive form of panem et circenses. More than anything else, revolutionary conservatives feared socialism for its capacity to catalyze mass’ pathos, further spiritual emptiness, and undermine whatever virtues of the ancien régime remained.121

An aversion to redistribution did not mean revolutionary conservatives were economically liberal, however. Revolutionary conservatives believed liberalism made a virtue out of egoism in general, most importantly in the spheres of politics and economics. By valorizing egoism and materialism,

114 Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich, 29-30; Woods, The Conservative Revolution in the Weimar Republic, 29, 32-33, 47. 115 This is in spite of the fact that Romantic values helped to spur many revolutionary conservatives on the path they were on to begin with (as I discuss below). Nonetheless, it is possible for them to use Romanticism as a basis to criticize modernity without embracing its corresponding positive values, which drove many to embrace movements like Lebensreform, Freibaden, and Diederichs’ Neuromantik. 116 Muller, The Other God That Failed, 19; Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich, 11-12; Cf. Arthur Moeller van den Bruck, G ma y’s T d Empire (London: G. Allen & Unwin, 1934), 34-37, 203. 117 George L. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich (New York: Howard Fertig, 1998), 22. 118 Cf. Bruck, G ma y’s T d Emp , 50-51. 119 Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 237. 120 Bruck, G ma y’s T d Emp , 39. 121 Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 68-69.

Page | 37 Leviathan Run Aground: Chapter 1 the and basic individual rights seemed to turn society into a mere mass of individuals. They abhorred how liberalism undermined community by atomizing and exploiting individuals, offering no social safety nets in return.122 Like traditional conservatives, revolutionary conservatives believed that the community had an obligation to care for the least well off, remedy market excesses, and restrict the market’s independence for the common good. For these reasons, they were sympathetic to some of the more humanistic aspects of socialism. Some even sought a “German” socialism that would counteract the egoism of liberalism and excesses of capitalism by reincorporating individuals into the community – but without Marxism’s spiritual bankruptcy and mechanical redistribution.123

Revolutionary conservatives were also deeply skeptical of liberal democratic political institutions, especially , individual political rights, and the principle of ‘one man, one vote.’124 They saw basic rights as politically equivalent to the economic individualism of the free market. They believed basic rights similarly individuated communities and valorized self- interest. Representative democracy, on the other hand, was not actually democratic at all. It failed to generate the people, which is to say political community. Instead, it merely aggregated individuated wills. The side with greatest number became ‘right’ through contingent, or accidental, factors – rather than the best interested of the community or what was objectively right. It mistook material democracy for substantive democracy, in a way. This form of democracy disgusted revolutionary conservatives for its arbitrary and nihilistic proceduralism. It reflected how the lacked any substantive ties to a particular place, culture, and system of beliefs and values.125 This void left liberals with no transcendental purpose. Their lives could at best be devoted to the satisfaction of material needs. Liberal political freedoms were an extension of these shortcomings, which served to rationalize the pursuit of selfish motives against and above those of ends of the community.

Revolutionary conservatives diagnosed the maladies of liberalism, and to a certain extent socialism, from the rise Zivilisation, which had supplanted Kultur. Kultur was defined as both the cultivation of individuals through a humanistic focus on ethics, art, and culture as well as humanity’s ‘civilized’ achievements – all necessary to fully develop one’s character.126 It is entwined with the concept Bildung. Zivilisation was a superficial type of learning and self- development, lacking in Kultur’s prized . Zivilisation was a product of the “West” (French and British). It allowed for great technological progress, but it seemed to lack a

122 Woods, The Conservative Revolution in the Weimar Republic, 27. 123 Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich, 35; Cf. Bruck, G ma y’s T d Emp , 71. 124 Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich, 35; Fritz Stern, "The Collapse of Weimar," in The Failure of Illiberalism, ed. Fritz Stern (New York: Columbia University Press, 1992), 7, 336; Woods, The Conservative Revolution in the Weimar Republic, 2; Cf. Bruck, G ma y’s T d Emp , 78, 90- 91. 125 Cf. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 13. 126 Ringer, The Decline of the German Mandarins, 87ff.

Page | 38 Leviathan Run Aground: Chapter 1 complementary cultivation of culture and personality, what made humans human – and it symbolized the decline of every value the ancien régime embodied, if not value altogether.127 Thus, although Zivilisation had generated enormous “technical” progress, this progress was substantively empty and inauthentic because it not only did it not have a corresponding progress in spirit and value, it even undermined them. Kultur, to the revolutionary conservatives, was “authentic,” whereas Zivilisation was superficial.

Paralleling the technical progress of Zivilisation, advances in natural science were undermining Christian belief, which had stabilized society and buttressed the political community.128 Frustrated by the spiritual emptiness they perceived in the race to the bottom and the rationalization of society, many revolutionary conservatives sought out secular forms of spirituality.129 All of these fears prompted them to search for ways to radically alter the trajectory of society in the hopes of revitalizing Kultur to preserve their status, way of life, and their material well-being as well as the spiritual value corresponding to those qualities.

Revolutionary conservatives believed Zivilisation brought about the rapid, negative changes causing Germany’s decline. The ‘proletarization’ brought on by advanced capitalism, their defeat in the First World War, and the treaty of Versailles were all symptoms of that decline. Mere formal liberal freedoms, mere materialistic pursuits in the market place, and mere technical knowledge uprooted an entire way of life and drove them toward the lowest common denominator. But above all, proletarization meant the middle classes were not only losing their material well-being, they were losing their distinct status within society.130

Revolutionary conservatives did not merely wax nostalgically for the past, however. They were revolutionary. Insofar as the religious, political, and moral beliefs had been called into question, the goal of the revolutionary conservatives shifted to the discovery and realization of new values worth conserving.131 Revolutionary conservatives “right” reading of Nietzsche, complemented with Sorel by some, oriented them in their search for values and institutions worth conserving and, for those who fought in the war, legitimated their sacrifices.132 They came to see agonistic conflict and struggle as the alternative to “liberal” and sterility. Paradoxically, they theorized, conflict, war, and even death did not enervate individuals and peoples but invigorated

127 Ringer, The Decline of the German Mandarins, 90; Cf. Bruck, G ma y’s T d Emp , 95, 103. 128 Stern, The Politics of Cultural Despair, 244, 277; , The Conservative Revolution (New York: G. P. Putnam's Sons, 1941), 48-49. 129 Here, I follow Weber’s use of the term because I believe he articulated well the sentiment and concerns of a broad segment of society over the increasing specialization and isolation of individuals while at the same time modern science was undermining the possibility for mystery and meaning within their lives. 130 Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 7. 131 Woods, The Conservative Revolution in the Weimar Republic, 72-73. 132 Muller, The Other God That Failed, 19; Rauschning, The Conservative Revolution, 49.

Page | 39 Leviathan Run Aground: Chapter 1 them. They believed warfare ‘awoke’ a people from its bourgeois slumber.133 Conservative beliefs in aestheticization and were a first step in the pursuit of new values.

Revolutionary conservatives’ first goal was to treat the erosion of community.134 They conceived of community by modernizing and nationalizing Greek and Roman ideals. A healthy community was a Volk, united by a transcendental essence or spirit (Geist) that constituted its individual members. This Volk-identity was second nature; it was the source of individual’s creativity, power, and their individuality.135 The Volk was the “authentic” core of its individuals. It was a sort of panacea for all the ills of the Zivilisation. And through this ideal, revolutionary conservatives sought to identify a more meaningful form of democracy than representative democracy. So they neither disputed the value of democracy a priori nor saw themselves as cleverly smuggling in anti-democratic principles. They believed they were completing the democratic revolution. Although this form of democracy would be unrecognizable to most parliamentarians and liberal democrats today, it can be defended as a type of democracy.

Their idea of an “authentic” people grew out of Rousseau’s idea of the volonté générale.136 Revolutionary conservatives understand democracy in terms of what has been called “.” They believed democracy meant representing the people as a unity, rather than as a factionalized plurality. Representation cannot occur mechanically, by merely aggregating individual votes.137 Democracy can only be the will of the Volk, which must be produced organically. Yet, despite similarities with populist or plebiscitary accounts of democracy, there is one decisive difference. Revolutionary conservativism despised and feared the actual people and sought in totalitarian democracy a way to limit mass participation in democracy. The Volk was an ideal of authenticity, dictated by Kultur and aristocratic virtues, not the “cacophony” of individuals’ actual democratic voting. Revolutionary conservatives tended to perceive populist movements of their time, such as Nazism, with aristocratic disdain and saw them as plebian and suffering from the same spiritual emptiness as liberalism and socialism.138

This authoritarian conception of the Volk found institutional expression in the state. Drawing on Hegel, revolutionary conservatives argued the state alone could counteract the atomizing effects of the and liberalism and promote the community of the authentic Volk.139

133 Woods, The Conservative Revolution in the Weimar Republic, 41-46. 134 Woods, The Conservative Revolution in the Weimar Republic, 47. 135 Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, 4. The Volk of the revolutionary conservatives was usually different from that of the Nazis in that their basis was, similar to , in German culture and history rather than pseudo-scientific biological claims. 136 J. L. Talmon, The Myth of the Nation and the Vision of Revolution (Berkeley: University of California Press, 1981), 1, 250-252. 137Cf. Bruck, G ma y’s T d Emp , 115-133; Rauschning, The Conservative Revolution, 34, 86-87. 138 Fritz Stern, The Failure of Illiberalism (New York: Columbia University Press, 1992), 15, 21-23; Woods, The Conservative Revolution in the Weimar Republic, 111-112, 128; Zeev Sternhell, The Birth of Fascist Ideology: From Cultural Rebellion to Political Revolution, trans. David Maisel (Princeton: Princeton University Press, 1994), 254-255. 139 Muller, The Other God That Failed, 20, 61.

Page | 40 Leviathan Run Aground: Chapter 1

Moreover, war and self-sacrifice, at the state’s bequest and on behalf of the Volk, could become meaningful again – la guerre pour la guerre.140 But the state was merely an institution. Some revolutionary conservatives believed it needed a driving force. They found that force in an elite individual or group who could exemplify and represent the values, ideals, and virtues of the Volk and realize them in the actual people by wielding the state.141 Once in power, the “leader” would constitute and represent the actual people and direct them toward the ends specified by the will of the authentic people. Thus, paradoxically, true democracy came to presuppose an exemplary leader or leadership body who could evoke the volonté générale in the masses. Organic democracy was thus linked to something like a Führerprinzip.142 By theorizing democracy as the people’s organic representation by their exemplary political leader, revolutionary conservatives were able to reconcile their conservative beliefs with democratic change.

Schmitt’s state theory will be shown to have important overlaps with revolutionary conservativism. Schmitt was skeptical of “liberal” values, he despised materialism, and he frequently criticized atomizing individualism, which he blamed on liberalism, democracy, and capitalism. Even if he was unfamiliar with Nietzsche’s concept of the “last man” and his lamentations about a meaningless depoliticized world, Schmitt’s work resonates with that anti- bourgeois sentiment. Schmitt also recognized that historical change prevented any serious turning back of the clock. As with many revolutionary conservatives, this recognition led him to search for a state strong enough to deal with 20th century societal changes. Schmitt’s idea of the practice of democracy ends up appearing “totalitarian” in the above sense because he prioritizes the qualitative will of the “authentic” people over the simple aggregate of individual votes. But, as with other revolutionary conservatives, I will show the will of the people has little to do with plebiscitary expression in Schmitt’ account. Instead, despite concessions to the principles of “identity,” he argues that what is needed most for democracy is “representation” of “the

140 Woods, The Conservative Revolution in the Weimar Republic, 47. 141 Woods, The Conservative Revolution in the Weimar Republic, 79. 142 This emphasis on strong, representative authority stemmed from at least five sources. First, revolutionary conservatives believed strong paternalistic authority was necessary to rein in societal corruption and decay. Human nature was not inherently good. Second, the decline of Kultur and the threat of liberalism and socialism, revolutionary conservatives theorized, in quasi-messianic tones, the need for “a single great personality who can provide the [conservative, völkisch] movement with unity and direction” and who would embody both the values of the Volk and the virtues that had been lost. (Woods, The Conservative Revolution in the Weimar Republic, 81.). A third source was from the history of German political institutions. Bismarck’s construction of a strong executive authority, a strong bureaucracy, and weak parliamentary institutions helped condition the German middle classes to distrust parliament as an institution for leadership and positive change (Cf. Rauschning, The Conservative Revolution, 44.). This design drove Germans, in particular the middle classes, to avoid politics altogether (Stern, The Failure of Illiberalism, 23, 200, 205.). Parliament appeared only to select egoistic party interests. Conversely, the Führer could overcome the centripetal effects of mass democracy and liberal atomization (Stern, The Failure of Illiberalism, 15, 21.). Fourth, because the leader stood above parliament and was not merely a bureaucrat, revolutionary conservatives believed he could ensure political institutions did not become self-serving but served the Volk (Cf. Rauschning, The Conservative Revolution, 95-97.). Finally, many saw the value of the authoritarian leader negatively through the outcome of Versailles. Versailles was blamed on, among other things, liberal parliamentarism. These critics believed a strong leader would never have allowed that outcome (Cf. Rauschning, The Conservative Revolution, 118-119.).

Page | 41 Leviathan Run Aground: Chapter 1 authentic people.” And like the revolutionary conservatives, Schmitt hoped to resurrect exemplary political leadership to overcome the deficits of mass democracy – theoretically justifying strong leadership to overcome individualistic democracy and parliamentarism.

Before 1933, Schmitt recognized the danger of Nazism and sought to find ways to prevent their seizure of power.143 But then, like many revolutionary conservatives, Schmitt’s disenchantment with liberalism and democracy and his hopes for the restoration of the German state and political unity overlapped with those of the many Nazis (not to mention other parties), and his opportunism led him to embrace the Nazi party once they were in power. There has a fierce debate over whether he actually shared other Nazi “values,” such as anti-Semitism, or merely paid those values lip service in his efforts to endear himself to the regime. He did have a genuine hope they could be instrumental in realizing his goals and ideals for the revitalization of the German state.144 Like many revolutionary conservatives, Schmitt was so fixated on Weimar’s flaws that after the Nazis took power he did not even think about the practical consequences of his contributions to Nazism. So Schmitt wrote his most despicable work in 1934, a “legal” justification of Hitler’s political of the Night of Long Knives in his “Der Führer schützt das Recht.”145 Coupled with his open anti-Semitism, Schmitt’s early public collaboration went a long way in legitimating Nazism and its insane frenzy.

But by 1936, like so many other revolutionary conservatives, Schmitt had distanced himself from the Nazi party and its practices (it did not hurt that prominent Nazis and Nazi publications were attacking Schmitt publically).146 It had become clear to many, including revolutionary conservatives and Schmitt, that Hitler was not going to deliver the stability or changes they had hoped for. Many believed the Nazis had usurped and perverted their ideal of a Third Reich.147 In the end, the Nazis represented a different form of the same hated materialistic, democratic and populist values for revolutionary conservatives. Schmitt’s relationship with Nazism might be explained in a similar way to how many revolutionary conservatives first embraced and then distanced themselves from the movement and state.

Despite similarities, Schmitt also departed from core revolutionary conservative themes. He did not glorify war or service to the state in the unqualified sense others did. He thought of the First

143 Bendersky, Carl Schmitt: Theorist for the Reich, 129, 146-147, 149, 153, 185. 144 Cf. Stern, The Politics of Cultural Despair, 359. 145 Carl Schmitt, "Der Führer Schützt das Recht," Deutsche Juristen-Zeitung 15, no. 39 (1934). 146 Muller, The Other God That Failed, 391-402; Rauschning, The Conservative Revolution, 146. Schmitt does seem to conform to Muller’s revolutionary conservative typology – First, being overcome by a principled alienation from the liberal, democratic, and capitalistic ‘excesses’ of the welfare state and advocating a total state in defense of the Volk. Second, providing ingenuous support for the Nazis, based on the hope that the Nazis could realize the revolutionary conservative ideal of the total state (that is, a sort of mixture between blind hope and opportunism). Third, disillusionment and disentanglement from the Nazi party soon after it became apparent that they were not only unable to provide the ends sought but also that they were ideologically hostile to the revolutionary conservative ideals. Nonetheless, despite this disenchantment, the revolutionary conservative continued in their service to Nazi institutions and society. 147 Cf. Rauschning, The Conservative Revolution, 198.

Page | 42 Leviathan Run Aground: Chapter 1

World War not as a glorious moment of camaraderie and the chance for the generation of meaning, but as an event that exemplified the twentieth century’s loss of meaning.148 And although Schmitt struggled with 20th century “instrumental rationality,” he was hardly an irrationalist or single-minded critic of the Enlightenment tradition. Moving in a different direction than his contemporaries, he sought to find ways to revive classical “occidental” rationalism, which included key figures from the Enlightenment – even British and French thinkers. As we shall see, his approach to political community and leadership are far closer to classical political theoretical ideals and themes such as than his contemporaries were. Schmitt’s writings reflect his awareness of the limits of even revolutionary conservativism. Despite at times coming close to or even overlapping with that movement, Schmitt will be shown to have been a nevertheless independent thinker.

Conclusion: The Priority of Order

The world Schmitt had grown up in fractured after the war. His state theory was a response to how he understood the problems of his time and the inabilities of his contemporaries to deal with them. Weimar’s intellectual movements all contributed to the formation of his political theory and his own identity. Although Schmitt’s thought is irreducible to these movements, they do provide us with an important means to refine our understanding of him. Without this understanding of his background, how Schmitt responds to and grows out of neo-Kantianism, neo-Hegelianism, Pluralism, and Revolutionary Conservativism, it is very easy to misunderstand what is happening in the foreground of Schmitt’s state theory.

148 Mehring, Carl Schmit, 77.

Page | 43 Leviathan Run Aground: Chapter 2

Quid est Veritas? Quis Judicabit? Political Theology, Disenchantment, and Political Crisis

For it is evident to the meanest capacity that men’s actions are derived from the opinions they have of the good or evil which from those actions redound unto themselves. – Thomas Hobbes, Leviathan

Every movement is based, first of all, on a specific characteristic attitude toward the world; and second, on a specific idea, even if it not always conscious, of an ultimate authority, an absolute center…Metaphysics is something unavoidable, and we cannot escape it by relinquishing our awareness of it. What human beings regard as the ultimate, absolute authority, however, certainly can change, and God can be replaced by mundane and worldly factors. I call this process secularization. – Carl Schmitt Political Romanticism (1924)

The question of the facts and structure of a system always boils down to the question of what conscious or unconscious theology rules over it. One has not understood a system, an epoch, until one has discovered the god or the idol in which it places its faith and trust. – Hugo Ball “Carl Schmitt’s Political Theology” (1924)

Introduction

Carl Schmitt’s state and constitutional theory rests on his philosophical presuppositions, especially his philosophy of history and epistemology. He believes the legitimacy of political institutions is a function, in part, of the ideas and beliefs about the nature of reality those who see them as legitimate hold – consciously or unconsciously. Over time, Schmitt argues, changes in these ideas and beliefs lead to crises in static political institutions. He sees modern political history in particular as a process of change, crisis, and adaptation. The static nature of institutions in the face of change is a major source of their legitimation crises. In the case of Weimar, Schmitt argued that “its present-day constitutional situation is characterized first of all by the fact

Page | 44 Leviathan Run Aground: Chapter 2 that numerous institutions and regulations of the 19th century have continued unchanged, while the current state of things appears to have changed entirely.”1 The Weimar state was designed with 19th century concepts and problems in mind. But 20th century social and political changes were undermining its ability to perform its intended function.

While the next chapter analyzes his diagnosis of those changes and the problems they caused in Weimar, this chapter lays the groundwork for this analysis by examining Schmitt’s philosophy of history and epistemology through his concept political theology. It draws and elaborates on Carlo Galli’s discussion of that concept, focusing especially on the dynamic between Idea and reality and the difficulties of realizing the Idea in reality.2 Galli is also careful to draw out the continuity of this theme throughout Schmitt’s career, beginning with his earliest writings. But it departs from Galli in reducing the role Catholicism, “ontology,” and myth play in Schmitt’s thought.3 Above all, political theology is less of an irrationalist or mystical concept than Galli believes and more deeply entwined with Weber’s disenchantment than he allows.4 I argue political theology is above all a product of Schmitt’s continuation of Weber’s analysis (as Schmitt saw it, anyway) of how legitimacy and authority work politically, how roles that theology once played in shaping these concepts are now being performed by different institutions – albeit ones that still have very important affinities and overlaps with theology. Catholic influences are undoubtedly important for Schmitt’s development of political theology, but their role in his work declined over time. Moreover, Schmitt’s political theology reflects the depth of debts to neo-Kantianism.

Political theology is often understood, as Andrew Arato argues, as “the secularization of monotheistic religious concepts for political theory and practice.”5 Karsten Fischer argues Schmitt was interested in merging politics and religion.6 He also argues Schmitt did not face interfaith conflicts. Yet these two approaches are related by what they miss about political theology. Schmitt himself even argues understanding political theology as merely the

1 Carl Schmitt, "Die Wendung zum Totalen Staat (1931)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923-1939 (Berlin: Dunker & Humblot, 1988), 135. Schmitt makes variations of this claim fairly often. Another example is his citation of Heraclitus’ fragment on change, that one cannot step into the same river twice. Schmitt goes on to argue that one cannot make the same speech or write the same essay twice, and, likewise, the great problems of democracy in the 20th century should not be dealt with and answered using terms from the age of Talleyrand and Louis Philippe. Carl Schmitt, "Vorwort zu Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles (1940)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles (Berlin: Dunker & Humboldt, 1988), 5; Carl Schmitt, "The Dictatorship of the Reich President According to Art 48 of the Reich Constitution (1931)," Constellations 18, no. 3 (2011): 314; Carl Schmitt, "Der Begriff des Politischen; Vorwort Von 1971 Zur Italienischen Ausgabe," in Complexio Oppositorum: über Carl Schmitt, ed. Helmut Quaritsch (Berlin: Dunker & Humblot, 1988), 271. 2 Carlo Galli, La Genealogia della Politica: Carl Schmitt e la Crisi del Pensiero Politico Moderno (Bologna: Il Mulino, 1996), 3ff. 27-30, 37, 53, 80-92, 314-325, 347ff., 523ff., 591ff. 3 Galli, La Genealogia della Politica, 86, 185, 238-240, 256, 768, 804. 4 Galli, La Genealogia della Politica, 98. 5 Andrew Arato, "Political Theology and Populism," Social Research 80, no. 1 (2013): 143; cf. Peter Scott and William T. Cavanaugh, eds., The Blackwell Companion to Political Theology (Malden: Wiley-Blackwell, 2006), 1. 6 Karsten Fischer, "Hobbes, Schmitt, and the Paradox of Religious Liberality," Critical Review of International Social and Political Philosophy 13, no. 2-3 (2010): 410.

Page | 45 Leviathan Run Aground: Chapter 2 secularization of religious concepts is superficial.7 When “theology” is expanded to include atheistic like positivism, communism, and Nazism, it is clear that Weimar was the site of deep “interfaith” conflicts that had little to do with monotheism.8 Theology, for Schmitt, need not involve a god of revealed religion at all (nor “religion” as typically understood at all, for that matter). An error many thinkers make today is forgetting that zealotry and fanaticism are as compatible with secular beliefs as they are with “religion.” In fact, the fanatics of Schmitt’s time were Nazis and Communists; their theology was secular.9

Other common misinterpretations include arguing against Schmitt that belief can somehow be “detheologized” (as John McCormick does)10 – as if “detheologization” were Schmitt’s Achilles Heel. Similarly, Schmitt did not understand political theology as “[the relation] of religious belief to larger societal issues while not confusing the proper autonomy of each,” which is how Scott and Cavanaugh define it in their 2006 Blackwell Companion to Political Theology.11 As I discuss below and alluded to in the last chapter, Schmitt argues all knowledge and any belief about the world necessarily rest on necessary presuppositions. To deny their necessity is naïve. And, Schmitt believed, positivism and other belief systems were myopic to believe it could get around this through processes like “detheologization” or neat compartmentalization. To argue that belief could be “detheologized” misses the point of Schmitt’s critique.

Finally, political theology has been read in pseudo-religious terms that allow his readers – through esoteric concepts like katechon and the miracle – to portray Schmitt as a sort of mystical, Catholic thinker. Heinrich Meier ventures deep into this realm and attempts to turn concepts of katechon and miracle from analogies for explaining concepts of jurisprudence into mystical truths or revelations about Schmitt’s faith-based politics.12 Mehring has convincingly argued that

7 Carl Schmitt, The Concept of the Political [Der Begriff des Politischen], trans. George Schwab (Chicago: The University of Chicago Press, 1996), 42. 8 cf. Carl Schmitt, "Strong State and Sound Economy," in Carl Schmitt and Authoritarian Liberalism, ed. Renato Cristi (Cardiff: University of Wales Press, 1932), 219; Carl Schmitt, Der Hüter der Verfassung, 4th ed. (Berlin: Dunker & Humblot GmbH, 1931), 83-90; Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004), 87ff. 9 In this context, an overlooked discussion in English is the relationship between Schmitt and Voegelin. , Die Politischen Religionen (1938) (München: Neuauflage, 1996); cf. Thierry Gontier, "From “Political Theology” to “Political Religion”: Eric Voegelin and Carl Schmitt," The Review of Politics 75(2013).. A deep comparative analysis of their approaches in English would be invaluable. Another of political theology’s overlooked relationships is to the “sociology of knowledge.” Schmitt and Mannheim were in regular contact and Schmitt may have been trying to impress Mannheim with his own research. cf. Karl Mannheim, Ideology and Utopia: An Introduction to the Sociology of Knowledge (New York: Harcourt, Brace and Company, 1951), 3, 36ff. 10 John P. McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology (Cambridge: Cambridge University Press, 1997), 99, cf. 75ff. 99ff. 11 Scott and Cavanaugh, The Blackwell Companion to Political Theology, 2. 12 Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy, trans. Marcus Brainard (Chicago: The University of Chicago Press, 1998).

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Schmitt’s worldview can hardly be characterized by Catholicism.13 Carl Schmitt’s juridical and political beliefs are instead best characterized by his interpretation of occidental rationalism – the tradition of thought that includes medieval philosophy but lies closer to than Augustine.

As long as thinkers continue to cling to these interpretations of Schmitt’s political theology, how very confusing it will be to read those passages in which Schmitt identifies the “political theology” of the Restaurationszeit14 with Weber’s critique of Stammler’s Rechtsphilosophie15 or Laski’s pluralism as the political theological expression of William James’ philosophy.16 Schmitt clearly understood political theology as – above all – an epistemological problem.17 From an epistemological perspective, the root of the problem is identical: the dilemma of the hiatus irrationalis, the indeterminate relationship of concrete reality to ideas and values. Pace Fischer,18 Schmitt is well aware of Hobbes agnosticism and, despite committing to the Catholic faith, is a sober enough thinker to recognize what faith actually means. Scheuerman is right when he draws our attention to how the problem of epistemological indeterminacy underscores Schmitt’s work, even thought he omits discussion of how Schmitt simply borrows this problematization from the neo-Kantians.19

A close reading of his work reveals Schmitt uses the terms “theology,” “metaphysics,” and “Idea” in a technical way. Theology, to Schmitt, is not merely religious conviction or faith.20 When Schmitt uses the term theology, he understands it in its classic sense: the study of being qua being, conceiving of “god” in the broadest possible sense as a first cause.21 While this understanding includes revealed religion, it is not limited to it. In this way, theology is not so different from metaphysics. And Schmitt in fact uses metaphysics and theology

13 Cf. Reinhard Mehring, "Ein „Katholischer Laie Deutscher - und Staatsangehörigkeit“? Carl Schmitts Konfession," [A "Catholic Layman of German Nationality and Citizenship"? Carl Schmitt's Confession.] Revista de Ciencias Sociales Supl. Extroaordinario(2012). 14 Carl Schmitt, Politische Theologie (: Duncker & Humblot, 1933), 55. Clearly, both from the implication of the German and the authors Schmitt goes on to discuss, restoration here is not the English restoration but the 19th century restoration and the political theology Schmitt has in mind is that of the Catholic Counterrevolutionaries. 15 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [Politische Theologie], trans. George Schwab (Chicago: University of Chicago Press, 2005), 42; cf. Frank Hertweck, Dimitrios Kisoudis, and Gerd Giesler, eds., "Solange Das Imperium Da Ist": Carl Schmitt im Gespräch mit Klaus Figge und Dieter Groh 1971 (Berlin: Duncker & Humblot, 2010), 48, 124. Stammler has been considered the founder of neo-Kantian legal philosophy. Briefly, Weber criticizes Stammler for several methodological errors in his legal philosophy: Stammler commits the same error Marxism does in attempting to reduce the explanation of all phenomena to jurisprudence (replacing law for economics); Stammler assumes there is a fundamental unity of social phenomena that allows for some norm of knowledge; Stammler violates the fact/value divide in linking Gesetz to Recht “scientifically.” 16 Carl Schmitt, "Ethic of State and Pluralistic State," in The Challenge of Carl Schmitt, ed. (New York: Verso, 1999), 197. 17 Carl Schmitt, Political Theology II, trans. Hoelzl & Ward (New York: Polity, 2008), 42. 18 Fischer, "Hobbes, Schmitt, and the Paradox of Religious Liberality," 409ff. 19 William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 17. 20 Cf. Mehring, "Ein „Katholischer Laie Deutscher Volks- und Staatsangehörigkeit“? Carl Schmitts Konfession." 21 Carl Schmitt, Political Romanticism [Politische Romantik], trans. Guy Oakes (New Brunswick: Transaction Publishers, 2011), 64; Schmitt, Political Theology II, 112; cf. Mehring, "Ein „Katholischer Laie Deutscher Volks- und Staatsangehörigkeit“? Carl Schmitts Konfession."

Page | 47 Leviathan Run Aground: Chapter 2 interchangeably.22 He describes secularization in terms of metaphysics.23 Alternatively, Schmitt sometimes describes non-religious belief systems such as romanticism, Marxism, pluralism, and juridical positivism, as theologies – they just happen to be atheistic. Atheism is still theology for Schmitt. He alludes to Marxism as a sort of mystical religion.24 Following Schmitt, this chapter uses the terms “theology,” “metaphysics,” “Idea,” and weltanschauung interchangeably.25

This chapter is divided into two broad sections. The first engages with Schmitt’s concept political theology, tracing how his understanding of it evolves. It ties political theology into his recurring question of quis judicabit? (who decides?), which has received scant attention even though it was a central axis in his work on both the state and political theology. The second section shows how Schmitt sees the problem of political theology playing out in history. Schmitt argued history is a process of changing epochs, each defined by its predominant metaphysical “Idea.” Epochs enter into crises of legitimacy, undergo paradigm shifts, and produce new Ideas. This process, he argues, helps to explain political change: because of the link between “theology” and politics, metaphysical change has corresponding effects in political institutions. Thus, political theology, for Schmitt, describes both a problem of indeterminacy of legitimate ideas and institutions and how this indeterminacy leads to change and crisis over time in political and legal institutions. This process of historical change is the basis for Schmitt’s analysis of Weimar’s crisis of authority, which the next chapter takes up.

1. The Political and the Persistence of ‘Theology’

As discussed in the last chapter, neo-Kantian philosophy was the preeminent philosophy during Schmitt’s formative years. Although he is extremely critical of aspects of neo-Kantian legal and political thought, most notably that of Hans Kelsen, Schmitt had strong intellectual ties to neo- Kantian philosophy. Early on, Schmitt was deeply interested in Vaihinger. And later he would study under and adopt many of the problems Max Weber did, including his analysis of the practical implications of epistemological constraints on human institutions, like law and politics. Although Schmitt was no neo-Kantian, his background in neo-Kantianism imprinted his beliefs and contributed to his “epistemological” theory of political theology.26

22 Cf.Mehring, "Ein „Katholischer Laie Deutscher Volks- und Staatsangehörigkeit“? Carl Schmitts Konfession." 23 Schmitt, Political Romanticism, 18; Schmitt, Political Theology, 36-52. 24 Schmitt, Political Romanticism, 64. similarly describes Marxism in these terms, outlining even more explicitly than Schmitt its political-theological implications. See in particular Bertrand Russell, The History of (New York: Simon & Schuster, 1972), 364. 25 Schmitt sometimes uses “Idea” in the technical sense of a Platonic Idea. See Carl Schmitt, Roman Catholicism and Political Form [Römischer Katholizismus und politische Form], trans. G.L. Ulmen (London: Greenwood Press, 1996), 17; Schmitt, Political Theology II, 120-125; Cf. Galli, La Genealogia della Politica, 3, 27-28. I have capitalized Idea when using this word in this specific Platonic sense. 26 Could it be that Leo Strauss was actually pointing at this part of Schmitt’s intellectual debt when he suggested Schmitt had not escaped the ‘horizon’ of liberalism and modernity in his analysis of The Concept of the Political.

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Scheuerman rightly observed how Schmitt’s early juridical writings addressing the problem of the indeterminacy of law have been “repeatedly ignored,” despite being among his pivotal contributions.27 Indeed, anyone seeking to understand Schmitt’s thought cannot ignore the relationship between his early neo-Kantianism and his subsequent thought in Weimar. But Scheuerman’s scope is too narrow. He does not discuss the of Schmitt’s early writings on legal indeterminacy and his arguments not so original when their context is kept in mind. As such, his work is not an aberration but rather an application of the predominant philosophical position of the time.

To demonstrate political theology’s relationship to neo-Kantianism and how Schmitt develops it over time, I have chosen four periods of Schmitt’s life, organized around exemplary texts. Schmitt first develops this problem in recognizable neo-Kantian terms, with no reference to political theology at all, for example in his 1914 Der Wert des Staates and die Bedeutung des Einzelnen. Following the First World War, his writings crystallized into the familiar form of his 1922 Political Theology. Although he is fairly consistent in using the terminology of Political Theology throughout the interwar period (such as in his 1929 “The Age of Neutralizations and Depoliticizations”), Schmitt sheds differently light on the same idea only one year after Political Theology came out. In his 1923 Roman Catholicism and Political Form, Schmitt discusses this concept in terms of the problematic relationship between ‘Ideas’ and concrete reality, which I analyze as the third period. The fourth and final period begins after the Second World War. While his engagement with political theology remains bounded by the language of Political Theology, Schmitt has broadened its meaning, in particular integrating Hobbes’ state theory into it through the question “quis judicabit?”28 a. Schmitt’s Early Writings: The Hiatus of Neo-Kantian Epistemology

To briefly recap, neo-Kantians aimed at revitalizing philosophy by insisting on the fact/value distinction and the hiatus irrationalis between phenomena and noumena in light of the successes of positivism and modern scientific method. But instead of metaphysically, they conceived of it epistemologically. For the neo-Kantians, the hiatus meant values and the thing-in-itself were limiting concepts or “regulatory Ideas,” which allowed for the evaluation of phenomena. Vaihinger, in particular, argued that, because of this epistemological barrier, regulative Ideas could not be validated. Instead, they were akin to faith. Individuals adopted one Idea or another and behaved ‘as if’ they existed and provided real normative guidance and structure to their lives. But, more importantly, individuals must behave ‘as if’ some Idea exists, as it is only through

27 Scheuerman, Carl Schmitt, 17-18. With the exception of Scheuerman and, to a more limited extent, Robert Howse (Robert Howse, "From Legitimacy to Dictatorship - and Back Again. Leo Strauss's Critique of the Anti- Liberalism of Carl Schmitt," in Law as Pol t s: Ca l S m tt’s C t qu of L al sm, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 61-63.), this is has been totally overlooked, in fact. 28 Although he introduced the concept quis judicabit? in early texts, such as “Zu Friedrich Meineckes Idee der Staatsräson” (1926) and Constitutional Theory (1928), it is only fully developed in this late period, such as his 1963 “Hinweise” to The Concept of the Political, “Die vollendete Reformation” (1965), and Political Theology II (1970).

Page | 49 Leviathan Run Aground: Chapter 2 filtering phenomena with regulative Ideas that the world can be perceived as both ethically and logically meaningful.

Schmitt summarizes his 1912 Gesetz und Urteil as a work dealing with the juridical problem of “gaps” [Lücken] in the law.29 Reaching back to his earlier Über Schuld und Schuldarten, Schmitt argues that whether and how the law applies to a concrete case is indeterminate, that we cannot know the intent of the original legislator perfectly, and a judicial act bridges this gap despite the lack of guidelines on how exactly to do so.30 Norms (Recht) and empirical reality have no determinate relationship.31 He argues there is an unbridgeable hiatus between them and this creates a logical problem in the application of norms.

Yet he does not believe this “bridge” is the product of an arbitrary judicial act. In applying the law, Schmitt believes judges do aim at creating a coherent, non-arbitrary, and functional system of law – just not because they merely execute the law but because of how they perceive themselves within a socialized practice. The legitimacy of a judgment comes about when judges induce an idealized judge from their peers’ behavior and conform their application of the law to their belief in how that idealization would apply it.32 In a world where norms and facts are severed by a hiatus, Schmitt sees juristic fictions induced from actual experience as playing a critical role in determining actual human behavior and institutions. Judicial practice is structured by regulative ideas that judges naturally conform to, behaving “as if” they were real “rails” guiding their decisions. In these cases, Schmitt argues, the regulative Idea imagined by the judge guides his or her actual determinations on how to bridge these gaps.33 His point is that, although there is a hiatus between juridical norms and empirical reality, it does not result in arbitrary decision-making and a chaotic juridical world.

Schmitt continues to develop this idea in his 1914 Der Wert des Staates. This book seems to be Schmitt’s first deeply political work. Summarizing it in Vaihinger’s Kant-Studien, he describes its central thesis as,

The state is the idea according to the function of law [Der Staat ist der Idee nach Funktion des Rechts]. It is the only legal subject, in a specific sense, the only thing that is through the law immediately authorized and responsible.

The law [Recht] cannot be derived from power [Macht] or any other mere fact [Faktum], neither can it be derived from the state merely because it is a factical complex of power. Law [Recht] does not sit in the state, the state sits within the law. But the state is the sole

29 Carl Schmitt, "Selbstanzeige des Buches ‚Gesetz und Urteil‘," Kant-Studien 18(1913): 165. 30 Reinhard Mehring, Carl Schmitt: Aufstieg und Fall (München: C.H. Beck, 2009), 39. 31 Galli, La Genealogia della Politica, 314. 32 Schmitt, "Selbstanzeige des Buches ‚Gesetz und Urteil‘," 165; Scheuerman, Carl Schmitt, 22-23. 33 Mehring, Carl Schmit, 44-45; Scheuerman, Carl Schmitt, 20. Schmitt adopts this argument again – but with the state as the ultimate “as if” force in judges’ deliberations, in Der Wert des Staates. Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen [The Value of the State and the Meaning of the Individual] (Berlin: Dunker & Humboldt GmbH, 2004), 27.

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executor of the law, it realizes the regnum juris [] in the world of reality. Therefore it is the highest (not merely the strongest) power, but in any case a power.

The great opposition that moves all human history is not between the state and individual, but the state (-power) and right [Recht].34

This early book concerns political theology through its detailed treatment of the relationship between facts and norms. He summarizes his argument, writing, “between every concretion and every abstraction lies an insurmountable gap, which cannot be closed.”35 Throughout, he repeatedly argues there is a hiatus between facts and norms, Macht and Recht.36 Tellingly, at one point Schmitt invokes Kant’s antinomies of reason to ground his argument.37 As in Gesetz und Urteil, the juridical effect of this hiatus is a fundamental and insurmountable indeterminacy in how Recht relates to facts, in particular how Recht and Macht interact. Schmitt argues neither is reducible to the other and both are independent. But, he goes on, they do still interact. Recht can affect Macht. Macht can limit whether and how Recht is realized concretely. But they stand in a hierarchy: facts may be affected by values but values ‘themselves’ exist independently from facts. Recht thus has priority over any fact, including Macht. In a curious moment of Idealism, Schmitt even argues that only transcendent entities deserve to be conceived of as “being” (in the Platonic sense).38 He seems to argue that “accidental” qualities of the world are normatively irrelevant.39

But Recht and other “true” beings are not without their own problems. He argues Recht is “an abstract idea, which is not derived from facts and cannot affect them, reality can only be subject of the will directed at the “realization” of right. The problem consists in relating the two realms to one another, determining the point from which – while maintaining the primacy of right [Recht] over power [Macht] – an influence in terms of legal norms is effected on being [Sein].”40 Schmitt argues that Recht cannot realize itself. It requires actual a factical will to become real.

And, taking up another argument from neo-Kantianism, Schmitt argues human psychology is deeply affected by Recht: humans are compelled to act on ideas of “right,” to realize that order of Recht in the world.41 Yet Individuals can neither be certain of the validity of a specific regulative Idea nor be certain of how to apply that particular Idea in reality. Through this uncertainty,

34 Carl Schmitt, "Selbstanzeige des Buches ‚Der Wert des Staates und die Bedeutung des Einzelnen‘," Kant-Studien 19(1914): 529. 35 Schmitt, Der Wert des Staates, 80. “Zwischen jedem Konkretum und jedem Abstraktum liegt eine unüberwindliche Kluft, die durch keinen allmählichen Übergang geschlossen wird.” 36 Schmitt, Der Wert des Staates, 10, 11, 16 26-27, 35, 36, 39, 44, 46, 50-60, 66, 72, 76, 79-84, 88-89, 98, 100, 106. 37 Schmitt, Der Wert des Staates, 27. 38 Schmitt, Der Wert des Staates, 88. 39 Schmitt, Der Wert des Staates, 89, 105. 40 Schmitt, Der Wert des Staates, 42-43. 41 Schmitt, Der Wert des Staates, 35ff., 107; cf. Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle, trans. Michael Hoelzl and Graham Ward (London: Polity, 2013), 17.

Page | 51 Leviathan Run Aground: Chapter 2 different interpretations over right arise.42 Differences and contradictions among them lead to conflict. Individual wills attempting to realizing different ideas of Recht, all indeterminate, has the potential to fragment society and lead to chaos and violence.43 Thus, Schmitt thinks that individuals without any definitive framework to determine what “right” actually means will eventually conflict violently precisely because the pull toward “good” and “evil” is so strong.

To address conflicts arising out of this indeterminacy, Schmitt argues some institution above individuals can determine Recht in an authoritative way, thereby coordinating and directing their behavior and minimizing frictions. Ideally, this institution would be able to decide authoritatively on the nature of Recht but would not merely impose it and dominate individual behavior. Schmitt argues that this institution can only be the state.44 He unfortunately does not pursue any further this discussion of how the state can determine Recht without imposing it here. Schmitt writes the meaning of the state is “to realize right [Recht] in the world…the state is the midpoint in the series: right [Recht], state, individual.”45 Recht is pure normative valuation. The state exists in the world of facts, but occupies a unique position in that it has no physical existence. It is capable of enforcing the “conceptual world [Gedankenwelt]” of Recht on phenomena. Thus, Schmitt argues, the state mediates between values and facts. The state is a junction between one “world” and another, so to speak. Recht as pure concept turns into Recht as a phenomenon that causally affects the world. He goes on to argue that “the state is the legal entity [Rechtsgebilde], whose meaning consists solely in the task of realizing right [Recht], bringing about a condition [Zustand] in the external world, which as far as possible corresponds to the specifications that can be deduced from legal concepts [Rechtsgedanken] for the behavior of individuals and the institution [Einrichtung] of the outer world.”46 Invoking Hegel, Schmitt argues the sovereign will bridges the hiatus between facts and norms by actualizing one form of Recht juridically.47

Implicitly criticizing contractarian arguments of modern political theory, Schmitt argues that the state, by providing the possibility for Recht in the world at all, constructs its constituents – rather than the other way around.48 Because the state stands at the junction of facts and norms, it can overcome normative indeterminacy and provide individuals with a clear political and juridical order.49 Without the state providing a regulative Idea of Recht, Schmitt believes individuals could not inhabit a meaningful and rationally ordered world.

42 G. L. Ulmen, "The Sociology of the State: Carl Schmitt and Max Weber," State, Culture, and Society 1, no. 2 (1985): 11. 43 Mehring, Carl Schmit, 62. 44 Schmitt, Der Wert des Staates, 50; cf. Stefano Pietropaoli, Schmitt (Roma: Carocci Editore S.p.A., 2012), 21; Scheuerman, Carl Schmitt, 26. 45 Schmitt, Der Wert des Staates, 10. 46 Schmitt, Der Wert des Staates, 56 (his emphasis); Cf. Galli, La Genealogia della Politica, 321; Mehring, Carl Schmit, 63. 47 Schmitt, Der Wert des Staates, 81. 48 Schmitt, Der Wert des Staates, 93. 49 Mehring, Carl Schmit, 61, 63.

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But, Schmitt goes to great lengths to emphasize the state’s actualization of Recht is not mere positivistic domination – that is, the state does not use its power sophistically to turn its arbitrary rule into “Recht.”50 He argues power [Gewalt] cannot elevate itself into a legitimate authority [Berechtigung].51 He argues the essence of the state is defined by and created by Recht.52 The unity of the state derives from the unity of Recht, which is itself derivative of some regulative Idea.53 Similarly, legality, supplied by the state, can only arise out of the authority Recht provides.54 For Schmitt, the state is a concrete image of law, whose meaning consists exclusively in the realization of Recht – only through the state does Recht become positive, Gesetz.55 Arguing against the Marburg neo-Kantians Stammler and Cohen, Schmitt declares the Rechtsstaat demands substantive legitimacy going beyond mere legality. He writes the legitimacy of the state hinges on the degree to which it actually approximates the idea of Recht.56 He argues Recht constitutes the state and provides its end or telos. Citing Augustine’s Civitas Dei, he says “Recht is for the state… origo, informatio, beatitudo.”57 Clearly, Schmitt’s ultimate goal is to ground his state theory on some element of objective reason and to reject positivistic theories of the law. However, it is neither clear here how strong objective reason should be nor what its precise content is. Nor is it clear here how this relationship between Recht and Macht Schmitt describes can be guaranteed. Despite his insistence otherwise, it is not at all clear in this text how the state does not merely dominate its constituency with its particular interpretation of Recht. Nevertheless, while he does not satisfactorily explain his arguments here, Schmitt does go to great lengths to dispute views like positivism: “Recht creates the state; Recht precedes it.”58

Der Wert des Staates thus appears to continue Schmitt’s arguments from Gesetz und Urteil: the judge’s role has been assumed by the state but its behavior is similar. The state, like the earlier judge, mediates facts and norms, solving legal indeterminacy by treating fictions “as if” they were facts – making them real and no longer fictitious in a way.59 Thus, this potential problem of indeterminacy is overcome by transcendent legal and political institutions that allow their constituents to go through their lives “as if” the world has been definitely ordered – even if we

50 Schmitt, Der Wert des Staates, 23. 51 Schmitt, Der Wert des Staates, 52. 52 Schmitt, Der Wert des Staates, 50. 53 Schmitt, Der Wert des Staates, 53, 63; Cf. Galli, La Genealogia della Politica, 319-320. 54 Schmitt, Der Wert des Staates, 58. 55 Mehring, Carl Schmit, 62. 56 Mehring, Carl Schmit, 61. 57 Schmitt, Der Wert des Staates, 57. Literally, this is “origin, enlightenment, felicity.” The passage cited reads “Hence comes the origin, the enlightenment, and the felicity of the Holy City constituted by the holy angels on high. If we ask whence it arises, God founded it; if whence comes its wisdom, it receives light from God; if whence comes its bliss, it rejoices in God. It receives its mode of being by subsisting in God, its enlightenment by beholding him, its joy from cleaving to him. It exists; it sees; it loves. It is strong with God's eternity; it shines with God's truth; it rejoices in God's goodness.” Civitas Dei II 11 c. 24. 58 Schmitt, Der Wert des Staates, 46. 59 Mehring, Carl Schmit, 59; Galli, La Genealogia della Politica, 316.

Page | 53 Leviathan Run Aground: Chapter 2 really do not stand on any solid ground. Schmitt sees the relationship between the state’s efforts to realize an abstract normative order as the driving force of human history.60 b. Political Theology: Recht and the Sovereign Auctoritatis Interpositio

Reflecting on Political Theology toward the end of his career in 1970, Schmitt described his 1922 book as being primarily concerned with epistemology and the history of ideas.61 The current problems of interreligious violence and of the tensions between liberalism and religion have wallpapered over Schmitt’s deeper philosophical concerns. Nevertheless, why he considers it primarily an epistemological work is an important question for understanding Political Theology. The beginning of the answer comes from its third chapter, also titled “Political Theology,” where Schmitt writes “the metaphysical image that a definite epoch forges of the world has the same structure as what the world immediately understands to be appropriate as a form of its political organization.”62

The original three chapters of Political Theology63 raise Schmitt’s epistemological problem through the lens of the sociology of the concept of sovereignty. In this part of the book, Schmitt again raises questions regarding juridical indeterminacy. And although Schmitt explicitly uses Cortés only in the final fourth chapter, Political Theology as a whole resonates with his influence. A brief outline of Cortés’ thought thus provides crucial context to Schmitt’s arguments here.

Cortés argues that how one understands the nature and meaning of the world is determined ultimately by what he calls “faith.” In other words, he believes one’s theological beliefs are the foundation for how one perceives and organizes facts. Cortés argues theology renders the cosmos intelligible and meaningful by providing its foundational presuppositions (by appealing to some non-human source, such as reason or god, to solve a problem of infinite regression).64 Moreover, he thinks that human knowledge rests on presuppositions ordering reality.65 Cortés believes that all worldviews (which he calls “civilizations”) ultimately rest on foundational theological presuppositions.66 And these foundational assumptions ground all other knowledge. This explains why he opens his masterpiece with a chapter entitled “In every great political question

60 Mehring, Carl Schmit, 65. 61 Schmitt, Political Theology II, 42. 62 Schmitt, Political Theology, 46. 63 The fourth chapter, which has a substantially different tone and character than the first three, was added when Schmitt decided to modify and publish his contribution to an Erinnungsgabe for Max Weber. Reinhard Mehring notes that the distinction between the first three chapters and the fourth is one of historical “description” versus political “actualization.” Mehring, Carl Schmit, 124. 64 Juan Donoso Cortés, Selected Works of Juan Donoso Cortés, trans. Jeffrey P. Johnson (Connecticut: Greenwood Press, 2000), 96, 104; Cf. Jeffrey P. Johnson, "Introduction to Selected Works of Juan Donoso Cortés," in Selected Works of Juan Donoso Cortés, ed. Jeffrey P. Johnson (Connecticut: Greenwood Press, 2000), 4-5. 65 Juan Donoso Cortés, Essay on Catholicism, Liberalism, and Socialism [Ensayo sobre Catholicismo, Liberalismo, y Socialismo], trans. Unknown (Philadelphia: J.B. Lippincott, 1862), 345. 66 Cortés, Selected Works of Juan Donoso Cortés, 104; Cf. Johnson, "Introduction to Selected Works of Juan Donoso Cortés," 29. For Cortés, atheism is no less theological than Catholicism.

Page | 54 Leviathan Run Aground: Chapter 2 is always involved a great question of theology.”67 Indeed, Cortés argues that theological belief determines political reality. One’s assumptions, or ‘faith’, about the world characterize how one acts within it. And faith, for Cortés, emerges ex nihilo; there can be no rational or demonstrable basis for faith – it is the bedrock one reaches as one searches for answers.68 Faith is dogma.

Catholic dogma is, for Cortés, antithetical to “liberalism.” Catholicism’s diametrically opposes Enlightenment ideals of free thought. But Cortés argues that what is at stake is not a struggle of between freedom and dogma but two opposed dogmas. Enlightenment thinkers do not escape dogma, they just mask it. And because he thinks no worldview can escape making presuppositions: liberalism is a theology and has its dogma. So the opposition between liberalism and Catholicism is between an atheistic materialistic dogma and a theistic transcendental dogma.

By appropriating from Cortés, Schmitt “catholicizes” his neo-Kantian roots. The concept of “political theology” is the outcome. Given the relationship between Schmitt and Cortés, a reasonable preliminary conclusion is that Schmitt’s “political theology” means political institutions are ultimately derivative of theological worldviews. Here too Schmitt focuses on the indeterminate relationship between an abstract normative system and its realization in a concrete juridical order.69 As before, Schmitt argues Recht cannot self-realize.70 And, although Schmitt argues there is a hiatus between facts and values,71 he believes neo-Kantians like Kelsen are wrong to halt at that division and focus only on treating law as a positive command. Although the hiatus cannot be bridged logically, he argues it can be bridged in practice. But instead of placing the onus of mediation on the state as he did before, he argues this time the bridge is someone or something that can decide authoritatively: the sovereign.72 Schmitt defines sovereignty through the exception, which is famously defined as when a concrete situation cannot be neatly subsumed under a law and requires an authority to decide on both whether it falls under some preexisting law and, if not, how to address it in line with the existing juridical order.73 The solution to moments of indeterminacy is the sovereign decision, which clarifies this indeterminate relationship through an act. Galli notes how decision literally means the ‘cutting off’ (de-cision) of alternative possibilities, in the same way a theological authority clarifies the meaning of dogma.74 Schmitt’s point, it seems, is that the only way to overcome the indeterminacy is when a singular, unitary agent capable of realizing that Idea authoritatively decides and commits to a decision.

67 Cortés, Essay on Catholicism, Liberalism, and Socialism, 9. “De cómo en toda gran cuestión política va envuelta siempre una gran cuestión teológica.” 68 Cf. Johnson, "Introduction to Selected Works of Juan Donoso Cortés," 24. 69 Schmitt, Political Theology, 10. 70 Schmitt, Political Theology, 21, 28. 71 Schmitt, Political Theology, 18, 28. 72 Schmitt, Political Theology, 31. 73 Schmitt, Political Theology, 6. 74 Galli, La Genealogia della Politica, 258.

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Schmitt criticizes Kelsen for transferring the sovereign decision democratically to every individual, which is, for him, simply a return to the indeterminacy of the state of nature – exactly the insecurity we try to escape by creating the state. A democratically pluralized decision, for Schmitt, undermines legal order. Moreover, he believes no order can be normatively scrutinized until a sovereign has first implemented it.75 A sovereign decision creates an island of stability in a sea of indeterminacy and ethical irrationality.

Yet, as before, Schmitt does not think sovereignty is merely the exercise of power. In attempting to navigate this hiatus, Schmitt looks to a third way: authority. Authority, rather than power or norms bridges concrete reality and order (or form76) according to some Idea.77 A legitimate sovereign must have the auctoritatis interpositio (authority to insert).78 The authority to insert this particular Idea comes from the sovereign’s accurate representation of that Idea. 79 Schmitt often quotes Hobbes’ maxim non veritas facit legem. In doing so, he ties Hobbes’ nominalism80 into his analysis of the hiatus. An important early occurrence comes in Political Theology.81 In the context of auctoritatis interpositio, his repeated use of Hobbes’ maxim is meant to remind the reader that juridical order is determined most of all by the fixed meaning of language and concepts.82 Veritas alone, no matter how true, cannot produce political order. It is imperative to have the meaning of definitions fixed for activities and concepts like “social contracting” to have any practical effect. Schmitt, like Hobbes, concludes that “What matters most for the reality of legal life is who decides” – that is, who defines the terms of jurisprudence and realizes them concretely.83

The important question of what authority is and where it comes from is not clearly addressed in Political Theology. Schmitt seems to distinguish between “exceptions” to an order and the total

75 Schmitt, Political Theology, 14-15. 76 Schmitt sometimes uses medieval concepts to describe this relationship (a language that is more apparent in his 1923 Roman Catholicism and Political Form). He says that form is governed by the Idea, by the effect thought has on reality, but it is through form that the Idea is realized in the world. Schmitt, Political Theology, 28. 77 Schmitt, Political Theology, 32. 78 Schmitt, Political Theology, 31. 79 This begs the questions of ‘how is some human authority to interpret comes about in the first place (from where does authority derive)?’ which is dealt with in the second half of this chapter. 80 Carl Schmitt, "Die vollendete Reformation," Der Staat (1963): 53; Cf. David Johnston, The of Leviatian (Princeton: Princeton University Press, 1989), 47-53. 81 Schmitt, Political Theology, 33. The Original Latin reads, “In Civitate constituta, Legum Naturae Interpretatio non a Doctoribus & Scriptoribus Moralis Philosophiae dependet, sed ab Aucthoritate Civitatis. Doctrinae quidem verae effe possunt; sed Authoritas, non Veritas facit Legem” (my emphasis). This corresponds to the first two sentences of Chapter 26.22 in English: “The interpretation of the laws of nature, in a commonwealth, dependeth not on the books of moral philosophy. The authority of writers, without the authority of the commonwealth, maketh not their opinions law, be they never so true.” Thomas Hobbes, Leviathan (Indianapolis: Hackett Publishing Company, 1994), 180; cf. Galli, La Genealogia della Politica, 431. 82 Schmitt, Political Theology, 32. 83 Schmitt, Political Theology, 34.

Page | 56 Leviathan Run Aground: Chapter 2 absence of order – what Renato Cristi has called “hard” and “soft” decisions.84 The sovereign decision to realize a particular order comes ex nihilo. But it is in a way a function of the predominant metaphysical image of the world, most consistent with a political community’s existential identity.85 That is, something beyond the control of the sovereign and thus alluding to the fact, which Hobbes does not address, that sovereigns can lose their authority for reasons other than not providing protection and simply bridging the hiatus through its power. The “soft” decision on how to concretize an order is something that earlier Schmitt allotted to even regular judges. It is unclear here how Schmitt understands it.

The erosion of authority bears on how Schmitt understands this epistemological hiatus. He argues that an epoch’s dominant metaphysical ‘image’ or Weltanschauung affects how phenomena are perceived: a particular Weltanschauung is a social product, reflecting a society’s conditions for metaphysical or theological belief and legitimacy.86 He begins by discussing the impact of the “deistic” Idea on juridical reality. The problem, Schmitt argues, is that deistic explanations of political form are misleading: the state actually makes exceptional interventions “everywhere” – except now they appear to be acts of a deus ex machina because they cannot be explained juridically.87 A sovereign act thus appears to be “exceptional” or “miraculous” only because one lacks a conceptual basis to explain it.88 That is, because a phenomenon does not fit one’s rational scheme of the world, it can only be classified as inexplicable and miraculous. But, Schmitt argues, this is a problem of idealization, not magic: the state is not actually miraculous when it intervenes in society, it merely appears to be so because it is now theorized to be a closed juridical order. This argument brings us full circle. It echoes neo-Kantian arguments about how the mind determines what aspects of ‘the manifold,’ which is actually infinite and incapable of being reproduced, are salient for the understanding and thus falsify the world to make it representable and understandable at all. Political Theology, then, is ultimately about how metaphysical belief structures understanding of reality and what is normal or legitimate. c. Political Theology Reformulated? Roman Catholicism and Political Form

Published one year after Political Theology, Roman Catholicism and Political Form (1923) may be the high tide of Schmitt’s Catholicism. Yet, although its language differs from Political Theology, Schmitt’s goal remains largely the same. He focuses on the relationship between norms and concrete political order or form. Schmitt’s main concern is to contrast the Roman and its Weltanschauung with “economic-technical” thinking. Yet, despite its Catholic appearance, this contrast is more about the distinction between Wertrationalität and

84 Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998), 162. 85 Schmitt, Political Theology, 13, 46. 86 Schmitt, Political Theology, 46. Schmitt would credit his own weltanschauung for his ability to perceive these regular interventions by the state into the otherwise mechanical and automated processes of law and economy. 87 Schmitt, Political Theology, 38. 88 Schmitt, Political Theology, 36-37; , Theological-Political Treatise, trans. Samuel Shirley (Indianapolis: Hackett Publishing Company, Inc., 2001), 73-75.

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Zweckrationalität. Ulmen, Galli, and McCormick have all pointed out that Schmitt’s title is meant to invoke Weber’s The Protestant Ethic and the Spirit of Capitalism.89 When one scratches Schmitt’s Catholicism, one finds Weber.

In Roman Catholicism, Schmitt argues that Roman Catholicism, unlike economic-technical thinking, is formative; it uses political form to order the world in light of its specific “Idea.”90 For Schmitt, possessing a “true” regulative Idea allows Roman Catholicism to order the world and therefore be political. The absence of a determinate Idea makes economic-technical thinking ‘formless’ and apolitical. It is merely mechanical. Thus, Schmitt’s use of “political” here already begins to take on the shape he would later define it as in The Concept of the Political, which I discuss in Chapter 4.

The most significant point in Schmitt’s discussion of this relationship between Idea and form is the conclusion of the initial argument about Catholicism’s political nature: “To the political belongs the idea, because there is no politics without authority and no authority without an ethos of belief.”91 Politics, ordering the world through institutions, depends upon authority. Authority, the legitimacy of any hierarchical relationship of obedience, in turn, depends on this ‘ethos of belief.’ Ethos of belief relates an individual or group to an Idea; it is the faith in the validity of that particular Idea. Restated, Schmitt argues that an Idea held to be valid (by a community) can generate the authority necessary to provide political form. Without a legitimate Idea, there is no authority, and without authority there can be no political form, e.g., the “ethos” of Catholic belief generates Catholic authority, which in turn generates Catholic political form.

Similarly to his earlier works, Schmitt conceives of an Idea as transcendental and necessary for making the world intelligible and a place in which meaningful action can occur.92 The compelling nature of a particular Idea relates to its ability to make the radical disorder of phenomena present to the sense comprehensible; the Idea is an essential part of experience.93 And again, although an Idea underlies experience, it has no reality and cannot provide form by itself – abstract Ideas require mediation.94 And here Schmitt provides a clue about his claim in

89 G. L. Ulmen, "Introduction to Roman Catholicism and Political Form," in Roman Catholicism and Political Form (Westpoint: Greenwood Press, 1996), xix; Galli, La Genealogia della Politica, 256-261; McCormick, Ca l S m tt’s Critique of Liberalism: Against Politics as Technology, 73. 90 Schmitt, Roman Catholicism and Political Form, 5, 11. 91 Schmitt, Roman Catholicism and Political Form, 17. Schmitt’s ‘ethos of belief’ (Ethos der Überzeugung) may be a reference to Weber’s Gesinnungsethik (usually translated as ethic of absolute ends or ethics of conviction) from his lecture “Politics as a Vocation.” While Weber espouses its contrast, the ethic of responsibility, he concludes the lecture saying no one can get by without some ultimate belief – some weltanschauung. Schmitt agrees with Weber here, at least with regard to the necessity of some belief or conviction. What Schmitt is saying in the quoted passage is politics requires some idea of how the world ought to be – the authority of a political system derives from the legitimacy of that belief – the fact that the idea the political system is attempting to realize is perceived to be legitimate by the constituents of that political system. See Galli, La Genealogia della Politica, 269 (fn. 260). 92 Schmitt, Roman Catholicism and Political Form, 27. 93 Galli, La Genealogia della Politica, 28. 94 Galli, La Genealogia della Politica, 107.

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Political Theology about the importance of ‘personality’ in the bridging of Idea and concrete reality. He writes only human agents can actually mediate Ideas.95 Machines cannot decide, they can only execute their programming.96 Humans concretize Ideas by judging particulars and acting on the basis of those judgments. Thus, politics for Schmitt is the product of the concrete representation of an Idea in the world. And political form overcomes the problem of pluralistic attempts to concretize Ideas.97 And language mediates an Idea.98 Language is public. Without it, the relationship between Ideas and reality simply cannot be expressed nor any consensus formed.

And again, authority – not power – is central to determining the relationship between Idea and reality. The representative of the Idea receives his or her authorization from “above.”99 By which Schmitt seems to mean authorization comes from the legitimacy of the Idea itself. He writes “representation invests the representative person with a special dignity because the representative of a noble value cannot be without value.”100 This special dignity bestowed is the legitimacy the Idea itself has. As long as the representative appears to represent the Idea and the Idea is accepted as legitimate, the representative’s actions take on the transcendent character of that Idea. Thus, for Schmitt, the representative does not really act but merely mediates the Idea concretely.

Here too, Schmitt articulates the problem of the relationship between an Idea and concrete reality through the constraint of the hiatus between the two. Schmitt wants to understand how to effect a particular Idea, to create “form,” in the world when there is no determinate relation between the two. Because of the central role Roman Catholicism plays, along with the vilification of “economic-technical thinking,” it is easy to forget Schmitt wrote this book on the heels of Political Theology. Yet by looking “behind” its Catholicism, one finds the same epistemological problem he has dealt with all along. And after this book, Schmitt returned to the terms he used in Political Theology in texts like “The Age of Neutralizations and Depoliticizations” (1929) and The Concept of the Political (1927/1933). d. Quis Judicabit? Late Formulations of Political Theology

Despite claiming to enter a “security of silence” after the Second World War, Schmitt continued to develop and write about his ideas. The high points of the development of “political theology” came in the 1963 edition of The Concept of the Political and in Political Theology II (1970). In these books, Schmitt integrates into political theology essential questions he attributed to Hobbes: quis judicabit? and quis interpretabitur? Yet, although Schmitt’s thought developed and he

95 Schmitt, Roman Catholicism and Political Form, 17-19; Galli, La Genealogia della Politica, 251. 96 Schmitt returns to this theme, in the context of cybernetics, late in his life. Cybernetics, which as a field of research was making promising developments in the late 60s and 70s, horrified Schmitt. Schmitt, "Die vollendete Reformation," 67-68. Cf. Materialen Carl Schmitt (RW 0265-20652). 97 Schmitt, Roman Catholicism and Political Form, 5. 98 Schmitt, Roman Catholicism and Political Form, 21-24. 99 Schmitt, Roman Catholicism and Political Form, 27. 100 Schmitt, Roman Catholicism and Political Form, 21.

Page | 59 Leviathan Run Aground: Chapter 2 became more Hobbesian, Schmitt’s neo-Kantian foundations never erode. In fact, his understanding of Hobbes maps onto his earlier ideas.

Incorporated into the 1963 Edition of The Concept of the Political are notes from a 1960 seminar Schmitt gave at Ebrach on Hobbes.101 In these notes, Schmitt expands on his interwar writings on sovereignty, the decision, and Hobbes’ maxim auctoritas non veritas facit legem with the following “Hobbes Crystal”102:

This crystal describes the relationship of an Idea, an authority, and a constituency.103 The top level of the crystal is “open to transcendence,” obtaining some veritas from a transcendental source. As an example of some veritas, Schmitt takes the truth “Jesus is the Christ” from Hobbes’ reading of scripture in Leviathan. He says, however, that this truth claim could come in the form of any Idea, such as “Allah is great,” “, Equality, Fraternity,” “Man is good,” or “to each according to his ability.”104 Whatever one believes. From these examples, political theology clearly does not imply merely revealed religion or even religion at all. Schmitt not only classifies atheism as a theology but identifies multiple atheistic “theologies.” What all these “theologies” share is their status as the basic dogma of a Weltanschauung.105 What matters to Schmitt, again, is how the Idea comes to be concretized in reality, he recognizes that there are many potential Ideas and that a debate over which “faith” is truly right and true would be absurd.

101 George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt (Westport: Greenwood Press, 1989), 46. 102 Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 3rd ed. (Berlin: Duncker & Humblot, 1963), 122. 103 For more on the Hobbes-Crystal, see Appendix Note I. 104 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122-123. This is hardly an unintentional argument for religious liberality, as Karsten Fischer claims (Fischer, "Hobbes, Schmitt, and the Paradox of Religious Liberality," 411.). Hopefully, it is clear that these ideas represent a series of political depoliticizations of potential sites of conflict (by transcending the conflict to a higher third, so to speak) by asserting a new truth-value that relativizes prior dogmatic conflicts. 105 Here: , Islam, (French) Nationalism, , and Marxism

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Drawing on Hobbes, Schmitt argues that the concretization of a veritas is not unproblematic. Deciding abstractly on a veritas or Idea is a precondition for the first tier of the Crystal. But as important as this initial decision is, it does not say much about how it concretizes. The second axiom asks the natural question in the face of this second level of indeterminacy: whose interpretation of its concretization is correct? For Hobbes, this question came from a practical dilemma: in his time, although all Christians agreed on the abstract Idea of Christianity and agreed on the same Biblical text, violent conflict erupted because it was not clear how to interpret them concretely.106 Schmitt agrees with Hobbes, arguing the Reformation was a struggle over who could legitimately interpret the same abstract Christian Idea; it was a struggle over quis judicabit? and quis interpretabitur?107 The underdeterminacy of an Idea gives rise to mixed concrete interpretations. These interpretations may be irreconcilable and conflict. Conflict over dogmatic interpretation gives way to the question “but who shall judge?” – or quis judicabit?108

Dilemmas over how to answer these interpretational questions lead to the third “central” axiom: Hobbes’ maxim auctoritas non veritas facit legem. And Schmitt returns to the conclusion he drew 40 years earlier in Political Theology: the auctoritatis interpositio. He again argues that the only way to bridge the divide between Idea and concrete reality is through an authoritative decision that cannot be substantiated logically. This authority, Schmitt writes in agreement with Hobbes, must be the political sovereign. It must be a representative authority who can issue public laws and bring about political unity.

The fourth axiom argues only a direct power (potestas directa), not an indirect power (potestas indirecta), can possess sovereign authority. Direct power governs through political institutions and possesses legitimacy because of its relationship to the transcendental Idea or veritas that constitutes the political order – the direct power has the auctoritatis interpositio because it purports to judge or particularize rightly. Only the state has the institutional apparatus to enforce an Idea and eliminate the conflict-producing ambiguity of the hiatus. It issues laws. And, perhaps most importantly, its acts are first concerned not with the truth claims themselves but with neutralizing dogmatic conflict to produce . This claim anticipates Schmitt’s ideas of neutrality and neutralization, which I take up in subsequent chapters. Indirect powers, in contrast, are subversive precisely because they are ethically irresponsible and will do whatever it takes to realize their dogma concretely. Schmitt thinks that direct power can legitimately and responsibly represent the political community whereas rule by an indirect power would simply mean rule by factional interest, which would plunge the community back into the state of nature.109

106 Johnston, The Rhetoric of Leviatian, 173. 107 Schmitt, Political Theology II, 51, 114. 108 Cf. Hobbes, Leviathan, 409. 109 For a richer discussion of the effects of indirect powers, seeCarl Schmitt, "Im Vorraum der Macht: aus einem Gespräch über den Einfluß auf den Machthaber," Die Zeit, July 29 1954, 3.

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The fifth descending axiom argues that there is a basic material criterion that political authority fulfills (in addition to the basic transcendent criterion): direct power provides security, peace, and order (“protection”) to its constituents. Its legitimacy hinges in part on its ability to satisfy this material need. If the sovereign cannot guarantee protection against the insecurity and death of the state of nature, it is illegitimate as a political figure no matter how legitimately it represents the “truth.” Like in Hobbes, Schmitt finds, by providing protection against the state of nature, the sovereign is granted the total obedience of its constituents, which includes the unquestioning acceptance of the authority of sovereign decisions. The base of this crystal – what appears to be a direct reference to Hegel110 – is no longer “open” to transcendence because it is determined by material necessity. But, for Schmitt, the need trumping all other material needs is the need to escape the state of nature and establish some modicum of peace and security.111 No form of transcendence and veritas can affect this basic requirement, so Schmitt sees this basic relationship of protection and obedience as closed off and static, in a certain sense. Beyond these basic needs, Schmitt sees sovereignty as addressing the problem of the hiatus between Idea and juridical reality because of its political capacity.

Political theology in Schmitt’s late period does not rely heavily on Catholicism. Instead, Hobbes is the central figure. Still, Schmitt’s argument is the same: no language or concept or Idea is self- actualizing or self-determining. Even with a fixed truth, one must determine who has the authority to decide what it means concretely. He writes, “No machine yet is so perfect and ‘cybernetic’ as to be able to pose the question quis judicabit?, in the sense of Hobbesian philosophia practica, outside of its own preconditions. In contrast to this machine, which by itself provides solutions and answers, the decisive question of quis judicabit? or quis interpretabitur? is specified as the question quis interrogabit? Which is the question of who poses questions and codes them into a machine in itself beyond the decision…It is the actual opacity and blurred borders that keeps conflicts from resolving peacefully.”112

And Schmitt again raises Hobbes’ nominalism and the role that the determination of language plays in political and juridical life. He writes “Hobbes understood what words and names meant, he understood the mythical art of names through which words and names gain meaning. As a nominalist, the entire world of human representation and thought is not something merely given, but something created first by fiat of words and language.”113 Hobbes’ philosophy of language draws out the problem of pluralism and the breakdown of sovereign order: without one entity defining the meaning of concepts – insofar as they relate to political order – the state fragments

110 G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (New York: Oxford University Press, 1967), §189-208. 111 Carl Schmitt, Gespräch uber die Macht und den Zugang zum Machthaber (Klett-Cotta, 2012), 18-19. I develop the Hobbes Crystal, including my discussion of the system of needs and transcendence, in relationship to the state and the political in chapters 4 and 5. 112 Schmitt, "Die vollendete Reformation," 64, 65. 113 Schmitt, "Die vollendete Reformation," 53. Also relevant to this is Schmitt’s outline for “The Total State according to Thomas Hobbes” (RW 0265-19965). Schmitt gestures toward Hobbes’ genealogy, and his attention to the pluralism of the state of nature, through the “weltanschauung of Nominalism, Occam, and Marsilius.”

Page | 62 Leviathan Run Aground: Chapter 2 as words and concepts come to be determined individualistically, resulting naturally in pluralistic, conflictual interpretations of formally identical words and concepts.114 As soon as one of these conflicting interpretations becomes sufficiently politicized and without a recognized sovereign, neutral authority to fix meaning, peace dissolves.

Political Theology II, coming almost a decade after Ebrach, raises the problem of the hiatus yet again. To “show what is at stake in political theology,” Schmitt cites Hegel’s Encyclopedia of the Philosophical Sciences, paragraph §552.115 Paragraph §552 argues a political revolution cannot succeed without a religious revolution; law and justice cannot be separated from religion. Still quoting Hegel, Schmitt goes on to argue Plato got it right when he said a genuine constitution and a sound political life must have their deeper foundation on “the Idea” (the Idea must be “regent” of the political order). Schmitt concludes Political Theology II arguing, as long as man is in the world, Hobbes’ questions quis judicabit? and quis interpretabitur? will need to be answered in concreto.116 Politics could not be “closed off” from theology, metaphysics remained “unavoidable.” At the end of his academic career, albeit in different terms, Schmitt was still grappling with the problem at the beginning of his career: given epistemological indeterminacy, how could (normative) Ideas and political reality be related in a way that produced a legitimate order and meaningful life? No political order could this question and, according to Schmitt, the breakdown of authoritative “bridges” over the hiatus was part of the problem that Weimar faced. e. The Epistemological Problem of the Hiatus Irrationalis

Both Political Theology and Political Theology II argue against the “closure” of politics and theology – by which, Schmitt means that the two spheres cannot be studied or understood independently. 117 However tempting it may be to separate them, belief and action, Ideas and reality, are intertwined. Every “theology” has practical, concrete consequences. Every intentional act is rooted in Ideas about the nature of the world. Thus, even though there is a hiatus between a particular theological dogma and concrete reality, we behave as if that dogma were determinate for reality and interpret its meaning concretely. But this hiatus leads to pluralistic, conflicting interpretations. Schmitt, invoking Hobbes, argues the only solution lies in sovereign authority.

The hiatus thus presents the problem of insurmountable epistemological indeterminacy. This indeterminacy manifests in two ways juridically. He thinks Hobbes identified the first way, which the first section of this chapter addressed: the concrete indeterminacy of an accepted Idea. Even if, for example, Christianity is universally believed, what it means concretely is indeterminate. This indeterminacy caused the Thirty Years’ War. Hobbes’ auctoritatis interpositio, Schmitt thinks, solves this indeterminacy: an authoritative interpretation of

114 Schmitt, "Die vollendete Reformation," 61. 115 Schmitt, Political Theology II, 125. 116 Schmitt, Political Theology II, 115. 117 Political Theology argues from the perspective of juridical order and politics, Political Theology II from the perspective of theology.

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Christianity can neutralize an ideological point of political conflict. And Schmitt agrees with Hobbes that the duty of the sovereign is to protect individuals against the insecurity of the state of nature, which includes the chaos that results from the lack of consensus on the meaning of words and concepts.118 The authority of the sovereign is, at its core, derivative of the relationship between protection and obedience.

Although Schmitt agreed with Hobbes on the importance of the sovereign decision and its interpretative monopoly over the foundations of thought, i.e. words, concepts and Ideas, Schmitt thought Hobbes had overlooked some important questions of political legitimacy. The second aspect of indeterminacy is a deeper problem: how can a stable political order break down. It deals with disagreement over different Ideas, rather than the concretization of a single Idea. In addressing this aspect of the hiatus, Schmitt moves beyond Hobbes.

2. Political Theology and Disenchantment

Addressing the concrete indeterminacy of one particular Idea was important. But states could still undergo legitimation crises, even when the order itself had not changed. How could this happen? How could a sovereign lose its auctoritatis interpositio despite continuing to guarantee “protection”? Schmitt answered this question by pointing to the pinnacle of his Hobbes Crystal – its openness to transcendence was the only point admitting change. He argued “metaphysical images” of the world change. Values and beliefs lose their traction over time and members of a social community come to question them.119 Using a pseudo-Hegelian idea of historical change, Schmitt charted these transformations in a sort of “political-theological” degenerative process. Changes in Ideas have a direct effect on the world and conceptions of legitimacy. For example, at the onset of the Confessional Civil Wars, religious leaders met at the Colloquy of Poissy to try to heal the rift between what they believed to be two branches of the same Christian root.120 They discovered, instead, that Catholicism and were two distinct theologies rooted in irreconcilably opposed scriptural dogmas, sacerdotal authority and the Church, the sacraments, human will, and salvation. And these beliefs politicized because the disputed tenets seemed so existentially important their adherents would rather die than compromise.

118 Schmitt, The Concept of the Political, 52. 119 Neo-Kantian discussions of historical change may have influenced Schmitt. For example, Vaihinger’s “Law of Ideational Shifts” (Gesetz der Ideenverschiebung) argues Ideas pass through various stages of development: from conscious fiction, to hypothesis, to dogma and the reverse. See Hans Vaihinger, T P losop y of ‘as If’, trans. C. K. Ogden (London: Routledge & Kegan Paul Ltd., 1965), 124-134. Max Weber uses Ideational Shifts to describe the historical change in the conception of property (Max Weber, Zur Geschichte der Handelsgesellschaten im Mittelalter from Gesammelte Aufsätze zur Sozial- und Wirtschafts-Geschichte) and it would seem to lie in the background of his work on the Protestant Work Ethic and the Spirit of Capitalism as well. 120 Cf. Nadia Urbinati, "Half-Toleration: Concordia and the Limits of Dialogue," Political Science (Columbia University, 2011), 22-26.

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Schmitt believes the Protestant Reformation was the beginning of a historical process of metaphysical degeneration. He provides two nuanced formulations of this process, first in Political Theology and then in “The Age of Depoliticization and Neutralizations.” In other works, he describes it simply as an antithesis of Catholicism and either Protestantism or Atheism. Despite his varied articulations, these formulations share an underlying coherence. They articulate a process of disenchantment, beginning with Protestantism, and examine how that disenchantment affects the state, political authority, and the constitution. Schmitt believed outlining these stages of metaphysical degeneration allowed a better understanding the underlying causes of Weimar’s situation. Weimar, he thought, was in crisis because it was modeled on 19th century Ideas of legitimacy. But those 19th century metaphysical assumptions were no longer valid. And Weimar’s unchanged institutions were behaving far differently than its architects had intended. This section outlines Schmitt’s philosophy of modern history as metaphysical degeneration. It is divided into three subsections. First, it discusses metaphysical degeneration in Political Theology. Then it discusses this process in “The Age of Neutralizations and Depoliticizations.” Finally, it discusses change more broadly as disenchantment.

a. Political Theology: Schmitt’s First Formulation of the Disenchantment of the State

As noted above, Schmitt refines his understanding of the neo-Kantian epistemological problem of the hiatus using Cortés’ political theology. But his debt to Cortés runs even deeper. The third chapter of Political Theology lifts – almost verbatim – Cortés’ philosophy of history and recontextualizes it to fit Weimar. Carlo Galli alone seems to have noticed this but Schmitt’s historical account plays a far greater role in his diagnosis of the crisis of the state than Galli acknowledges.121 When Political Theology was first published as a commemoration for Max Weber, this third chapter was the final chapter – so Schmitt had originally concluded his commemoration with an obscure Catholic’s philosophy of history. Why he does this reveals his relationship with Weber and the meaning of both figures to political theology. Schmitt believed both thinkers dealt with the same problem. Moreover, Cortés could help resolve some of the aporiae in Weber’s problematization of modernity.

Political Theology’s third chapter builds on Weber’s The Protestant Work Ethic and the Spirit of Capitalism, discussing different phases of disenchantment and pathological secularization, which degenerates both metaphysical Ideas and their corresponding political orders. Schmitt opens this chapter writing “All significant concepts of the modern theory of the states are secularized theological concepts.”122 He then immediately lays out a simple antithesis: deism versus theism – or early Protestantism versus Catholicism. He says the shift to a deistic metaphysics led to the triumph of the modern state and scientific legitimacy at once.123

121 Galli, La Genealogia della Politica, 348. 122 Schmitt, Political Theology, 36. 123 Schmitt, Political Theology, 36-37.

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Schmitt uses Kelsen to expand on this aspect of political theology. He credits Kelsen for noticing the relationship between theology and jurisprudence. Kelsen did so most famously with his remark “If I decide on democracy, it is done exclusively based on the relationship of form of the democratic state to a relativistic Weltanschauung.”124 Following Kelsen’s political-theological intuition, Schmitt probes more deeply into Kelsen’s metaphysical presuppositions. He notes that, as a neo-Kantian positivist, Kelsen presupposes epistemological legitimacy hinges on conformity of an object of knowledge to scientific method. Because scientific method seeks the necessary and inviolable laws of phenomena that can be explained causally, Schmitt argues Kelsen has an innate interest in scientific objectivity and an aversion to arbitrariness.125

With his metaphysical presuppositions in hand, Schmitt turns to Kelsen’s “decision” for democracy. Kelsen’s “relativistic” democracy holds that whatever the outcome of democratic procedure, the aggregate of individual votes, is a legitimate political decision. For Schmitt, this reflects natural scientific methodology. In natural science, legitimate knowledge is limited to observable matter (what can be “quantified”) and it disregards classical conceptions like substance or essence (“qualities”) because they cannot be measured objectively.126 This means Kelsen’s theology cannot distinguish law’s substance from its accidental features. Kelsen reduces legitimacy to accidental, positive features because only what is accidental can be openly observed and quantified. But Schmitt is troubled by Kelsen’s approach, both politically and metaphysically – it appears arbitrary to him. Moreover, he thinks it may have something to do with Weimar’s legitimation crisis. Ultimately, he will argue it reintroduces the conditions that give birth to civil war in a political body: in an age of mass democracy and political pluralism: the unprincipled, value-neutral democracy exemplified by Kelsen’s quantitative proceduralism is the source of Weimar’s instability.127 He generalizes his conclusion: the predominant metaphysical presuppositions of an epoch affect and structure its other value-spheres; metaphysics is the most intense and clearest expression of an epoch’s legitimacy.128

To make his case, Schmitt turns his gaze toward history, beginning with the 16th century. Schmitt argues theistic metaphysics prevailed at the time. It was mirrored politically by understanding the theological sovereign as a personality who was simultaneously creator, legislator, and architect of the law.129 The Counterrevolutionaries rightly argued, Schmitt believes, that the Enlightenment put legitimacy on a track toward scientific materialism. The first shift in this direction was slight but of enormous significance. It was Protestant Reformation’s introduction

124 My translation. Hans Kelsen, Vom Wesen und Wert der Demokratie (Tübingen: J.C.B. Mohr, 1929), 118; Cf. Reinhard Mehring, Carl Schmitt. Zu Entführung (Hamburg: Junius Verlag GmbH, 2009), 28-29. 125 Schmitt, Political Theology, 41. 126 Schmitt, Political Theology, 42. The quantitative/qualitative distinction plays a larger role in his writings in the 30s, but one finds it also in Schmitt, Political Theology, 32. 127 Fischer is wrong to deny that Schmitt was unaware of Hobbes’ Behemoth. Fischer, "Hobbes, Schmitt, and the Paradox of Religious Liberality," 408. Like Hobbes, Schmitt believes that total individualized interpretation (the democratization of the auctoritas interpositio) is a direct cause of civil war. 128 Schmitt, Political Theology, 45. 129 Schmitt, Political Theology, 47-48.

Page | 66 Leviathan Run Aground: Chapter 2 of deistic metaphysics. Deism presupposes the universe is mechanized and operates according to general inviolable laws. God exists and remains the architect of that universe, but no longer acts within it. Deism, Schmitt argues, then gave way to pantheism. Pantheism presupposes a depersonalized God, without architectural or decisionistic qualities.130 Instead, God is immanent, consisting in the universe itself. Finally, he argues, pantheism gives way to atheism. God is banished altogether. Only scientific method can establish legitimate knowledge.131 God no longer has any place. Each metaphysical stage sows the seeds for its successor. But all spring from the same origin: Protestantism. It decried the will and authority of the Church and the theistic God and undermined the basis for mystery by shifting the basis for belief from dogma to individual faith, which then gravitated toward material, phenomenal accounts of the world.

Schmitt argues that these metaphysical “rejections” of God are mirrored by shifts in political legitimacy. The political sovereign of a theistic epoch was understood like its God: personal, decisive, creative, independent and above the law, and unitary – and these qualities were an extension of his legitimacy.132 Deism still admitted sovereignty, but only when bound to the law.133 Legal exceptions, however, had vanished. The sovereign of a pantheistic epoch was further impoverished. He was no longer even a personal, tangible figure. Legitimate sovereignty resided immanently in “the people,” an abstract, represented being. Finally, in an atheistic era, there is not even an immanent sovereign standing somehow ‘above’ real institutions. Sovereignty becomes the democratically aggregated will of actually individuals.134

Schmitt’s sociology of the concept “sovereignty” can be depicted as follows:

130 Schmitt, Political Theology, 49. 131 Schmitt, Political Theology, 50. 132 Schmitt, Political Theology, 47. 133 Schmitt, Political Theology, 48. 134 Schmitt, Political Theology, 50-51; Cf. Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge: The MIT Press, 1988), 22-23.

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THEOLOGY TIME PERIOD POLITICAL STRUCTURE THEORIST Theism 17th Century Monarchy: Sovereign is personal, decisive, and Hobbes decides according to particulars Deism 18th Century Constitutional Monarchy: Sovereign is personal and Malebranche, decisive, but decides only universals (there are no Leibniz exceptions; sovereign subjected to law) Pantheism 19th Century Republic: Sovereign is no longer personal, but Rousseau, Sieyes, immanent (arising out of "the people") Tocqueville, Jefferson Atheism 20th Century Anarchy: Sovereignty resides in individuals; there is Proudhon, Bakunin no authority, order arises "accidentally" or naturally

Schmitt thus depicts political conceptions of legitimate sovereignty deriving from and running parallel to legitimate theological sovereignty.135 Schmitt, through his “sociological analysis of concepts,” argues attempts to “close” political theology will fail. Questions of politics and theology bear upon one another inextricably. So the metaphysical disenchantment Weber describes has a corresponding political disenchantment.

Schmitt’s account of metaphysical degeneration is lifted almost unaltered from Cortés “Speech on the Situation in Europe.” Cortés similarly divides history into the same four theological periods and draws the same political-theological conclusions for political form.136 And Schmitt concludes Political Theology by explicitly discussing Cortés. He discusses how Cortés believed legitimacy could be saved with dictatorship, which would preserve the quality of personal decision. Cortés, like Hobbes, embraced auctoritas in political form. Although he would later change his mind about Hobbes, in 1922 Schmitt argued Cortés offered something Hobbes could not. He thought Hobbes was a victim of his own deistic metaphysics, which corrupted his state theory. Cortés, on the other hand, understood history. Schmitt praises Cortés theistic weltanschauung for rejecting “[Hobbes’] mathematical natural-scientific thinking,” which gave him greater clarity about how metaphysics affects juridical form.137 Schmitt departs from Cortés, however, over monarchy. He recognizes the steady march of democratization cannot be resisted. The burning question for Schmitt, discussed in later chapters, was whether a form of the democratic state existed that could overcome the factionalizing effects of democratic relativism.

135 Nadia Urbinati has drawn my attention to how Schmitt follows a classic 19th century attack initiated by La Civiltà Cattolica, a journal founded by a group of Napolitani Jesuits led by Carlo Maria Curci, against pantheism (Spinoza) and immanentism. In its attack, the journal aimed to restore core tenants of Thomist Philosophy, including the role of faith (against reason) in knowledge of truth, the centrality of spirit (against materialism), the duty of all toward the common good (against individualism), the importance of spirituality (theological belief) to political affairs (against their supposed autonomy), and – of course – papal infallibility. While it is unclear how familiar Schmitt was with the journal, his argument clearly parallels this attack. 136 See Appendix Note II 137 Schmitt, Political Theology, 52. Schmitt, of course, will later recant this accusation of Hobbes by arguing against this interpretation of Hobbes. Instead, Schmitt will claim in 1963, Hobbes scientific achievement was not mathematical or geometric, but contained wholly within philosophia practica and moral-juridical science because of his fundamental concern for the question quis judicabit?. Schmitt, "Die vollendete Reformation," 64-65.

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In Schmitt’s polemic with Kelsen, he argues Kelsen’s democratic relativism is an end stage in this process of degeneration. In Kelsen’s “decision” for relativism, the authority to interpret theology, norms, and political order is left to every individual – which for Schmitt, risks exposing the state’s institutions to the pluralistic conflict of the state of nature. Protestantism’s metaphysical regression also sparked crises in state authority. With every shift in theology, there comes a corresponding crisis in political authority, which forces a revision of the political institutions of an epoch. In 1933, it appears that Schmitt believed “atheistic” theology’s clash with pantheistically-designed institutions was the cause of the Weimar crisis.

But even more problematically, Schmitt argues, an atheistic Weltanschauung inhibits the possibilities for meaningful human life. Political and theological “atheism” are driving the world into disenchantment – and this meant, politically, a world without any authority at all. Haunted by Weber’s account of the disenchantment and rationalization of the world – and the role that Protestantism played in placing humanity on that track toward secularization – Schmitt struggled to find a solution. He concludes Political Theology with Cortés because he offers a different perspective on the problem of disenchantment – one which, in Schmitt’s opinion, might offer insight into a way out of ‘the polar night of icy darkness and hardness’ that trapped Weber. b. Stages of Neutralization and Depoliticization: Schmitt’s Revised Formulation

In the preface to the second edition of Political Theology (1934), Schmitt writes his article “The Age of Neutralizations and Depoliticizations” (1929) addresses “the major problem concerning the individuals stages of the process of secularization,”138 effectively amending the process described in Political Theology. This revised version dominates his later Weimar writings.139 But while Schmitt’s 1929 reformulation has affinities with Political Theology, it does not map neatly onto it. This time, he divides modern history into four stages: theological, metaphysical, humanitarian-moral, and economic, but suggests a fifth “technical” stage is on the horizon.140

Schmitt writes “all essential concepts are not normative but existential.”141 The significance of a concept is existentially determined by an epoch’s predominant metaphysics. Sovereignty is legitimate when existential decisions and distinctions are made in line with the epoch’s metaphysics. Therefore, every epochal shift means that sovereignty enters into crisis as it adapts to this new Idea. Schmitt discusses the meaning of “progress” as an example. The concept of progress in an economic epoch means economic progress. The inhabitants of an economic epoch, particularly elites, understand the world primarily in economic terms. In that epoch, the state’s central task will be primarily economic distribution and regulation.

138 Schmitt, Political Theology, 2. 139 Schmitt, The Concept of the Political, 74-75; Schmitt, The Crisis of Parliamentary Democracy, 13. 140 Carl Schmitt, "The Age of Neutralizations and Depoliticizations," [Das Zeitalter der Neutralisierungen und Entpolitisierungen.] Telos 96(1993): 131, 133. 141 Schmitt, "The Age of Neutralizations and Depoliticizations," 134, 136.

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Schmitt has little to say about the first two epochs or stages. He says that the existential questions of the 16th century were defined theologically, to be solved by theologians.142 And political unity was defined in religious terms – the existential decision before a sovereign was cujus regio ejus religio.143 By the 17th century, rationalism had eclipsed theology and replaced it with metaphysics. Essential questions were metaphysical, to be raised and solved by scholarly “systematizers.” In the 18th century, Schmitt argues deistic metaphysics shifted to “humanitarian- moralism.” The essential questions of that epoch were defined in terms of virtue and morality. Existential identities were nationalistic: political equality meant the nation.144 And, Schmitt argues, the epoch’s intellectual representatives were Enlightenment thinkers.

In the 19th century, humanitarian-moralism gave way to economic-technical thinking. But Schmitt these epochs were divided by the intermediary stage of romanticism. In a passage recalling his Political Romanticism, he writes romanticism was a pseudo-religious rejection of the world where every individual sought infinite possibility without responsibility. Romanticism was thus a depoliticization. It lacked any commitment to realizing values concretely. It embraced value-pluralism for the sake of infinite possibility. Schmitt saw its indecision as a mystical withdrawal from the world. Because romanticism has no existential commitments and is interested only in what is immediate, Schmitt argues it aestheticizes every value-sphere, dissolving everything into detheologized occasionalism and the possibility of infinite “play.” Paradoxically, romantic aestheticization leads to the economic-technical epoch: by reducing existence to aesthetic occasions, it gives birth to an epoch in which “the core categories of human existence are in terms of production and consumption.”145 Schmitt thinks romanticism’s rejection of values and responsibility leads its adherents to the basest materialism. Presumably, he thinks romantic aestheticism leads to the economic epoch because of the two epoch’s shared consumptive and immediate qualities.146 Romanticism differs from economic because it is spiritually consumptive while economics is materially consumptive.

The economic-technical epoch is best defined by historical materialism: economics is the driving force of all history. Even the state is merely an extension of economic conflict. That epoch’s essential questions regard material distribution. Accordingly, its defining political-existential question was over the state’s economic order – which Schmitt formulates as cujus regio ejus oeconomia. Marx epitomized the epoch’s intellectual. Although the aesthetic occasionalism of Romanticism and economic materialism troubled him, Schmitt was preoccupied most by the dawn of the coming epoch, of technicity. In this epoch, essential questions and problems are

142 Schmitt, "The Age of Neutralizations and Depoliticizations," 135. 143 Schmitt, "The Age of Neutralizations and Depoliticizations," 136. 144 Schmitt, "The Age of Neutralizations and Depoliticizations," 133, 135, 136. 145 Schmitt, "The Age of Neutralizations and Depoliticizations," 133. 146 The difference between them would be that romanticism is spiritually consumptive and immediate, while economic-technicity is materially consumptive and immediate.

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defined in terms of technology and innovation. It has no intellectual representative and it is characterized by the pure, thoughtless “technical” administration of bureaucracy.147

This table depicts the process described in “The Age of Neutralizations and Depoliticizations”:

METAPHYSICS TIME PERIOD DEFINING EXISTENTIAL DECISION INTELLECTUAL EXEMPLARY QUESTIONS REPRESENTATIVE THEORIST(S) Theological 16th Century Theological Religious Theologian Hobbes (16th-17th) Denomination (cujus regio ejus religio) Metaphysical 17th Century // // Scholarly Galileo, Descartes, (17th-18th) Systematizer Hobbes, Leibniz, Spinoza, Suarez Humanitarian- 18th Century Moral Nationality (cujus Enlightenment Rousseau, Moral (18th-19th) regio ejus natio) Figures Pufendorf, Kant Economic 19th Century Material Economic System Economic Marx (19th-20th) Distribution (cujus regio ejus Expert oeconomia) Technologic 20th Century Technological Technology cannot No Cleric // Innovation “decide” because of its (Autonomous instrumental nature Administration)

Schmitt argues there is a meta-pattern driving this process of metaphysical change: neutralization. Historical change occurs when a neutralizing value-sphere politicizes and becomes the site of dogmatic conflict.148 The sovereign “neutralizes” this conflict with a new value-sphere that can absorb the site of conflict, reordering the state and constitution accordingly. For example, Hobbes’ “Jesus is the Christ” neutralized a dogmatic conflict between Protestantism and Catholicism by offering a “higher” veritas, on which both parties could agree. But each new neutralizing value-sphere will eventually politicize and thus become the scene of new dogmatic conflicts between irreconcilable Weltanschauung.149

Like in Political Theology, the first shift was Protestantism’s individualization of theological authority. And it was decisive. It catalyzed the meta-pattern of neutralization, beginning a process of disenchantment and materialism.150 He believes the last, coming epoch of the “religion of technical progress,” will conclude this process with the thorough disenchantment of human life.151 Technicity is attractive, he argues, because it appears to be completely neutral. Problems raised and answered in terms of technology have two qualities that make them appear this way: technical problems are formed in terms of instrumental reasoning and they appear infinitely and objectively solvable. Ultimately, “technology appears as a sphere of peace,

147 Schmitt, "The Age of Neutralizations and Depoliticizations," 135. 148 Schmitt, "The Age of Neutralizations and Depoliticizations," 137. 149 Schmitt, "The Age of Neutralizations and Depoliticizations," 138. 150 Schmitt, "The Age of Neutralizations and Depoliticizations," 137. 151 Schmitt, "The Age of Neutralizations and Depoliticizations," 134.

Page | 71 Leviathan Run Aground: Chapter 2 understanding, and reconciliation”152 and seems as if it would avoid the politicization that earlier neutralizing spheres had eventually underwent.

But Schmitt thinks technology is actually a monkey’s paw. And this is so precisely because it actually is totally neutral. Technology provides no answer to the essential existential questions necessary for meaningful human life. And its neutralizing quality misleads adherents about its actual practical consequences. Technology will not end metaphysics or politicization at all. First, technology engenders what Schmitt calls an “activistic metaphysics.” It presumes the unlimited power of humanity; the unlimited domination of man over nature; and unlimited change and possibility.153 Ultimately, technology does not represent the overcoming of metaphysics and theology per se, but merely the shift toward an utterly materialistic (or negative) metaphysics in which man has supplanted god and nature has supplanted the supernatural.154 But more problematically, because technology cannot provide regulatory Ideas or answers to existential questions, the wielders of technicity simply smuggle in values from other spheres. Technology cannot determine its ends. So individuals will tacitly draw on other Weltanschauungen. Whoever is in power can use technology to augment their beliefs and to impose them on others. Technology only intensifies the political values informing it because of its power and ostensive neutrality.155 Rather than contributing to any positive value like peace, common understanding, or liberation, Schmitt thinks that technology is “a means to the domination of the masses on a large scale.”156 It becomes a powerful instrument of indirect rule.

Schmitt argues further that total neutralization is itself a false dream. It is either disingenuous or death. When it is disingenuous, proponents of neutrality are actually motivated by some value, of which they themselves may not even be aware. They have been ideologically blinded to their underlying beliefs and values. Moreover, the drive for total neutralization takes on a teleological quality: “the most terrible war is pursued only in the name of peace, the most terrible oppression only in the name of freedom, the most terrible inhumanity only in the name of humanity.”157 When not disingenuous, Schmitt thinks total neutralization is “death.” It would be the total absence of value and meaning in life. The proponent of this sort of neutrality knows no enemy because he has no existential values that could be opposed. Perhaps, Schmitt suggests, his only motivation would be fear of death.158 But, he cautions, this motivation could only yield living

152 Schmitt, "The Age of Neutralizations and Depoliticizations," 138-139. 153 Schmitt, "The Age of Neutralizations and Depoliticizations," 141. 154 Schmitt echoes Cortés’ claims about the necessary natural victory of evil. Cortés, Essay on Catholicism, Liberalism, and Socialism, 65-72; Cortés, Selected Works of Juan Donoso Cortés, 61, 67; Johnson, "Introduction to Selected Works of Juan Donoso Cortés," 22. 155 Schmitt, "The Age of Neutralizations and Depoliticizations," 141. 156 Schmitt, "The Age of Neutralizations and Depoliticizations," 139. 157 Schmitt, "The Age of Neutralizations and Depoliticizations," 142. See Chapter 6. 158 Schmitt, in this article at least, argues Hobbes’ justification of the state goes no further than maintaining this existentially negative right. When a state is so construed, it may well succeed in forestalling the state of nature, but at the cost of any positive existential meaning and the loss of any positive reason to found the state to being with (there is merely the negative reason: avoiding death). Its constituents would be the living dead – thoughtless and

Page | 72 Leviathan Run Aground: Chapter 2 death. Life requires positive determination through decisions on Ideas if it is to be meaningful. Total neutrality is the negation of life.

Again in “The Age of Neutralizations and Depoliticizations,” Schmitt grapples with Weber’s problematization of modernity and the metaphysical and political degeneration he thinks it began. He is particularly concerned about its implications for political form: technicity undermines the basis for political authority altogether. It entails truly nihilistic state form through the mechanistic spirit of “administration.” Although Schmitt agrees with Weber that technicity may conclude in a world of congealed spirit, he is equally concerned that it may conclude in a world that is not neutral at all – that technicity, rather than being neutral, might actually paint over value-charged, non-neutral ends with a veneer of neutral legitimacy. In other words, value neutral technicity will allow existential decisions to be smuggled into an apparently neutral process – which, under the mask of technicity, leads to total domination. To anticipate a later chapter, relativized political institutions can be instrumentalized by highly politicized and factionalized powers to “legitimate” their views and impose them across the state.

c. A World Robbed of Gods, Dominated by Impersonal Forces

Schmitt’s philosophy of history sketches out the general problem he was getting at and allow us to look beyond the problems that any philosophy of history is bound to have. The systemic crises that arose out of the advent of Protestantism (described metaphysically as Calvinistic deism and cujus regio ejus religio) have a negative impact on human life.159 But more troubling is that they are the immediate cause of a process leading to the total disenchantment of the world. Above all, both accounts culminate in two forms of disenchantment: the metaphysical disenchantment of the world and the political disenchantment of the state. In other words, modernity is characterized by a progressively deepening crisis of authority.

Political theology is entwined with the twin phenomena of disenchantment and rationalization: as the world is theologically rationalized (“robbed of gods”), the state is politically rationalized. Modernity undermines authority, increasingly subjectivizing value and belief. As rationalization progresses, sober reflection cannot escape that metaphysical values are foundationless. The world’s theological disenchantment is paralleled by its political disenchantment. Juridically, rationalization means the shift of law away from substantive principles like “justice” or reason to positivism.160 For the state, this means the triumph of administration or the complete dissolution of order altogether in political theories like anarchism and pluralism.

mechanized. Schmitt later in his career, argues that Hobbes’ state cannot possibly imply this total neutralization. He comes to believe that it actually does have a positive neutralizing Idea regulating it: “Jesus is the Christ.” Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122. 159 Schmitt argues in Dictatorship that, only with the advent of Protestantism (the collapse of the sa dot um’s authority over secular power), does Sovereign Dictatorship become possible. Schmitt, Dictatorship, 112-113. 160 In his moments where he cannot hide his natural law-orientation, Schmitt himself describes law in these terms. E.g. Schmitt, Der Wert des Staates, 59, 62; Schmitt, "The Dictatorship of the Reich President," 317.

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Disenchantment sits in the background of many of Schmitt’s writings. And allusions to a simplified philosophy of history, from enchantment to disenchantment, can be found in works as disparate as The Crisis of Parliamentary Democracy (1926), Land and Sea (1942), The Nomos of the Earth (1950), and Political Theology II (1970). But Roman Catholicism and Political Form provides an exemplary account of this simplified formulation, where Protestantism exemplifies disenchantment and Catholicism its opposite. For this reason and for its proximity to Political Theology, this section uses it to outline Schmitt’s conceptual antithesis.

Because Schmitt’s argument of political theology, especially here, is in direct dialogue with Weber, a brief recount of Weber’s main argument in his seminal work will better contextualize what Schmitt is arguing in his general philosophy of history.161 According to Weber, Protestantism’s doctrine of predestination was one of the most important theological innovations. It includes predestination for one’s specific worldly calling or vocation.162 It is important theologically because it denied even divine agency could alter fate. For Weber, its deism represented a giant leap forward in the rationalization of the world.163 Anxious about their salvation, early Protestants strove to find signs to comfort their doubts about whether they too shared in God’s grace.164 As a psychological coping mechanism to overcome their anxiety, they embraced a form of ‘inner-worldly’ asceticism. Their lives were purposively driven toward the glorification of god and the active abandonment of the world through their predestined vocation. Because of this abandon into their vocation and their asceticism, they amassed enormous capital and accidentally created their sought-after signs: they must have been saved if God had blessed them with such wealth! The birth of the spirit of modern capitalism was also the beginning of disenchantment.165 The theological doctrine of predestination was the catalyst for modernity.

Weber describes how the advent of modern scientific method furthered the process of rationalization by redefining the terms of legitimate knowledge: dogma, mystery, etc. could not hold up to the scrutiny of scientific method.166 To continue to believe in them was irrational. The loss of these qualities, however, meant another step toward disenchantment. Disenchantment today means that, while people retain the culture of inner-worldly asceticism, it lacks the substantive transcendental orientation the early Protestants had that made it meaningful. Weber means today we maintain the Protestants’ ‘inner-worldly’ asceticism, working ourselves to death without regard to any substantive worldly ends, but we no longer believe some other-worldly salvation awaits our efforts. As modern scientific method became more pervasive, it culminated into the ‘iron-cage’ of domination. The world has no substantive meaning. Our lives are

161 For an expanded account of this, see Anthony Giddens, Capitalism and Modern Social Theory (Cambridge: Cambridge University Press, 1971). 162 Max Weber, The Protestant Work Ethic and the Spirit of Capitalism, trans. Talcott Parsons (New York: Charles Scribner's Sons, 1976), 84-85. 163 Weber, The Protestant Work Ethic 104-105, 117. 164 Weber, The Protestant Work Ethic 110-121. 165 Giddens, Capitalism and Modern Social Theory, 183. 166 Sung Ho Kim, "Max Weber," in The Stanford Encyclopedia of Philosophy ed. Edward N. Zalta (2008).

Page | 74 Leviathan Run Aground: Chapter 2 regulated by supposedly objective administration, according to the only uncontroversial form of reason: instrumental-rationality. Rationalization, at this stage, means that every value-sphere – cut off from all substantive meaning – now operates according to its own logic without regard for human life as a whole. For the state, rationalization meant the increasing control of social and material life by subordinating political institutions to bureaucratization, governing impersonally according to formalized legal rules.167 For Weber, the Protestant spirit undermines the possibility for politics when it is understood to be oriented by decisions and substantive ends.

Schmitt agrees with Weber. Rationalization and disenchantment originated in the inner-worldly ascetic of early Protestantism. And he agrees its outcome is the pervasive rationalization of human life, the reorientation of human action from transcendent values toward abstract formal rules; the change in the orientation of human life toward an impersonal, “objective” order is actually substantively meaningless.168 Schmitt focuses on the materialistic outcome of the Protestant spirit, furthered by modern science. He describes how the economic-rationalism of the era has become substantively irrational in its striving to satisfy whatever arbitrary material needs arise, “be it a silk blouse or poison gas.”169 Its only value is “soulless” exchange. Schmitt thinks these facets of the economic-technical age arise because there is no metaphysical Idea guiding it. Or better, its Idea is the absence of an authoritative Idea. Each individual has total authority over his or her “beliefs” – no matter how unreasonable or wrong it may be.

And, Schmitt reasons, because a technical epoch purports to have no Idea, there is no place for an Idea’s authoritative mediation by political institutions. The administrative state purports to be apolitical: it rejects political authority believing the natural outcome of unregulated exchange is best and argues the state’s role should be merely neutral oversight. But if the free market and the night watch state were at all aligned with reality, if this ‘Idea’ were correct, then Schmitt claims there would not be problems of formlessness, nihilism, rationalization, and disenchantment. And, likewise, he argues the administrative night-watch state, the political form of an economic- technical epoch, is a myth – the public and private realms are thoroughly interpenetrated and its form is not neutral or objective but left to whatever private or “indirect” powers are able to seize control of those “neutral” institutions. The myth of neutrality masks this phenomenon.

Schmitt departs from Weber in suggesting that this increasingly rationalized world is not the only possibility. Schmitt believes Catholicism offers a model for authority and value that avoids disenchantment, which could be appropriated to repair Weimar’s political institutions.170 It is because of its relationship with a determinate Idea that Catholicism represents the antithesis of Protestantism. “Political Form” enters the picture when one reconsiders the relationship Schmitt describes between Idea and reality. Roman Catholicism is political because it works to concretize

167 Max Weber, "Politics as a Vocation," in From Max Weber, ed. H. H. Gerth & C. Wright Mills (New York: Oxford University Press, 1959), 82; Giddens, Capitalism and Modern Social Theory, 180-181. 168 Schmitt, Roman Catholicism and Political Form, 11. 169 Schmitt, Roman Catholicism and Political Form, 15, 25-27. 170 Schmitt, Roman Catholicism and Political Form, 11.

Page | 75 Leviathan Run Aground: Chapter 2 the values of its Idea in the world.171 The Church appears to Schmitt as a complexio oppositorum because it is will instrumentalize whatever means allow it to realize its regulatory Idea: the Catholic political-theological order. The Church’s value does not lie specifically in Catholic theology, however. As I discuss in Chapter 4, Schmitt values Catholicism as an example of a solution to these problems. This model points to a way out of technicity that does not ignore the metaphysics of the 20th century.

For Schmitt, the conceptual antitheses of Catholicism and Protestantism culminate political- theologically into one simple antithesis: the dogma of the natural goodness or natural evilness of humankind.172 Is authority – in any form – the source of evil and are individuals better off left alone, which is to say they will naturally arrive to reason and right? Or do individuals need some form of authority, no matter how limited, to educate or direct passions and drives and to lead them to reason and right? Catholicism is political because it answers the latter, subscribing to the dogma of natural evil. Protestantism in a narrow sense may be political, but its shift in emphasis opened the door to the apolitical dogmas of Schmitt’s time: anarchism and scientistic technocracy. This dogmatic antithesis will become especially important when as I discuss Schmitt’s state theory in depth in Chapter 5. Schmitt believes this challenge to authority and legitimacy is the cause of the crisis of the 20th century.

From this main antithesis between Catholicism’s “political” nature and Protestantism’s “economic-technical” nature, Schmitt teases out several further antitheses. Against the representative character of the Idea of Catholicism, there is the unmediated ‘presence’ of economic-technical thought.173 Against Catholic form, there is the formlessness of economic- technical thought.174 Against the personality of Catholicism, with its juridical derivatives of equitability and its orientation toward substantive justice, there is the impersonality of economic- technical thought, with its juridical derivative of mechanical legislation and judgment.175 Against the Catholic conception of metaphysical freedom, there is the economic-technical notion of scientific determination and causality.176 Against Catholicism’s harmonious relation with its land and “soil,” there is Protestant nomadism, living out of balance with and striving to dominate nature, attached only to the products of industry.177 Against Catholic soul, there is Protestant

171 Schmitt, Roman Catholicism and Political Form, 5. 172 Schmitt, The Concept of the Political, 58-68; Cf. Leo Strauss, "Notes on the Concept of the Political," in The Concept of the Political (Chicago: The University of Chicago Press, 1996), 95-99; Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford: Oxford University Press, 2003), 221. 173 Schmitt, Roman Catholicism and Political Form, 22, 25, 28. 174 Schmitt, Roman Catholicism and Political Form, 5, 22, 25, 27. 175 Schmitt, Roman Catholicism and Political Form, 14, 21, 33. 176 Schmitt, Roman Catholicism and Political Form, 13. 177 Schmitt, Roman Catholicism and Political Form, 10.

Page | 76 Leviathan Run Aground: Chapter 2 economic-technical materialism.178 Finally, against the substantive value rationality of Catholicism, there is Protestant instrumental rationalization.179

In Political Theology II (1970), one finds again Schmitt’s concerns about the impact of rationalization, especially of “technicity” and “technical thought” on theological form and political order in a way reminiscent of his 1929 article “The Age of Depoliticizations and Neutralizations.” And his discussion here expands again on the dialectic between Protestantism and Catholicism. Schmitt is particularly concerned with the conflation of rational-legal legitimacy with substantive legitimacy.180 By confusing legal procedure with substantive legitimacy, any end at all can become legitimate. But if legality is just that, then justice is merely something we give ourselves – having nothing to do with any metaphysical order independent of human will.181 It is self-empowerment. If legality is legitimacy, then justice is mere sophistry: whoever has the power to make law decides what justice is. The most rational-legal “legitimacy” can achieve in the modern world is democratic legitimation – but, as we shall see in the next chapter, “modern mass” democracy, construed in totally value-neutral terms, is a highly problematic form of legitimacy for Schmitt. He argues, echoing his earlier discussion in Political Theology of atheism’s political form, that worldly is directed autistically against theological transcendence.182 Mere legality is the last stage of political degeneration; it reflects the attempt at complete separation from any sort of formative Idea about the world. With this degeneration, the world ceases to be a “politomorph,” a world with a political shape or form.183

But Schmitt reaffirms that even a world completely deprived of traditional theology offers the possibility of enmity.184 Atheism is still metaphysics, even if it is a “negative” metaphysics. And there can be multiple atheistic images of the world – for Schmitt, liberalism, communism, anarchism, and bureaucratic technocracy are four types of atheism. Metaphysics, Schmitt argues, is something unavoidable.185 The rise of atheism simply means theology and humanity have been secularized.186 It does not mean politicization and theology have been overcome.

178 Schmitt, Roman Catholicism and Political Form, 11-12. 179 Schmitt, Roman Catholicism and Political Form, 14-15. 180 Schmitt, Political Theology II, 119. 181 Schmitt, Political Theology II, 120. 182 Schmitt, Political Theology II, 120. Schmitt uses autism in the sense of the Greek αὐτός, meaning the withdrawal into the self, intolerance of external influence and interaction, the tendency to view life in terms of only one’s own needs and desires, and detachment from the world. 183 Schmitt, Political Theology II, 124. 184 Schmitt, Political Theology II, 126. 185 See Appendix Note III 186 Schmitt, Political Theology II, 128.

Page | 77 Leviathan Run Aground: Chapter 2

3. Political Theology in Weber’s Critique of Stammler

In the introduction to this chapter, I noted Schmitt identifies the political theology of the Restoration [Restaurationszeit] as an exemplary illustration of Weber’s critique of Stammler. To be able to interpret this claim is a hard case for explaining his concept of political theology.

According to Weber “Stammler’s whole argument depends on…the most colossal Scholasticism,” which is to say Stammler, like medieval scholastics, is so concerned with harmonizing facts by ironing out inconsistencies between value-spheres he commits major methodological fallacies, the most egregious of which is violating the hiatus between facts and values and causally reducing, ultimately, empirical phenomena to spiritual phenomena.187 Stammler ends up committing the same methodological fallacy Marxist materialism does – just inverted.188 The political theology of the Restoration, for that matter, seems to commit the same fallacy Stammler had – and both were intended to counter the materialistic outlook of Marxism.189 They reduce everything to “spirit.” Their political theology is the reduction of phenomena to noumena. It is mirrored politically by a Recht that objectively exists independent from and superior to any really existing facts. But this move is as guilty of breaching the hiatus as Marxism is.

Weber’s critique of Stammler is, for Schmitt, especially relevant because Stammler was Kelsen’s teacher and, Schmitt believes, Kelsen committed the same methodological fallacy Stammler had. Kelsen follows Stammler methodologically, although he uses a different metaphysics: that of natural science and, accordingly, material causality.190 Kelsen transfers this conception of legitimacy to jurisprudence, arguing for democratic relativism as discussed above.191 Thus, Schmitt’s reference to Weber’s critique of Stammler may be a subtle reference to or even critique of Kelsen’s own political theology. Beyond that, for Schmitt, Kelsen’s jurisprudence bears the stamp of the disenchantment of their epoch: he thinks Kelsen’s rigid adherence to the hiatus ends up reducing all values to positivistic facticity, and he can offer no way to reenchant the world outside of an empty transcendental-logical presupposition.

Conclusion: The Weimar Crisis and the Hiatus Irrationalis

187 Max Weber, "R. Stammler's "Surmounting" of the Materialist Conception of History (Part 1)," British Journal of Law and Society 2, no. 2 (1975): 144ff; Cf. Weber, "R. Stammler's "Surmounting" of the Materialist Conception of History (Part 1); Max Weber, "R. Stammler's "Surmounting" of the Materialist Conception of History (Part 2)," British Journal of Law and Society 3, no. 1 (1976); Michel Coutu, "Weber Reading Stammler: What Horizons for the ?," Journal of Law and Society 40, no. 3 (2013). 188 Interestingly, Schmitt simultaneously argues that “political theologians” of the Restoration made this error, showing that he has put some critical distance between himself and them (most notably, Donoso Cortés). 189 Schmitt, Political Theology, 43. “Both the spiritualist explanation of material processes and the materialist explanation of spiritual phenomena seek causal relations. At first they construct a contrast between two spheres, and then they dissolve this contrast into nothing by reducing one to the other.” 190 Schmitt, Political Theology, 41, 42, 49. 191 Schmitt, Political Theology; cf. Kelsen, Vom Wesen und Wert der Demokratie, 84, 118.

Page | 78 Leviathan Run Aground: Chapter 2

At what seemed like the height of the Cold War in 1978, Schmitt wrote theological alternatives were out of the question. The defining issues of the epoch were industrial-economic and to continue to conceive of them in “religious-theological-confessional terms” would be an “obsolete” approach.192 Political theology, for Schmitt, meant finding “the political system of society adequate” to its level of development, by which he meant adequate to the existential questions that defined it most.193 During the Interwar Period and then the Cold War, Schmitt understood those existential questions to be fundamentally of an industrial-economic nature. Of course, today we face even different circumstances still. “Industrial-economic” questions persist, albeit changed by the end of the Cold War, but paired with theological and still other questions. Schmitt, undoubtedly, would have updated his ideas to reflect these changes.194 Nevertheless, to continue to conceive of political theology in strictly religious-theological-confessional terms is, to us Schmitt’s language, “obsolete.” It flattens Schmitt’s concept.

Schmitt describes political theology in epistemological terms as the indeterminate relationship between metaphysics and concrete reality and the political problems this gives rise to, which he builds on a version of Weber’s theory of disenchantment. The first section of this chapter showed how Schmitt described the hiatus as an epistemological problem. It is the problem of the under- determination of Ideas, both their abstract nature taken alone and how an Idea, however assumed, relates to reality. Schmitt eventually argues the hiatus begs Hobbes’ question of quis judicabit?, which is really a question of which regulative Idea is legitimate and whose interpretation of that Idea is legitimate. History affects political theology because Ideas change over time and these changes result in political crises.

Schmitt thought 20th century states were in crisis because the world was going through another stage of metaphysical change. Modern mass democracy was its political parallel. While this political crisis was itself a source of alarm, Schmitt was also concerned about what other effects it would have on political order and security. He thought humanity was moving toward total nihilism, chaos, and even greater unfreedom. He described the disenchanted, pluralist, and impersonal world of technicity as far worse than Hobbes’ bellum omnium contra omnes – in Hobbes’ time constituents could at least agree on Christianity.195 He believed Weimar could not even claim that much. Its political institutions were based on 19th century conceptions of legitimacy. Its legitimation crisis reflected the failure of its architects to take into account 20th century change. In Schmitt’s view, his contemporaries, failing to grasp the significance of history, disenchantment, and indeterminacy, misconceptualized political crises, and presented solutions based on flawed premises. Failing to understand the source of political crises in authority, they only aggravated the crisis; their solutions only anticipated problems that no longer existed.

192 Carl Schmitt, "The Legal World Revolution (1978)," Telos 72(1987): 79. 193 Schmitt, "The Legal World Revolution," 79. 194 Already in 1978, he was aware of the political nature of environmental issues and the polemicizing question of the relationship to progress and environmental destruction. Schmitt, "The Legal World Revolution," 77. 195 Schmitt, Der Hüter der Verfassung, 141-142; Carl Schmitt, Die Tyrannei der Werte (Berlin: Dunker & Humblot, 2011), 39.

Page | 79 Leviathan Run Aground: Chapter 3

The Miserable Condition: Modern Mass Democracy and the Collapse of the State

As far as national politics are concerned, the unorganized mass, the democracy of the street, is wholly irrational. It is at its most powerful in countries with a parliament that is either powerless or politically discredited, and that means above all where rationally organized parties are absent. – Max Weber, “Parliament and Democracy in a Reconstructed Germany”

Absolute democracy annihilates freedom no less than absolute monarchy. This consequence is inevitable whenever monarchical, aristocratic, or democratic form is realized absolutely. – Carl Schmitt, “Der bürgerlicher Rechtsstaat”

Introduction

In his attempt to restore the authority of the Weimar state, Carl Schmitt responded to what he believed to be the defining problem of 20th century politics: modern mass democracy. He argued modern mass democracy – universal suffrage in an age of advanced communications, modern social-psychology, and broadening pluralism – factionalized society and overloaded 19th century republican institutions. In the process, it undermined the authority of the Weimar state and brought it to near-civil war.

This chapter analyzes Schmitt’s critique of democracy in the 20th century. Indeed, Schmitt shows a remarkable hostility to democracy, which he defines, following Thoma, as a state founded on universal and equal suffrage and ruled by “the majority.”1 Schmitt is often interpreted to be the

1 Carl Schmitt, "Der Begriff der Modernen Demokratie in seinem Verhältnis zum Staatsbegriff (1924)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles (Berlin: Dunker & Humbolt, 1988), 19; Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press, 2008), 256.

Page | 80 Leviathan Run Aground: Chapter 3 paradigmatic 20th century illiberal and, we are told, this is the defining feature of his thought.2 But, in fact, whatever misgivings Schmitt had about “liberalism” (a topic I turn to in chapter 6), they were at best secondary to mass democracy simpliciter.

Schmitt believed the unique problem of the 20th century was that universal suffrage opened the state up to the irrationalism of the masses, which could be channeled and manipulated by total movements (“indirect powers”), who exploit that democratic legitimacy to make changes to the fundamental commitments and structure of the state and constitution and impose their factional beliefs across society. He believed that the triumph of positivism had blinded most 20th century political thinkers to the possibility of a tyrannical majority. Too often, he complained, democracy had become a linguistically confused placeholder for “everything that is ideal, beautiful, and appealing” and attached to political movements with wholly irreconcilable understandings of what democracy meant concretely.3 And Schmitt thought what democracy meant concretely was far from clear anyway. He argued it could be attached to many different political practices and that “everything depended on how the will of the people is formed.”4

2 Jan-Werner Müller, "Carl Schmitt and the Constitution of Europe," Cardozo Law Review 21, no. 5-6 (2000): 1781; Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and (New York: Cambridge University Press, 2008), 124; Cf. 114, 182, 127, 141; John P. McCormick, "Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany," Political Theory 22, no. 4 (1994): 644-645, 647; William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 255; Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford: Oxford University Press, 2003), 229-231; Duncan Kelly, "Carl Schmitt's Political Theory of Representation," Journal of the History of Ideas 65, no. 1 (2004): 133-134; John P. McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology (Cambridge: Cambridge University Press, 1997), 5-6; Jürgen Habermas, "Sovereignty and the Führerdemokratie," The Times Literary Supplement, September 26 1986, 1054; Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven: Yale University, 2003), 1ff; Ulrich K. Preuss, "Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution," in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, ed. Michel Rosenfeld (Durham: Duke University Press, 1994), 154; Ellen Kennedy, ""Introduction: Carl Schmitt's Parliamentarismus in Its Historical Context"," in The Crisis of Parliamentary Democracy (Cambridge: The MIT Press, 1988), xxxv-xxxvi; Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge: The MIT Press, 1992), 232, 237-240; Chantal Mouffe, The Return of the Political (Londo: Verso, 1993), 121; Emanuel Richter, "Carl Schmitt: The Defective Guidance for the Critique of Political Liberalism," Cardozo Law Review 21, no. 5-6 (2000): 1631; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997), 38; John P. McCormick, "Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt's Legality and Legitimacy," in Legality and Legitimacy, ed. Jeffrey Seitzer (Durham: Duke University Press, 2004), xlii; Jeffrey Seitzer, "Carl Schmitt's Internal Critique of Liberal Constitutionalism: Verfassungslehre as a Response to the Weimar State Crisis," [Verfassungslehre.] Canadian Journal of Law and Jurisprudence X, no. 1 (1997): 203-205; Jeffrey C. Isaac, "The Return of the Repressed; or the Limits of "Democratic Theory"," in Democracy in Dark Times (Ithaca: Cornell University Press, 1998), 27-28, 34. 3 Schmitt, Constitutional Theory, 257; Carl Schmitt, Political Romanticism [Politische Romantik], trans. Guy Oakes (New Brunswick: Transaction Publishers, 2011), 59ff; Schmitt, Constitutional Theory, 136-138. 4 Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge: The MIT Press, 1988), 22, 23; Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998), 81, (Cf. 56-57).

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Yet political theorists have generally focused on Schmitt’s contributions to democratic theory, usually as a sort of plebiscitary or , and/or his antiliberalism. Some interpret Schmitt as a plebiscitarian democrat. This view holds that he valorized the plebiscite as the authentic expression of democratic will – as opposed to its flawed expression through parliamentary democracy. Alternatively, some read Schmitt as a radical advocate for the right and power of the pouvoir constituant. Famously, Andreas Kalyvas reads out of Schmitt a theory of radical democracy, arguing Schmitt offers a way to salvage Weimar’s democracy against the constraints of its liberal structure through radical innovation.5

But the idea that Schmitt endorsed any form of democracy at all has already been challenged. Jan-Werner Müller argues “a careful reading of Schmitt does not yield a theory of “radical democracy.””6 More strongly, Carlo Galli argues Schmitt diagnoses modern mass democracy as the cause of the crisis of the state.7 And Renato Cristi argues Schmitt actually was an “authoritarian liberal” and no democrat at all.8 And even Kalyvas admits that Schmitt’s vision of democracy is “mute and thus crippled.”9 Aside from whatever positive disposition Schmitt held toward the unconstituted democracy of extraordinary politics, Kalyvas seems to agree with Galli and Cristi that Schmitt deeply opposed all constituted forms of democracy.10

For Schmitt, the crisis of the 20th century state stemmed not from liberal parliamentary democracy but from liberal parliamentary democracy. Schmitt believed overheated modern mass democracy had corrupted Weimar’s parliament democracy, and that this corrupted state form was then being turned on its constitution. And, Schmitt went on, liberal democrats stood idly by while this happened, drunk on the “triumphal march” of democracy. Without sufficient precautions, any mass democratic state was vulnerable to the problems Weimar suffered.11 But determining which precautions to take meant first understanding the depth of the problems mass democracy posed.

Political theology is never far from his analysis. The Crisis of Parliamentary Democracy, originally written only one year after Political Theology, looks specifically at how Weimar’s institutions, the politicized form of “19th century” liberal metaphysics, were unable to contain “20th century” democracy. In 1924, he argued “with all due respect for the power and irresistibility of democratic ideas, one cannot leave the decision on conceptual determination

5 Kalyvas, Democracy and the Politics of the Extraordinary, 8, 82, 93- 97, 115, 122, 131-132, 143-146, 155, 181. 6 Müller, "Carl Schmitt and the Constitution of Europe," 1788; Cf. Jean L. Cohen, "Beyond Political Theology: Comment on Kalyvas on Carl Schmitt," ibid.: 1594; Torben Bech Dyrberg, "The Leftist Fascination with Schmitt and the Esoteric Quality of ‘the Political’," Philosophy and Social Criticism 35, no. 6 (2009): 651; Scheuerman, Carl Schmitt, 41-42, 50. 7 Carlo Galli, La Genealogia della Politica: Carl Schmitt e la Crisi del Pensiero Politico Moderno (Bologna: Il Mulino, 1996), 98, 465, 477. 8 Cristi, Carl Schmitt and Authoritarian Liberalism, 16. 9 Kalyvas, Democracy and the Politics of the Extraordinary, 86; Cf. 83. 10 Kalyvas, Democracy and the Politics of the Extraordinary, 128ff., 176ff. 11 Cf. Schmitt, The Crisis of Parliamentary Democracy, 17.

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[such as “political value judgments”] to public opinion.”12 In 1925, drawing a parallel to the events of 1848, he wrote that Weimar’s crisis was ultimately a conflict over who should rule concretely: the bourgeois or the masses, liberalism or democracy.13 Even more pointedly, in his 1926 preface to The Crisis of Parliamentary Democracy, he argues the crisis of the modern state ultimately stems from the fact that “no state can realize a mass democracy.”14

This chapter discusses Schmitt’s critique of modern mass democracy, focusing in particular on his diagnosis of its effects on liberal parliamentarism. It is divided into three sections. The first section discusses Schmitt’s understanding of liberal metaphysics and shows how he sees it translating into “19th century” ideas of political legitimacy and institutions. The second section discusses the effects of 20th century democracy. It looks at the significant changes Schmitt points to in civil society that allowed for this advent and ties it into changing metaphysical beliefs. It also looks at how these changes in civil society impacted the “unchanged” institutions of Weimar. Finally, the third section draws conclusions linking the changes in civil society, and their impact on the state, to his ideas of historical change and legitimacy discussed in the previous chapter. This third section describes how Schmitt saw himself as the 20th century Hobbes. Modern mass democracy undermined the ability of parliamentary democracy to represent a substantive status and decide political for its political constituency. This was the crisis of parliamentary democracy.

1. Better Talk Had Gone: 19th Century Liberalism

The legitimacy of parliamentary democracy as a method of determining the will of the people hinges on certain assumptions about political legitimacy itself, not to mention assumptions about whose will is legitimate. In The Crisis of Parliamentary Democracy, Schmitt frames his discussion of the methodology of parliamentarism with the question “why has parliament been the ultimum sapientiae for many generations, and on what has the belief in this institution rested for over a century?”15 Following his argument that the “theological” beliefs of an epoch shape the legitimacy of its political institutions, we know already Schmitt wants to argue parliamentary democracy is the politicization of liberal metaphysics. That is, parliamentary democracy is 19th century “political theology.” Understanding what assumptions it rests on will also reveal how 20th century changes affected its capacity to realize political authority.

12 Schmitt, "Der Begriff der Modernen Demokratie," 22. 13 Schmitt, Political Romanticism, 13. 14 Schmitt, The Crisis of Parliamentary Democracy, 16. 15 Schmitt, The Crisis of Parliamentary Democracy, 33. Schmitt immediately rejects the argument “it is expedient,” for this defense could justify many state forms, including some far more “expedient” than parliament could be.

Page | 83 Leviathan Run Aground: Chapter 3 a. Liberal Metaphysics: The Theoretical Underpinnings of the 19th Century State

Schmitt asks his readers to bear in mind that “liberalism be understood as a consistent, comprehensive metaphysical system.”16 Liberal metaphysics, he argues, rests on a peculiar relationship with knowledge. Whatever can be known is qualified by an epistemological reservation: although liberalism holds truth exists and is worth pursing, it is deeply skeptical of the possibility to definitively arrive to that truth. Accordingly, Schmitt characterizes liberalism as “renouncing a definite result” and “relative in a specific sense.”17 Although committed to discovering truth, it recognizes it can only be known in a qualified sense: truth may need to be revised in light of new evidence.18 Schmitt believes liberal metaphysics is still rational. But, unlike other earlier forms of rationalism, it commits to a truth-claim only conditionally. Its commitment to rationality itself trumps any substantive truth-claims, i.e. any definitive “dogma.”19 Schmitt’s depicts it more like a second-order commitment, regulating first-order commitments and, accordingly, liberal metaphysics comes across as more of an epistemological than a metaphysical form of rationalism. It is a relative rationalism.

From his remarks, Schmitt’s understanding of liberalism seems to draw on liberal theories such as Mill’s On Liberty.20 Mill’s liberalism hinges in part on what Akeel Bilgrami has identified as “the argument from meta-induction”21 – and it is from this part that Schmitt, not to mention many others, have drawn their understanding of liberalism. It begins with the observation that past convictions, no matter how deeply held, have been shown to be wrong. The meta-induction is that, so too might current convictions be wrong, no matter how convincing they may seem now. Mill concludes one could not rationally be certain of any “truth.” Accordingly, it would be irrational to close off routes to refine or revise “truth.” This means exposing oneself to new arguments ad infinitum, which will either strengthen one’s already-held beliefs or lead one to revise them in light of better arguments.22 Thus, basic liberal freedoms and a sort of agonistic competition between “truths” are justified as a basis for the continued pursuit and approximation of truth and the good.

16 Schmitt tends to cite figures he believes to be paradigmatically liberal extensively in his portrayal of liberal thought. Cf. Schmitt, The Crisis of Parliamentary Democracy, 2. Schmitt, Constitutional Theory, 236. 17 Schmitt, The Crisis of Parliamentary Democracy, 35 (my emphasis); Cf. Reinhard Mehring, "Liberalism as a "Metaphysical System": The Methodological Structure of Carl Schmitt's Critique of Political Rationalism," Candian Journal of Law and Jurisprudence X, no. 1 (1997): 117. 18 Schmitt, Constitutional Theory, 236; Cf. Carl Schmitt, Der Hüter der Verfassung, 4th ed. (Berlin: Dunker & Humblot GmbH, 1931), 147. 19 Mehring, "Liberalism as a "Metaphysical System"," 110-111. 20 , On Liberty (Upper Saddle River: Prentice Hall, Inc., 1997), ch. 2, especially 64. 21 See Akeel Bilgrami, "Secularism and Relativism," boundary 2 31, no. 2 (2004). As Bilgrami notes, this is not the only argument Mill provides. However, it is too often the only argument for liberalism his readers take away from his work. Schmitt seems to do something like this. 22 Mill’s meta-inductive method has affinities with scientific method. Cf. Ian Hacking, Representing and Intervening: Introductory Topics in the (Cambridge: Cambridge University Press, 1983), 4-5; , "The ," in Popper Selections, ed. David Miller (Princeton: Princeton University Press, 1985). This similarity was probably not lost on Schmitt.

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In Schmitt’s discussion of political theology, liberal metaphysics corresponds to either pantheism or humanitarian-moralism, depending on which account one takes.23 Schmitt sees this faculty as pantheistic because of its immanence: it arises out of individuals as they engage in the process.24 He sees it as humanitarian-moral because of reason’s inherent qualities and the value that derives from them.25 He believes liberal metaphysics rests on the idea that, by opening up the possibility for individuals to investigate truth through their own reasoning, two goods are served.26 First, individuals cannot be dominated by arbitrary drives or powers but are instead “ruled” by reason. Second, the greater good is served by providing an open forum for critique, in which the most reasonable beliefs will naturally come to light. Either way, he argues, liberal metaphysics presupposes some form of transcendent reason exists and that legitimacy is determined by the triumph of reason over arbitrary command or will – ratio over voluntas, νόμος over θεσμός.27

From his account of 19th century liberalism, one can see better why Schmitt thinks romanticism arises out of liberalism and how he ties his arguments about occasionalism into his analysis of liberalism. Because “truth” is at best viewed skeptically, it can lead to a lack of commitment and conviction – it entertains alternative beliefs and opinions because it cannot, logically, make any definite metaphysical commitment.28 And while liberalism recognizes the uncertainty of its own truth claims, romanticism goes one step further by instrumentalizing it: one does not even temporarily commit to anything but “samples freely,” that is, arbitrarily, from Weltanschauungen whenever it is “interesting.”29 Schmitt sometimes seems to want to go further and argue that liberalism is metaphysically no different than romanticism. But he is wrong to do so, since liberalism is hardly uncommitted to truth for reasons of aesthetic “play,” as he suggests.30 To the contrary, it is because of a deep-seated agnosticism about what truth is and the possibility to know any truth – a negative metaphysics that is more an epistemological commitment.

Yet, despite his clear misgivings about liberal metaphysics, Schmitt does argue theories like Mill’s demonstrate a vestige of natural law has persisted. While clearly not robust, the role inherent reason played in 19th century liberal metaphysics was enough for him to argue individual beliefs and actions could converge: humans were persuadable by rational arguments and this minimal basis could serve to provide a basis for legitimate political order. The

23 See Chapter 2 for my discussion of these accounts. In the 1926 second preface, Schmitt describes it as an individualistic-humanitarian ethic and Weltanschauung. Schmitt, The Crisis of Parliamentary Democracy, 13. 24 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [Politische Theologie], trans. George Schwab (Chicago: University of Chicago Press, 2005), 47-51. 25 Carl Schmitt, "The Age of Neutralizations and Depoliticizations," [Das Zeitalter der Neutralisierungen und Entpolitisierungen.] Telos 96(1993): 131-136. 26 Schmitt, The Crisis of Parliamentary Democracy, 35. 27 Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004), 10-11. 28 Schmitt, Political Romanticism, 17. 29 Schmitt, Political Romanticism, 65-67, 116. 30 Both in Political Romanticism (1919) and “The Age of Neutralizations and Depoliticizations” (1929), Schmitt derisively describes romanticism in these terms. Cf. Schmitt, Political Romanticism, 98, 103-108; Schmitt, "The Age of Neutralizations and Depoliticizations," 133.

Page | 85 Leviathan Run Aground: Chapter 3 universality of reason, and the power of this faculty to move individuals beyond egoistic, private interests, allows a narrow form of natural law.31 It appears like a sort of natural order in which reason can, indirectly, be said to be sovereign, even if this natural order did not yield a definitive metaphysical, ethical, or political system. The method of reasoning itself could still produce arguments for truth and for political legitimacy. b. The 19th Century State: Liberté and the Legislative State

Schmitt argues a liberal’s commitment to epistemic uncertainty leads to the recognition that others’ perspectives, reasons, and practices based on them may have some legitimacy. Thus liberal metaphysics leads to a substantive political decision for “Liberté,” a decision for the protection of individual citizens against abuses of state authority and power and for personal freedom, including a private sphere of belief and ownership.32 The relative rationalism of liberal metaphysical politicizes as relatively rationalism as well. Individuals should be left the possibility to investigate truth on their own, especially the most important truth, religious truth – the orientation and source of meaning in each individual’s life.33

Schmitt argues the political decision for Liberté leads to two principles of state form. The first principle is “distributional” and the second “organizational.”34 The distributional principle establishes a sphere of freedom by constraining the state’s ability to interfere in individual life. It does so with basic rights, both for individuals in isolation (such as freedom of religion) and individuals in society (such as and freedom to assemble).35 Thus, rights guarantee an individual the freedom to pursue truth and right according to individual conviction. The only authority is what appears most reasonable from the perspective of that individual.

An organizational principle complements the distributional principle. Schmitt argues this principle furthers Liberté by constraining the state internally. It checks the power of the state by creating different competencies (executive, legislative, and judiciary) that balance one another – minimizing arbitrary domination, maximizing the sphere of individual freedom, and empowering that relative reason.36 Alongside balancing different branches, Schmitt argues there is a second facet of the distributional principle: an agonistic competition among ideas should be instituted to allow the cunning of reason to operate “behind the back” of the legislative.37 The relative rationalism of deliberation will separate out less reasonable laws and decisions like a

31 Schmitt, Constitutional Theory, 65. 32 Schmitt, Constitutional Theory, 169-170, 205; Carlo Galli, "Carl Schmitt's Antiliberalism: Its Theoretical and Historical Sources and Its Philosophical and Political Meaning," Cardozo Law Review 21, no. 5-6 (2000): 1598-1600. 33 Schmitt, Constitutional Theory, 198. 34 Schmitt, Constitutional Theory, 170; cf. Max Weber, Economy and Society: An Outline of Interpretive Sociology 2vols., vol. 2 (Berkeley: University of California Press, 1978), 652. 35 Schmitt, Constitutional Theory, 202-212. Chapter 6 discusses his rights typology. 36 Schmitt, The Crisis of Parliamentary Democracy, 39-41; Schmitt, Constitutional Theory, 220-234. 37 Schmitt, Der Hüter der Verfassung, 88, 101. Hegel argues the “cunning of reason” operated behind individuals’ backs. Schmitt plays off Hegel: the cunning of the idea leads reason to manifest in parliamentary deliberations.

Page | 86 Leviathan Run Aground: Chapter 3 centrifuge.38 Because of this rationalism, Schmitt believes the bourgeois Rechtsstaat realizes natural law, at least in that narrow “relatived” form.39 Finally, the state, especially the legislative branch, should be transparent to allow its citizens to scrutinize it, thereby minimizing its arbitrary power.40 Publicity will generate accountability and produce a “public” opinion and popular consensus on the common good.41 The state, therefore, ends up representing the interests of the entire political community.42 Thus, this distributive principle of Liberté minimizes state power by balancing it against itself in three different ways: balancing among the state’s three branches, the rational of political deliberation, and the public accountability of the state.

In sum, both the organizational and distributional principles aim to concretize the decision for Liberté by guaranteeing individual freedom to form opinions and beliefs with minimal interference by the state. Schmitt goes on to argue that the decision for Liberté culminates in a theoretical distinction between state (a sphere of constraint) and society (a sphere of “private” individual freedom).43 The individual precedes the state.44 This decision produces a series of antitheses that he thinks are the crux of liberal politics: state/society; executive and administration/the people; executive/legislative; politics/society (as religion, culture, and economics); and domination and power/freedom and right.45

But, although it is a proper political decision, Liberté yields only partial state form.46 The organizational and distributive principles do not yield a definite state form. They only limit it, producing a negative state form that Schmitt calls “the bourgeois Rechtsstaat.” And he argues the bourgeois Rechtsstaat can be paired with positive state forms as diverse as monarchy, , parliamentarism, or democracy. But, regardless of whichever positive state form is actually constituted, Schmitt argues the political decision for Liberté takes precedence over any secondary decision on state form. In fact, state form tells very little about the substantive purpose of the state – it merely specifies the organization of the state’s constituted power. And Schmitt’s distinction between the end of the state and the organization of its constituted power is important.

Historically, Schmitt argues, the decision for Liberté has been paired with parliamentary democracy. Parliament represented both “the people” as a whole and the “natural” process of the formation of the people’s legitimate political will, the extent to which it reflected the state’s

38 Schmitt, Constitutional Theory, 186, 235; Carl Schmitt, "The Plight of European Jurisprudence," Telos 83(1990): 48-49. 39 Schmitt, Constitutional Theory, 181-182, 184; Schmitt, Legality and Legitimacy, 4. 40 Schmitt, The Crisis of Parliamentary Democracy, 37-39; Schmitt, Constitutional Theory, 205-206, 337-338. 41 Schmitt, The Crisis of Parliamentary Democracy, 44-45; Schmitt, Constitutional Theory, 184, cf. 165, 106, 195-196, 250-252. 42 Schmitt, Constitutional Theory, 334-335, 341; Schmitt, The Crisis of Parliamentary Democracy, 46, 47-48 (cf. 35- 36). And, in fact, the Weimar Constitution was designed exactly according to this principle of representation. 43 Schmitt, Constitutional Theory, 203, 235-237; Schmitt, Der Hüter der Verfassung, 73. 44 Schmitt, Constitutional Theory, 112-114, 169, 202. 45 Schmitt, Der Hüter der Verfassung, 79. 46 Schmitt, Constitutional Theory, 78, 169.

Page | 87 Leviathan Run Aground: Chapter 3 metaphysical origins.47 Parliamentary democracy is legitimate because it institutionalizes the distributional principle best. And Schmitt believes parliament worked politically in the 19th century – it was a legitimate reflection of the political goals of the state because it actually realized that goal of Liberté. And Renato Cristi writes that “when he stated the “early liberal Rechtsstaat…still subscribed to a Weltanschauung and was capable of a political confrontation,” Schmitt could not have come up with a more flattering observation with regard to [19th century] liberalism.”48 Schmitt made this argument in 1935, long after masking his “vehement illiberalism” would have lost all meaning.49 Not only did Schmitt believe liberal institutions worked, but parliament guarded it against state intervention and served as the legitimate guardian of the constitution on behalf of society.50 But the legitimacy of parliamentary democracy hinges on its instrumental value in realizing the political end of the state, here Liberté. Accordingly, if it failed to fulfill its role within the distributional principle, then either its structure or the institution itself would need to be revisited in light of that higher political commitment.

Schmitt concludes that the “size” of the 19th century state adjusted to match its political decision. The state’s role, beyond guaranteeing its constituents’ freedom through its two principles, was limited to enforcing law and it shrank accordingly,51 thereby maximizing individual freedom and fostering the rule of reason. For Schmitt, this neutral state adopted the maxim laissez-passer with regard to substate beliefs and values, no matter which sphere they fall under.52 Carlo Galli describes Schmitt’s conception of the state as passively neutral, meaning it merely executes formally legal rules, without regard to substantive values.53

2. The 19th Century State under the Strain of Modern Mass Democracy

In 1928, Schmitt wrote “After half a century, all the demands of the German liberal bourgeoisie of 1848 and from the period of the conflict of 1862 to 1866 came to fruition…Now their demands were realized, but meanwhile the political and social situation was fully changed and their fulfillment acquired a different sense than it would have had fifty years before…the success that the German bourgeoisie had achieved with the introduction of parliamentary government in

47 Cf. Mehring, "Liberalism as a "Metaphysical System"," 117-120. 48 Cristi, Carl Schmitt and Authoritarian Liberalism, 156. 49 Carl Schmitt, "Was Bedeutet der Streit um den „Rechtsstaat"? (1935)," in Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916-1969, ed. Günter Maschke (Berlin: Dunker & Humblot, 1995), 126. 50 Schmitt, Der Hüter der Verfassung, 78; Carl Schmitt, "Die Wendung zum Totalen Staat (1931)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923-1939 (Berlin: Dunker & Humblot, 1988), 150. 51 Schmitt, "Die Wendung zum Totalen Staat (1931)," 150-152. 52 Schmitt, Der Hüter der Verfassung, 111-114. 53 Galli, La Genealogia della Politica, 367-368. But Galli stops short from connecting his observation to Schmitt’s broader state theory. Galli, La Genealogia della Politica, 364ff. Passive neutrality is really just the surface of Schmitt’s quantitatively total state and the Relative Constitution. Despite its “passive” neutrality, Schmitt thought this “neutral and agnostic state” worked in the 19th century. Legitimacy was based on (relative) natural reason in that epoch.

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Germany was in a certain sense enjoyed posthumously.”54 He believed that, by the time Germans achieved the liberal democratic state, it could no longer contain its content. Modern mass democracy had turned liberal democracy into Frankenstein’s monster, overpowering its creators and pursuing its own course.

In writing this, Schmitt has in mind the revolutions of 1848 in which the middle and working classes united against the European . But, he stresses, this union was only a negative alliance. Once the monarchies they opposed were overthrown, their positive political goals collided and produced no stable political order. The revolution continued by restoring authoritarian rule across Europe. Schmitt thought this showed how unchecked (mass) democracy appeared to be too capricious and irrationally driven to ally with liberal values. And Schmitt believes tensions between liberalism and democracy only became more pronounced in the 20th century. In particular, the rise of philosophically justified “irrationalism,” politicized by Sorel and mobilized in movements like fascism and bolshevism particularly alarmed Schmitt.55 Although the English translation is titled ‘The Crisis of Parliamentary Democracy,’56 In his preface, Schmitt writes this crisis is actually threefold: of mass democracy, the state, and parliament.57 But its root was neither parliament nor the state. Mass democracy was consuming parliament, and turned its democratic legitimacy and positive law against the state. 20th century mass pathos had supplanted 19th century relative reason.58 Schmitt concludes his 1926 preface noting that, even if fascism and bolshevism were contained, the crisis of the modern state would remain until the problem of mass democracy was overcome. This section outlines how Schmitt saw “modern mass democracy” as the cause of Weimar’s crisis. a. The Interrupted Dream of Natural Law: Old Gods Ascend from Their Graves

Fin-de-siècle Europe was characterized by a strong reaction against the “decadence” of the previous century. Toward the end of the 19th century, movements fed up with Enlightenment rationalism, positivism, and “bourgeois” society trumpeted counter-virtues of nihilism, irrationalism, and emotionalism. They aimed to sweep the legs out from under classical liberal ideas and values. These movements and their goals deeply affected Schmitt, who described them as “polytheistic” and “irrationalist.”

54 Schmitt, Constitutional Theory, 357-358. 55 Schmitt, The Crisis of Parliamentary Democracy, 76. 56 Literally, it reads “the intellectual-historical situation of today’s parliament.” Kennedy’s title is excellent and I do not seek to criticize her work. But it must be emphasized the crisis is not merely of parliamentary democracy. 57 Schmitt, The Crisis of Parliamentary Democracy, 15-16; Schmitt, Legality and Legitimacy, 27-36. 58 Schmitt, The Crisis of Parliamentary Democracy, 13. This book’s structure is noteworthy. Schmitt ends the first chapter arguing democracy can ally with dictatorship. After writing parliamentarism has been corrupted by mass parties in the second chapter, he turns to two instances of democracy’s alliance with : Marxism (rationalist) and bolshevism and fascism (irrationalist). Schmitt, The Crisis of Parliamentary Democracy, 17; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 16, 35, 154-156; Kelly, The State of the Political, 196, 245.

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Schmitt’s use of the adjective polytheistic to describe them is important. It most likely comes from Weber’s “Science as a Vocation.” Weber had argued that, as knowledge of ‘scientific’ facts, particularly causal laws, increased, human life was correspondingly robbed of substantive meaning. Faith was pushed further into the realm of irrationality. Simultaneously, increasing social and intellectual complexity resulted in greater specialization. Along with the annihilation of transcendent, objective meaning, deepening specialization resulted in plural irreconcilable value-spheres – “warring gods” – any of which an individual might serve.59 Thus, disenchantment did not annihilate belief altogether. It just forced it inwards in a process of romantic, subjective mystification. It undermined the foundations of external authority and crystallized the hiatus irrationalis, between knowledge of facts and knowledge of “unscientific” things, like values and metaphysics.60

Weber had argued modern “polytheism” came about through the individualization of belief and values.61 As belief was forced inwards, it pluralized democratically.62 Seemingly paradoxically, disenchantment leads to this polytheism. Individuals were on their own to determine what meaning (if any) the world had. But Weber worries polytheism and the loss of objective values, coupled with modern scientific epistemology, undermined the possibility of meaningful life altogether. In Weber’s account, value pluralism and nihilism, or polytheism (‘warring gods’) and atheism (the death of god), appear to be two sides of the same coin.63 There is no longer any authoritative truth. All that matters is the degree to which a particular conviction affects an individual. And individuals are surrounded by a myriad of conflicting values, any of which they may serve. But, regardless of whichever “god” one ultimately serves, sober reflection reveals it to be arbitrary and groundless. Thus, Weber argues, although there are still “gods” in modernity, they are disenchanted.64

As I argued earlier, the disenchantment of the world and the rise of modern “polytheism” disturbed Schmitt as much as it had Weber.65 And he believed Weber’s discussion of disenchantment (especially when framed by terms like polytheism) was really an argument about “political theology.”66 Building on Weber’s account, Schmitt argues reason itself went into a

59 Max Weber, "Science as a Vocation," in From Max Weber: Essays in Sociology, ed. H. H. Gerth & C. Wright Mills (New York: Oxford University Press, 1959), 152-153. 60 Weber, "Religious Rejections of the World," 328. 61 Weber, "Science as a Vocation," 148; Max Weber, "Between Two Laws," in Political Writings, ed. Peter Lasswell (Cambridge: Cambridge University Press, 1999), 99. 62 Weber, "Science as a Vocation," 147. 63 Cf. Galli, La Genealogia della Politica, 91-92. 64 Weber, "Science as a Vocation," 148-149. 65 Gontier (correctly) discusses Schmitt’s decisionism in comparison to Voegelin’s belief that political order is rational willing toward the good. Similarly, behind Schmitt’s decisionism is Weberian disenchantment. A decision is ex nihilo precisely because all foundations have been uprooted. Thierry Gontier, "From “Political Theology” to “Political Religion”: Eric Voegelin and Carl Schmitt," The Review of Politics 75(2013): 34, cf. 33-36. 66 Cf. Carl Schmitt, Die Militärzeit: 1915 bis 1919: Tagebuch February bis Dezember 1915, Aufsätze und Materialien (Berlin: Akademie Verlag GmbH, 2005), 15-16; G. L. Ulmen, "The Sociology of the State: Carl Schmitt and Max Weber," State, Culture, and Society 1, no. 2 (1985): 20, 44; G. L. Ulmen, "Introduction to Roman Catholicism and

Page | 90 Leviathan Run Aground: Chapter 3 crisis in the 20th century: there was no longer any consensus on what was “rationally correct” or whether reason itself was legitimate.67 Schmitt even peppers his otherwise sober and systematic Constitutional Theory with lamentations about the loss of natural reason and natural law. He writes the crisis of Weimar’s constitution is rooted in the loss of the “metaphysical assumptions of the bourgeois belief in natural law,”68 and that “the old liberal belief” in the “sovereignty of reason” is lost.69 In other texts, he laments that the belief in “Cartesian idées générales,” i.e. transcendent truth, has evaporated.70 In all of these cases, he portrays a crisis in reason itself as the underlying cause of Weimar’s political crisis. Schmitt suggests 1848 was the turning point for reason. It was then, Schmitt argues, quoting Bernhard Windsheid’s aphorism, “the dream of natural law [was] over.”71 From then on, objective reason and truth, Platonic Forms, etc. etc. were in full retreat. Deliberative reasoning and substantive rationality, he believed, had been killed along with god.

Schmitt was not unique in thinking this way. The triumph of irrationalism was discussed, and lamented, by many other important figures of that time. For example, – a thinker about as far from Schmitt as possible – wrote in 1932,

The eighteenth century is imbued with a belief in the unity and immutability of reason. Reason is the same for all thinking subjects, all , all epochs, and all cultures…For us, the word “reason” has long since lost its unequivocal simplicity, even if we are in essential agreement with the basic aims of the philosophy of the Enlightenment. We can scarcely use this word any longer without being conscious to its history; and time and again we see how great a change of meaning the term has undergone. This circumstance reminds us how little meaning the terms “reason” and “rationalism” still retain, even in the sense of purely historical characteristics.72

Like Cassirer, Schmitt saw reason disintegrating in the 20th century. And like Cassirer, he thought the political chaos of the early 20th century was a product of that disintegration. Metaphysical disenchantment was driving political instability. Karsten Fischer draws attention to Schmitt’s relation of secularization and democracy.73 Indeed, they go hand in hand in Schmitt’s

Political Form," in Roman Catholicism and Political Form (Westpoint: Greenwood Press, 1996), xixff. Cf. NRW265- 21861. At the end of his life, Schmitt described Weber’s work as “political theology – all the way down.” 67 Schmitt, The Crisis of Parliamentary Democracy, 3, 5, 50, 76. 68 Schmitt, Constitutional Theory, 65. 69 Schmitt, Constitutional Theory, 106; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 149. 70 Schmitt, Legality and Legitimacy, 10-11; Carl Schmitt, "Nationalsozialistisches Rechtsdenken," Deutsches Recht 4, no. 10 (1934): 225; Cf. Mehring, "Liberalism as a "Metaphysical System"," 110, fn. 119. 71 Schmitt, "The Plight of European Jurisprudence," 44-45; cf. 44-64. 72 Ernst Cassirer, The Philosophy of the Enlightenment, trans. Fritz C. A. Koelln and James P. Pettegrove (Princeton: Princeton University Press, 2009), 6. 73 Karsten Fischer, "Hobbes, Schmitt, and the Paradox of Religious Liberality," Critical Review of International Social and Political Philosophy 13, no. 2-3 (2010): 400; cf. David Dyzenhaus, "Leviathan in the 1930s: The Reception of Hobbes in the Third Reich," in Confronting Mass Democracy and Industrial Technology: Political and Social Theory from Nietzsche to Habermas, ed. John P. McCormick (Durham: Duke University Press, 2002), 174. But Fischer reverses the relationship.

Page | 91 Leviathan Run Aground: Chapter 3 account. But, pace Fischer, it was not democracy that led to disenchantment and secularism for Schmitt but disenchantment that led to democratization. The Protestant individuation of authority could not be limited to just theological belief – theological change could not be closed off from other spheres of life. This individuation of authority had a corresponding political effect. It also gave rise to democracy’s displacement of traditional forms of legitimacy.74 And thus concurrently with the erosion of authoritative metaphysical and moral truths, political self- determination arose.

And Schmitt believed both forms of disenchantment were state-destroying. At the end of The Crisis of Parliamentary Democracy, he wrote “the theory of the myth is the most powerful symptom of the decline of the relative rationalism of parliamentary thought.” 75 The rise of irrationalistic philosophy, celebrating impulse and spontaneity over reason and thought (begun by Nietzsche and carried on, for example, in the work of and his “philosophy of life”76) was the main “theological” source of the breakdown of older forms of political order.77 It had undermined whatever vestiges of natural law and objective reason remained. "It was politicized by Sorel, whose political ideals were in turn adopted by irrationalist movements – fascism and communism.78 Between the two, Schmitt argued fascism was stronger. But he argued the closest thing to genuine community either could generate was fanaticism – community based on pathos, rather than reason or value.79 He did not think either political community could provide lasting grounds for order and stability. Neither would withstand the centrifugal effects of its irrationalism. Thus, Schmitt thought, politicized “irrationalism” was dangerous because it undermined whatever and community the state provided. The pathos that irrationalist community thrived on and encouraged led to disintegrative pluralism, which, “for political theology, is polytheism.”80

At the same time, Schmitt thinks Laski’s apolitical pluralism represents the flipside of this irrationalist political theological tendency.81 The state, according to Laski, has no priority over any other social group. There can only be “moral” authority, which appears politically as an

74 Schmitt, The Crisis of Parliamentary Democracy, 22. 75 Schmitt, The Crisis of Parliamentary Democracy, 76. 76 I thank Nadia Urbinati for urging me to emphasize that there was a major irrationalist turn in Europe then. Figures like Spengler, Nietzsche, Schopenhauer, James, Freud, Jacobi, Kierkegaard, and Dilthey were all, to a varying extent, bound into the irrationalist turn against Enlightenment thought. 77 Schmitt, The Crisis of Parliamentary Democracy, 66-68; Carl Schmitt, "State Ethics and the Pluralist State," in Weimar: A Jurisprudence of Crisis, ed. Arthur Jacobson and Bernhard Schlink (Berkeley: University of California Press, 2000), 302. The Catholic Church (unsurprisingly) condemned Bergson’s philosophy. 78 Cf. Schmitt, "State Ethics and the Pluralist State," 319. 79 Cf. Mehring, "Liberalism as a "Metaphysical System"," 115; Peter C. Caldwell, "Controversies over Carl Schmitt: A Review of Recent Literature," The Journal of Modern History 77, no. 2 (2005): 371. Mehring rightly draws attention to Schmitt’s qualified “endorsement,” if it can even be called that, of fascism: Schmitt believed that, although fascism may have been preferable to bolshevism, both were ultimately too dangerous and destructive of stability and community. See Chapter 4 for a critique of attempts to depict Schmitt as some sort of irrationalist. 80 Schmitt, The Crisis of Parliamentary Democracy, 76. 81 Schmitt, "State Ethics and the Pluralist State," 197.

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“unordered, series of equally valid, social relationships.”82 Schmitt thinks pluralism shares with fascism and bolshevism a tendency to undermine the rule of reason.83 He believes it empowers pathos individualistically in the same way fascism and bolshevism empower it communally. In fact, because of the metaphysical similarities he sees between the two movements, Schmitt later writes he was completely unsurprised that Laski “precisely in the critical period of 1931-1932 converted from his original liberal individualism to Marxism.”84 But while Laski’s theory was genuinely pluralistic and individualistic, Schmitt thinks fascism and bolshevism smuggle in dictatorship, masking it by its ability to manipulate mass pathos.

Parallel to these political manifestations of 20th century disenchantment, Schmitt notes there is also the “a-rationalism,” so to speak, of technicity. Bureaucratic administration is another symptom of disenchantment. Bureaucracy appears to be a self-administering system, operating according to its own formal rules. It thus seems to be a form of “rule by nobody” and to lack the domination characteristic of politics.85 But, as discussed in the previous chapter, Schmitt believes technicity, which includes bureaucratic administration, is merely a mask for tyrannical domination – it provides that domination with the legitimating veneer of technical neutrality.86 Schmitt is skeptical there could really be any self-administering order.87 What makes technicity “irrational” is both its inability to step outside its original programming and how its ostensive technical rationality ends up either twisting against its original ends as it becomes self-serving or being exploited by disingenuous powers standing above its operations.

In general, Schmitt believed disenchantment’s full impact was felt in the 20th century as reason would no longer converge on a single point. The 20th century embraced irrationality and affect. Politically, disenchantment produced the individualization of authority, the rise of plural, politically irreconcilable worldviews, and could find no basis for legitimacy besides (democratized) pathos. Schmitt believed, insofar as liberal institutions are premised on reasonability or discursive rationality, this crisis in reason had deep repercussions. Communal and individualistic irrationalism and political pluralism along with technical a-rationalism seemed to be annihilating any basis for order and authority, even a minimal “relative rationalism.” Thus, pace Kalyvas, who argues Schmitt had “renounced the political significance of speech as a means of will formation,”88 Schmitt actually thought modern mass democracy had robbed speech

82 Schmitt, "State Ethics and the Pluralist State," 196. Schmitt remarks that pluralism should have been the dominant political doctrine in postwar Germany. But, ironically, its attacks on political authority prevented it from presenting a meaningful, unified front and it disintegrated under its own centrifugal individualism. It ended up being merely a negative, antipolitical movement. Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 3rd ed. (Berlin: Duncker & Humblot, 1963), 119-120. 83 Cf. Jorge E. Dotti, "Schmitt Reads Marx," Cardozo Law Review 21, no. 5-6 (2000): 1483. 84 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 119. This remark refers to pages 36-37 of the English edition. 85 Schmitt, Der Hüter der Verfassung, 149-156; Schmitt, Legality and Legitimacy, 11-12. 86 Cf. Schmitt, "The Age of Neutralizations and Depoliticizations," 141-142. 87 Carl Schmitt, "Die vollendete Reformation," Der Staat (1963): 67-68. 88 Kalyvas, Democracy and the Politics of the Extraordinary, 125.

Page | 93 Leviathan Run Aground: Chapter 3 of political significance by undermining deliberative reasoning altogether. The legitimation crisis of the 20th century state was a product of disenchantment. 19th century institutions had not been adapted to meet 20th century conditions, so instead of producing political unity and order, they were aggravating social tensions and political instability.

Schmitt writes an institution can persist long after its “Idea” has lost legitimacy, however.89 The existence of an institution gives it temporal “momentum,” which keeps it alive even after its basis and legitimacy have decayed or changed. 19th century political institutions could persist under a different context – but that changed context would bear strongly on how they functioned. b. Modern Mass Democracy: Warring Gods in the Arena of Parliament

Schmitt believed Weimar demonstrated this temporal momentum: “[Weimar’s parliament] lost its moral and intellectual foundation and only remained standing through sheer mechanical perseverance as an empty apparatus.”90 But, quite differently than serving the liberal or democratic ends for which they had been designed, Schmitt argues Weimar’s 19th century institutions had instead become tyrannical.91 Its parliament was twisted as illiberal and antidemocratic movements colonized it.92

Schmitt laments how the nature of parliament has been perverted, writing “a modern election is no longer an election, but a technique to put the masses in motion, by virtue of which they are exposed to a committee.”93 He writes universal suffrage gave (the strongest) voice to the least intelligent and educated, the least capable of reason, the least likely to revise their beliefs in light of better arguments, and the most susceptible to emotional and psychological manipulation.94 It privileged the lowest classes (or whoever was manipulating them) simply because of their numerical superiority.

But the deep problem of modern mass democracy was not mass participation in itself. He thought all these changes in democracy were simply dropped into parliament institutions that were no different than they were 80 years ago when suffrage was more restricted. Yet mass democracy affected the constitution of parliament. As reasonability and rationality entered into crisis, the parliamentarism that presupposed those ideals entered into crisis too. Pluralism led to irreconcilable Weltanschauungen among representatives. There was no longer a “relatively rational” point at which representatives’ deliberations could converge. Thus, parliament no longer collected “particles of reason.” There was no cunning of reason. Parliament instead

89 Schmitt, The Crisis of Parliamentary Democracy, 3, 8. 90 Schmitt, The Crisis of Parliamentary Democracy, 21; Cf. Schmitt, Legality and Legitimacy, 23-24. Mehring, "Liberalism as a "Metaphysical System"," 118-122. See Smend’s remark “ideology can decay and integration remain.” Mehring, "Liberalism as a "Metaphysical System"," 118. 91 Schmitt, Legality and Legitimacy, 20. 92 Schmitt, Political Romanticism, 13; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 80. 93 Carl Schmitt and Rudolf Smend, „ uf D G voll St aß D s Öff tl R ts“ fw s l Ca l Schmitt – Rudolf Smend 1921-1961 (Berlin: Duncker & Hmblot, 2010), 40-41 (my translation). 94 Schmitt, Constitutional Theory, 280, 334-337.

Page | 94 Leviathan Run Aground: Chapter 3 fostered unreason and disunity, its members obstinately opposed one another, struggling to gain enough votes to impose their particular Weltanschauung with positive law. There was not even agreement on the reasonability or legitimacy of the “rules of the game” itself.

Schmitt thought the deeper problem was the interaction of positive law and democratic legitimacy with political pluralism. He argued concentrations of private power disingenuously manipulated the masses to legitimate their particular political interests, turning the public sphere into a “Schauplatz,” an arena or forum, for them to vie for the domination over the community. Thus, dogmatically opposed Weltanschauungen erupting out of society could exploit the bourgeois Rechtsstaat’s value-neutrality in parliament by manipulating mass democracy. The masses could be whipped into a frenzy, granting a democratic veneer of legitimacy to a movement no matter the content of its Weltanschauung, which that movement could then use to enact with positive law. Parliamentary elections were thus reduced to mass mobilization through emotional manipulation. c. Manipulating Mass Democracy

As early as 1923, Schmitt discussed how an explosion of social-psychological work on crowds, parties, mass psychology, and other similar phenomena had changed the way the masses could be manipulated.95 While there was certainly voter manipulation before the 20th century, Schmitt thought “modern” techniques were qualitatively different. The advent of sociological and psychological science had greatly expanded the possibilities for manipulation.96At the same time, communications innovations broadened the reach of that power. Schmitt wrote “today, everyone knows how routinely and safely a massive “psycho-technical” apparatus can be used to mold the masses through propaganda and how easy it is to make moral pathos subservient to political intentions.”97 20th century scientific and technological advances yielded a powerful tool for private powers to shape “the people.”

Schmitt often raised concerns about how the media could be used to exploit the masses. He is particularly alarmed by visual media – enough to remark in Constitutional Theory that, in contrast to other forms, in film should not be protected.98 Its emotional power was simply too great to be left unregulated. This concern would be reproduced regarding television in his 1970 “Von der TV-Demokratie.”99 And although less so than visual media, he is

95 Schmitt was most influenced by Michels and Lippmann, to whom he sent Political Theology and The Crisis of Parliamentary Democracy. Carl Schmitt and Ludwig Feuchtwanger, Briefwechsel 1918-1935 (Berlin: Duncker & Humblot, 2007), 192-193; cf. Schmitt, The Crisis of Parliamentary Democracy, 6, 20; , Carl Schmitt, Thinkers of Our Time (London: Claridge Press, 1990), 20. 96 Schmitt, The Crisis of Parliamentary Democracy, 6, 20; Schmitt, Constitutional Theory, 206, 275. 97 Schmitt, "Macchiavelli. Zum 22. Juli 1927," 104-105. My translation. 98 Schmitt, Constitutional Theory, 206-207. He adds the state must control it and either depoliticize it or, more actively, “put it in service of the existing order.” 99 Carl Schmitt, "Von der TV-Demokratie. Die Aggressivität von Fortschritts," Deutsches Allgemeines Sonntagsblatt, June 28 1970.

Page | 95 Leviathan Run Aground: Chapter 3 similarly concerned about the radio’s potential for abuse.100 Moreover, he argues, because film, radio, and television were all monopolies or, at best, oligarchies, they would inevitably be used by those who control them to advance their private interests. Schmitt held printed media in a higher regard.101 He believes it was once an essential institution for spreading information and helping individuals to develop their opinions and beliefs. Yet, like with radio and film, he is concerned that printed media in the 20th century has become a tool of private powers.

In general, Schmitt argues mass media in the 20th century hardly helps to further individual freedom or to foster the cunning of reason. He writes that it particularly privileges the (politically irresponsible) interests of private elites by giving their voice disproportionate power.102 Although once essential for individual freedom and the rational formation of public opinion, Schmitt writes concentrations of private powers, augmented by technology, controlled all media and used it to “dominate public opinion” by the 20th century.103

The end for which private powers used the mass media was the main problem for parliamentary democracy. They manipulated “the immediate interests and passions” of the masses to win as much “legitimacy” as possible for their particular interests.104 In an age of monopolies and the collapse of the rule of reason, classical liberal freedoms like freedom of the press were bent against their original purpose.105 Far from advancing human freedom, technological innovation merely increased the potential for domination. But because of the belief in the qualities of these freedoms as freedoms (anyone is free to start their own press or film company; freedom could not create unfreedom), their perverted, undemocratic and illiberal use was overlooked.

Schmitt does not seem to think private monopolies controlling the most powerful means of the formation of public opinion would have been a political problem – except Germany was no longer politically homogeneous.106 The absence of political homogeneity led society to “self-

100 Carl Schmitt, "Weiterentwicklung Des Totalen Staats in Deutschland (1933)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles (Berlin: Dunker & Humboldt, 1988), 185-186. 101 Carl Schmitt, "Diskussion über Presse und öffentliche Meinung," in Verhandlungen des Siebenten Deutschen Soziologentages: vom 28. September bis 1. Oktober 1930 in Berlin o t ge und Diskussionen in der Hauptversammlung und in den Sitzungen der Untergruppen, ed. Deutsche Gesellschaft für Soziologie (Tübingen: J.C.B. Mohr, 1931), 57-59; Schmitt, Der Hüter der Verfassung, 84-87; Schmitt, Legality and Legitimacy, 87; Schmitt, Constitutional Theory, 206; Carl Schmitt, "Strong State and Sound Economy," in Carl Schmitt and Authoritarian Liberalism, ed. Renato Cristi (Cardiff: University of Wales Press, 1932), 217, 219. 102 Schmitt, " Diskussion über Presse und öffentliche Meinung," 57-58; Schmitt, "The Age of Neutralizations and Depoliticizations," 139-140; Schmitt, "Konstruktiv Verfassungsprobleme," 58-59; Cf. Ernst-Wolfgang Böckenförde, "The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory," in Law as Politics: Carl S m tt’s C t qu of L al sm, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 47; Scheuerman, Carl Schmitt, 94. 103 Schmitt, The Crisis of Parliamentary Democracy, 20; Schmitt, Der Hüter der Verfassung, 87. 104 Schmitt, The Crisis of Parliamentary Democracy, 6-7. 105 Schmitt, The Crisis of Parliamentary Democracy, 20; Schmitt, Der Hüter der Verfassung, 83-84; Schmitt, " Diskussion über Presse und öffentliche Meinung," 57-58; Carl Schmitt, Gespräch uber die Macht und den Zugang zum Machthaber (Klett-Cotta, 2012), 16. 106 I discuss Schmitt’s account of homogeneity in depth in the next chapter.

Page | 96 Leviathan Run Aground: Chapter 3 organize” to fill that absence.107 Mass manipulation bore the imprint of politicized interests controlling the media. The media, not to mention the masses, had become objects to be struggled over for the sake of political domination of the state by one segment within it.

In the case of Weimar, Schmitt thought five irreconcilable total movements had politicized parliament and turned it into that Schauplatz.108 He thought parliament had become an arena in which warring gods met but never produced any legitimate political decisions.109 Each movement, and its corresponding party, was inflexibly organized according to its particular Weltanschauung.110 Each had a massive organizational apparatus devoted to maintaining, reinforcing, and expanding its base and pursuing its factional interests, including newspapers, propaganda machines, bureaucracies and hierarchies, and, in most cases, even a private army.111 Because of this apparatus, “[the movements] encompassed their members totally in respect to their worldview and their economic and other perspectives [and] transform all jurisdictions into points in their power constellations.”112 They enabled a “collusion of press, party, and capital” to undermine individual freedoms by subjecting them to psycho-technical manipulation and, when those private interests were opposed to the state, to undermine its authority as well. Schmitt argues these movements were total. And several of them, in particular the Communists and Nazis, were totally opposed to the Weimar state and constitution.

To Schmitt, the emergence of total movements represented a qualitative shift in the relationship between state and society. They undermined the state’s authority and unity.113 No longer was the political community united by the protection of individual Liberté against infringement. The state instead was becoming a tool used precisely to infringe upon Liberté. It could no longer be the 19th century laissez-passer state. And parliament was no longer of the decision. Comprised of irreconcilably opposed total movements, some openly hostile and impervious to reason even,114 parliament had become a threat to be guarded against. Schmitt believed there was no more “cunning of reason” because there was no willingness to listen or to compromise.115

But Schmitt does admit qualitatively different sorts of compromise were occurring in parliament. Political compromise for the sake of the common good was replaced by private “business”

107 Schmitt, Legality and Legitimacy, 29. 108 Schmitt, "Strong State and Sound Economy," 220. Besides the Nazis (NSDAP) and Communists (KPD), Schmitt’s other three movements must be the SPD, the Catholic Zentrum, and the conservative nationalists (DNVP). 109 Schmitt, Der Hüter der Verfassung, 85; Schmitt, Constitutional Theory, 341-342; cf. , Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge: The MIT Press, 1988), 70, 84-85. 110 Schmitt, Der Hüter der Verfassung, 84, 88, 90; Schmitt, Legality and Legitimacy, 87ff. That is, the locus of homogeneity has shifted from the political community as a whole to a plurality of movements in society. 111 Schmitt, Der Hüter der Verfassung, 83; Schmitt, "Strong State and Sound Economy," 219. Even the SPD had a paramilitary army, the Reichsbanner Schwarz-Rot-Gold. 112 Schmitt, Legality and Legitimacy, 87. 113 Schmitt, Constitutional Theory, 275-276; Schmitt, "Strong State and Sound Economy," 219. 114 Schmitt, Der Hüter der Verfassung, 79-80. 115 Schmitt, Der Hüter der Verfassung, 88, 101.

Page | 97 Leviathan Run Aground: Chapter 3 compromise.116 But quid pro quo bargaining to further private interests had nothing to do with the community as a whole.117 Parliament was at best an arena for the maximization of total movements’ self-interest. But, Schmitt cautions, while business compromises might yield temporary unity, it would fracture once there was nothing left to be gained.

Schmitt also thinks parliament’s procedural attributes, namely rational-legal legitimacy and democratic procedures, were perverted by this crisis in reason.118 When rationality itself is in crisis, rational-legal legitimacy enters into crisis too. He argues when rational-legal legitimacy was linked to the rationality of natural law, even its “relatively rational” 19th century form, the laws produced in parliament really were legitimate. Parliamentary acts reflected that cunning of reason. But the crisis in reason empties formal law of its rational content.119 He doubts laws passed merely procedurally by a broken and factionalized parliament will be seen as legitimate by the entire political community. It is merely positive law. But this sort of positive law can never move beyond its sophistic basis in power: no matter the quantity of votes backing it, laws opposing the basic Weltanschauung of a politicized movement will never appear legitimate to that movement. They are just the product of democratic domination. Schmitt argues parliament itself becomes a place where these movements seek to use merely positive law to impose one substantive worldview on the others. Liberalism on communists, communism on fascists, fascism on liberals – he doubts not a single one of these movements would consider the major political changes sought by another majority to be legitimate. Their visceral opposition would layer resentment upon resentment and tensions would build as movements sought to prevent the others from dominating them while simultaneously propagating their own Weltanschauungen through now disenchanted parliamentary procedures.

In sum, Schmitt thinks 20th century parliamentary legislation has become “the empty functionalism of momentary majority decisions.”120 Legal legitimacy has been replaced by mere “economic-technical” proceduralism.121 Because this “legitimacy” was merely the satisfaction of formal requirements, parliament produced popular decisions and laws – but not legitimate decisions and laws.122 And since he thought mass democracy was a question of who was best at manipulating mass emotionalism, parliament ultimately becomes a struggle amongst the greatest private powers. McCormick writes this “technical” attempt at neutralization merely papered over the tensions among the plural Weltanschauungen and failed to create any substantive points of agreement.123 Democratic equality to participate politically and neutrality with regard to political

116 Schmitt, "Strong State and Sound Economy," 220-221. 117 Schmitt, The Crisis of Parliamentary Democracy, 6. 118 Schmitt, Constitutional Theory, 106; Schmitt, Legality and Legitimacy, 97. 119 Schmitt, Legality and Legitimacy, 11, 97. 120 Schmitt, Legality and Legitimacy, 14. 121 Schmitt, The Crisis of Parliamentary Democracy, 21; Schmitt, Constitutional Theory, 306; Schmitt, Legality and Legitimacy, 48. 122 Schmitt, Legality and Legitimacy, 43; Cf. Schmitt, Constitutional Theory, 303-307. 123 McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 42-46, 69-72, 166ff.

Page | 98 Leviathan Run Aground: Chapter 3 goals provided total movements the opportunity to colonize the state and promulgate their very political values, all under the guise of democracy.124 Parliament thus undergoes a transformation: from the qualitative representation of a society’s underlying political homogeneity to the quantitative advocacy of the private but politicizing interests of its factions.125 Parliament became a political arena in which Weimar’s “disenchanted gods” competed.

Schmitt thinks it was Sorel who buried the last vestiges of natural law. He did so when he declared irrationality and intuition virtues and urged his followers to avoid all deliberation, any reasoning, with the “bourgeoisie.”126 Victory could only come through reason’s antithesis: spontaneity and direct violence.127 Movements like bolshevism and fascism were concrete cases of this political shift toward irrationality.128 These total movements did not care about relative rationalism or Liberté. They had far different beliefs and agendas in parliament. Unable to deny the validity of extremists’ unconstitutional beliefs because of its agnostic value-neutrality, the liberal democratic state not only condoned extremists’ participation but also provided for its own political destruction: if extremists could obtain a majority in parliament, they could not only impede parliamentary action, they could positively legislate their values or even entirely abrogate the liberal Rechtsstaat. For a corrupted stato neutrale ed agnositco, antidemocratic and illiberal beliefs, no matter how insane, were “right” as long as they obtained a sufficient quantity of votes. Schmitt concludes Weimar’s relativized, value-neutral democracy had plunged the state into a dangerous form of political pluralism.129 d. Structural Transformation: The Birth of the Quantitatively Total State

Schmitt writes that the procedural value-neutrality of the 20th century liberal democratic state made it actually just an extension of whichever particular social, economic, religious, or cultural belief dominated society most successfully at a given moment.130 As the state switched hands among these different total movements and as each sought to defend, entrench, and promulgate its own particular worldview, the degree of the state’s administration of society extended deeper

124 Schmitt, "Die Wendung zum Totalen Staat (1931)," 151-152; Schmitt, Legality and Legitimacy, 87-88; cf. Weber, Economy and Society, 2, 641-900; John P. McCormick, "Max Weber and the Legal-Historical Ramifications of ," Canadian Journal of Law and Jurisprudence 17, no. 1 (2004): 149-152; McCormick, "Identifying or Exploiting the Paradoxes of Constitutional Democracy? ," xiv. 125 Schmitt, Legality and Legitimacy, 27. Schmitt must have Kelsen in mind, who argued democratic relativism was a virtue. Cf. Hans Kelsen, Vom Wesen und Wert der Demokratie (Tübingen: J.C.B. Mohr, 1929), 101, 118. 126 Cf. Schmitt, The Crisis of Parliamentary Democracy, 69; Reinhard Mehring, Carl Schmitt: Aufstieg und Fall (München: C.H. Beck, 2009), 160. Some have argued Schmitt esteemed Sorel. (Stathis Gourgouris, "The Concept of the Mythical (Schmitt with Sorel)," Cardozo Law Review 21, no. 5-6 (2000); McCormick, Ca l S m tt’s C t qu of Liberalism: Against Politics as Technology, 16, 103-104, 191-192.). But Schmitt writes Sorel politicized Bergson, continued Bakunin’s tradition, valorized mass pathos, and was ultimately an irrationalist. Given how Schmitt despised all these, it seems difficult to reconcile an ostensive admiration for Sorel with Schmitt’s actual writings. Does Schmitt make any positive reference to Sorel?? cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 89. 127 Schmitt, The Crisis of Parliamentary Democracy, 71. 128 Schmitt, Legality and Legitimacy, 48. 129 Mehring, "Liberalism as a "Metaphysical System"," 113. 130 Schmitt, Der Hüter der Verfassung, 79.

Page | 99 Leviathan Run Aground: Chapter 3 and wider.131 It grew to the point where everything was political and within the state’s domain. Societal conflicts intensified as the range of state intervention expanded. Each movement risked being dominated if it did not obtain control over the state. Schmitt writes the 19th century antithesis of state and society had collapsed.132 They had fused and the nature of the state changed qualitatively. The state underwent a structural transformation [Strukturwandel].133 Although it was still conceived of as the 19th century laissez-passer state, it was instead total.

Yet Schmitt argues that any true or authentic state is de facto total.134 It is a qualitatively totality. A state is total when it is “strong enough” to determine what is “political” and to extricate itself from non-political spheres.135 Besides refraining from intervening in non-political spheres, the qualitatively total state was also capable of depoliticizing substate conflicts. Because it divorces itself from non-political spheres, it could legitimately act as a disinterested arbiter of social conflicts. Thus, this state was an adamant enforcer and guardian of the community’s political status but was otherwise a neutral judge.

Distorted by modern mass democracy, the 19th century bourgeois Rechtsstaat’s non-intervention and value-neutrality actually become tools of “negative” interventions on behalf of the strongest movements in society.136 A “strong, well-organized plural party system interposes itself between the state and its government on the outside and the mass of citizens on the other, and manipulates the monopoly of politics – that most astounding of monopolies, the monopoly of political mediation, the monopoly of the transformation of interests, which of course must exist, into the will of the state.”137 As the relative power of movements wax and wane in parliament, shifting demands of ruling parties cause laws and regulations to expand wider and deeper.138 This expansion results in a corresponding delegitimation of the state’s political authority. Clarity is lost over what is political, i.e. what falls under the state’s authority, and what is non-political – state and society fuse. As politicization progresses, the state determines large swaths of everyone’s life.139 In the end, Schmitt seems to argue, all feel the state dominating their lives and come to resent it. The competition among the total parties prevents the state from settling on any definite order and determining which spheres should be regulated and which left autonomous.140

131 Schmitt, Legality and Legitimacy, 92. 132 Schmitt, "Die Wendung zum Totalen Staat (1931)," 146-147. 133 Schmitt, Der Hüter der Verfassung, 80. Strukturwandel Is Schmitt’s term. 134 Schmitt, "Strong State and Sound Economy," 217.The concept “total state” has a charged meaning today. In 1928, when Schmitt was writing, the term did not have that connotation. 135 Galli, La Genealogia della Politica, 370, see in general 364-379. 136 Schmitt, Der Hüter der Verfassung, 80-82; Scheuerman, Carl Schmitt, 90. thus appears as the most irresponsible romanticism. Schmitt’s student Kirchheimer held similar views, albeit from a “leftist-statist” perspective. Cf. William E. Scheuerman, Between the Norm and the Exception: The and the Rule of Law (Cambridge: The MIT Press, 1994), 223. 137 Schmitt, "Strong State and Sound Economy," 219. 138 Schmitt, Der Hüter der Verfassung, 79; Schmitt, "Strong State and Sound Economy," 218-219. 139 Albeit in different forms according to each movement’s and each individual’s particular values. 140 Schmitt, "Strong State and Sound Economy," 227.

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Instead, it swells, first in one direction and then another, according to the will of whomever momentarily dominates parliament, consuming state and society like a cancer.141

Schmitt describes this process as the structural transformation from a qualitatively total state to the quantitatively total state, which potentially politicizes all society. It is quantitatively total because it is unprincipled. Because of its disoriented and incoherent instrumentalization, the state ends up politicizing everything. Yet, Schmitt adds, the quantitatively total state is not a state proper; it is really just a plurality of total movements.142 The distinction of qualitative and quantitative reflects the same dynamic he draws between substantive democracy and empty arithmetic functionalism.

Schmitt thought the sphere most interpenetrated with the state was the economy.143 And while each total party vied to use the state to shape its vision of “right” economic relations, the reverse was also true: state and economy have in fact become codetermining.144 Ostensibly private or social decisions in the economy had profound effects on the state, especially its military and defense, but also on core segments of industry, such as high finance and railroads.145 To explain the new relationship of state and economy, he appropriates Popitz’ concept of polycracy: a system of juridically autonomous and independent firms legally and formally operate outside the state’s discretion yet affect the state’s ability to function because they fulfill state responsibilities and affect the capacity of the state to support itself economically through taxation.146 Through powerful lobbying groups, these “polycratic” firms demand concessions from the state that further undermined its political autonomy.147 Schmitt advocated Popitz’ solution of instituting a non-state public sphere to rein in the economy but still keep it free from state intervention.148 He seemed to want to formalize the relationship between the non-state public (polycratic) sphere and the state itself in order to strengthen state authority and depoliticize those parts of society that fall outside its political scope. But this strand remains underdetermined in his work.

Schmitt argues that the plurality of total movements transformed the qualitative totality of the 19th century bourgeois Rechtsstaat, in which its neutrality guaranteed maximum individual freedom, into the quantitative totality of the 20th century Parteienstaat [party state], in which its neutrality merely masked those movements’ struggles to dominate. In conclusion, he argues two undesirable political outcomes unfold in parliament in a quantitatively total state. First, parliament becomes impotent, incapable of political action because parties too weak to impose

141 Schmitt, "Strong State and Sound Economy," 223. 142 Schmitt, "Strong State and Sound Economy," 219; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 140-141, 180; Heinz O. Ziegler, Autoritärer oder Totaler Staat (Tübingen: J. C. B. Mohr (Paul Siebeck), 1932), 8. 143 Schmitt, "Strong State and Sound Economy," 225-226; Schmitt, "Demokratie und Finanz (1927)," 86-87; Schmitt, Der Hüter der Verfassung, 82. 144 Schmitt, Der Hüter der Verfassung, 80. 145 Schmitt, Der Hüter der Verfassung, 107ff. 146 Schmitt, Der Hüter der Verfassung, 91-92, 107. Cf. Schmitt, Legality and Legitimacy, 142. 147 Schmitt, Der Hüter der Verfassung, 106. 148 Schmitt, "Strong State and Sound Economy," 224-225.

Page | 101 Leviathan Run Aground: Chapter 3 their will are nevertheless strong enough to create “negative majorities” and prevent parliament from accomplishing even the most minimal governmental functions, like passing budgets and emergency spending or addressing a crisis.149 More than mere harassment, these acts undermine the legitimacy of both parliament and the state as a whole as crises become aggravated by government inaction. Second, and far more problematic, parliament in a quantitatively total state commits apocryphal acts of sovereignty. This next section addresses this problem. e. potestas indirecta: Apocryphal Acts of Sovereignty in Parliament

The total value-neutrality of the Weimar Constitution, institutionalized through the “equal chance to obtain office,” guaranteed even movements deeply opposed to the Weimar constitution the opportunity to participate politically.150 And although deliberative reason no longer played a role in parliament, as long as it adhered to the “empty functionalism” of legislative procedures, its products were accorded legitimacy – no matter the actual content. Schmitt argued parliamentary procedure appears to produce right; positive law appeared legitimate simply because it was positive.151

Schmitt argues instead that the absence of substantive legitimacy was the source of Weimar’s crisis. He argued law does not automatically attain “rational-legal” legitimacy just because a majority pushed it through parliament. Instead, rational-legal legitimacy came from deliberative reasoning. So, when the state becomes quantitatively total, parliament ceases to produce rational- legal legitimacy. And deprived of its relationship to natural reason, the procedure that ought to produce rational-legal legitimacy becomes an empty façade.152 Underneath this facade, Schmitt argues there is only the tyrannical principle sic volo sic jubeo [I want this, I command this], which becomes “lex est, quod populous jubet [law is what the people command] in mass democracy.”153 The bourgeois Rechtsstaat under the strain of 20th century changes loses its relationship with republican virtues. Parliament, no longer the site of the rule of law or reason, now is an institution masking the arbitrary rule of men. Schmitt thus argues 20th century absolute democracy is a form of political tyranny annihilating freedom as it annihilates the rule of reason.154

In practice, Schmitt argues, the presence of these total movements enable parliamentary “ruptures” of the constitution. They may pass unconstitutional but democratically “legitimate” law. Schmitt argued the most threatening source of these ruptures was Article 76, which

149 Schmitt, Der Hüter der Verfassung, 115-121; Caldwell, "Controversies over Carl Schmitt: A Review of Recent Literature," 372. 150 Schmitt, Legality and Legitimacy, 48; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 115. 151 Schmitt, Legality and Legitimacy, 23. 152 Schmitt, Legality and Legitimacy, 29; Schmitt, Constitutional Theory, 183; Carl Schmitt, "Das Problem Der Legalität," in Verfassungsrechtlich Aufsätze Aus Den Jahren 1924-1954 (Berlin: Dunker & Humblot), 55, 62. 153 Schmitt, Legality and Legitimacy, 20, 23. 154 Schmitt, Legality and Legitimacy, 94.

Page | 102 Leviathan Run Aground: Chapter 3 governed constitutional amendments.155 Because the only restriction on the exercise of Article 76 was adherence to the procedures in effect at that moment, the entire constitution could in fact be amended out of existence if an antidemocratic and illiberal parliament had, paradoxically, sufficient democratic legitimation. But beyond explicit emendation, Schmitt cautioned that ad hoc parliamentary majorities were able to make individual “exceptions” to constitutional rules without changing the content of the constitution itself.156 Through these “exceptions,” the actual validity of the constitution was thus rather different from how it appeared in writing.

Caldwell and Kalyvas have noted how, for Schmitt, these constitutional “ruptures” demonstrated parliament’s alarming capacity to assume sovereignty apocryphally, to make sovereign decisions without actually possessing sovereign authority.157 And total movements in parliament were not unaware of that power. They used whatever ephemeral majority they could cobble together to enact and expand their particular Weltanschauung – regardless of its coherence with the substantive core of the Weimar Constitution.158 And, as a temporary majority, they tried to limit the possibility for other movements to gain a majority, effectively kicking down the ladder to power that equal chance represents and solidifying their own power in the process. Thus, “ruptures” were not just a theoretical problem. Schmitt writes the authors of the constitution, Preuß and Triepel, rightly protested the increasing regularity of this practice.159

Parliament also committed other apocryphal sovereign acts. Schmitt writes parliament began to tacitly breach the limits of the legislative branch, expanding into the executive. According to the distributional principle of the bourgeois Rechtsstaat, parliament should only be able to determine the content of general, formal statutes and the executive branch should execute the general statutes that parliament passed.160 But, in fact, Schmitt thinks it has managed to subordinate the executive to itself by formulating statutes that were no longer formal, undermining the executive’s power to determine when to apply those statutes.161 In addition, he argues, parliament’s authority to appoint both judges and bureaucrats undermined the independence of the other two branches.162

155 Schmitt, Constitutional Theory, 215-217. 156 Schmitt, Constitutional Theory, 154ff., 216-217; cf. Karl Loewenstein, "The Bonn Constitution and the European Defense Community Treaties: A Study in Judicial Frustration," The Yale Law Journal 64, no. 6 (1955): 828. 157 Schmitt, Constitutional Theory, 188; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durhan: Duke University Press, 1997), 105-106; Kalyvas, Democracy and the Politics of the Extraordinary, 176ff. 158 Schmitt, Der Hüter der Verfassung, 89-91. 159 Schmitt, Constitutional Theory, 155-156. 160 Schmitt, Constitutional Theory, 191, 214. 161 Schmitt, Der Hüter der Verfassung, 130. 162 Schmitt, Der Hüter der Verfassung, 100-108; Schmitt, Legality and Legitimacy, 31. Although, like Franz L. Neumann, Schmitt followed and thought the judiciary was not really an independent branch because it was, en quelque façon nul. Schmitt, Constitutional Theory, 222, 232; Cf. Schmitt, Der Hüter der Verfassung, 17-22.

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Parliament had become an arena for indirect powers, potestates indirectae, to struggle to seize the reins of power.163 Schmitt describes indirect power as appropriating for itself the decision of what is legitimate and without undertaking to provide for the basic needs of stability and security of the political community.164 It was far easier and more advantageous to remain an indirect power in a weak quantitatively total state and not risk taking political responsibility.165 Schmitt concluded that the “objective reason” of the rule of law had given way to the “subjective interests” of the majority’s shifting and contradictory motives under the direction of “egoistic parties and factions.”166 In other words, parliament’s representative character had eroded, publicity has given way to arcane committees, lobbying groups, and business interests, all indirect powers.167 Parliament had become dominated by its “an antechamber,” which exercised sovereign power indirectly.168 Nevertheless, parliament had crossed from being a pouvoir constitué to the front for a sovereign body because of the power it had to legislate and revise the constitution. The antechamber, he asserts, is comprised of those who service, assist, or even manipulate a legitimate sovereign. The state’s direct power, meanwhile, seemed to have vanished altogether.

Thus, Schmitt argues mass democracy’s effects on parliament not only affected the rational-legal legitimacy of the laws it produced, but also the limits of the constitution on legislation and the . Parliament in the quantitatively total state was rewriting, and effectively abandoning, the liberal metaphysical principles at the heart of the Weimar Constitution. Without ties to its underlying substance, the bourgeois Rechtsstaat’s value-neutral proceduralism allowed disingenuous parties to break it down from within. f. Mass Pathos and Plebiscitary Democracy

But was Schmitt’s concern only with parliamentary democracy? Could his attack on parliamentary democracy been merely a means to introduce plebiscitary democratic legitimacy? An indirect indication of Schmitt’s concerns about unconstrained democracy writ large comes from reflecting on how little Schmitt has to say about voting and suffrage. This central issue of political theory only comes up a handful of times in Schmitt’s writings. And when it does, Schmitt absolutely trashes suffrage.169 Most of his discussion is a critique of the secret ballot, which Schmitt dismisses as a liberal depoliticization.170 He argues it reduces the democratic

163 Carl Schmitt, "Im Vorraum Der Macht: Aus Einem Gespräch Über Den Einfluß Auf Den Machthaber," Die Zeit, July 29 1954.. Reproduced as the “Intermezzo” to his Gespräch Über Die Mache. 164 Schmitt, "Völkerrechtliche Neutralität und Völkische Totalität (1938)," 259. Schmitt appropriates the concept of indirect power from Cardinal Bellarmine, who conceived of it in response to Hobbes. 165 Schmitt, Legality and Legitimacy, 88. 166 Schmitt, "The Plight of European Jurisprudence," 48-49. 167 Schmitt, Constitutional Theory, 341-342. 168 Schmitt, The Crisis of Parliamentary Democracy, 7; Schmitt, "Strong State and Sound Economy," 222-223. 169 I’m indebted to Nadia Urbinati for pushing me to take up this discussion. 170 Schmitt, The Crisis of Parliamentary Democracy, 16; Schmitt, "Der bürgerliche Rechtsstaat," 48; Schmitt, Constitutional Theory, 256,273-274.

Page | 104 Leviathan Run Aground: Chapter 3 process to merely a private, individual act in which a voter is publically unaccountable. Schmitt seems to adopt a classical republic stance. Without any requirement for public accountability and justification, voting becomes politically irresponsible. He argues the secret ballot shifts the popular will from being a volonté générale to an aggregated, apolitical volonté des tous, undermining democracy legitimacy in the process.171

Because of these remarks, Schmitt could be read as a proponent of a different form of democratic legitimacy: plebiscitary democracy. Indeed, when one reads The Crisis of Parliamentary Democracy, Schmitt does appear to endorse it. He writes, that dictatorial and Caesaristic democratic methods, unlike liberal democratic ones, “not only can produce the acclamation of the people but can also be a direct expression of democratic substance and power.”172 And he argues further that “the will of the people can be expressed just as well and perhaps better through acclamation.”173 Read alongside his arguments that the people is a strictly “public” and “present” entity, Schmitt seems to argue for plebiscitary democracy.

But Schmitt’s apparent endorsement of plebiscitary democracy is gone by 1928. In 1932, he even condemns it. One can speculate that his actual experience with the worst excesses of democracy and populism in late Weimar brought about this change. But even his arguments in The Crisis of Parliamentary Democracy are not so unequivocally positive as they first appear. There, although Schmitt argues plebiscitary democracy is a better expression of the people’s will than the aggregate private wills expressed in parliamentary democracy, Schmitt also argue the dictatorial methods needed to produce this “more democratic,” more direct public will may well make it as illegitimate as parliamentary democracy methods of political will formation. Also in that text, he writes that while political power should ideally come from the people’s will, the experience with bolshevism shows how little dictators actually require the people to form a will in order to govern “legitimately.”174 He concludes that the people’s will is easily manufactured (and easily manipulated) – be it through either parliamentary or plebiscitary methods. Schmitt’s point in 1923, then, is that although plebiscitary democracy is a more legitimate expression of the will of the people than parliamentary democracy, it is so only relatively.

By 1928, Schmitt has distanced himself from plebiscitary democracy. In his Constitutional Theory and “Der bürgerliche Rechtsstaat,” he argues plebiscitary democracy is no less depoliticized than liberal democracy. “The people” make no actual decision in either form of democracy; political decisions are already fait accompli when presented to the people in a plebiscitary democracy.175 Moreover, in every instance of a plebiscite, “the people” has taken the path of least resistance – deciding on the matter not because it is consistent with the common

171 Schmitt, Constitutional Theory, 274. 172 Schmitt, The Crisis of Parliamentary Democracy, 17. 173 Schmitt, The Crisis of Parliamentary Democracy, 16. 174 Schmitt, The Crisis of Parliamentary Democracy, 28-29. 175 Schmitt, "Der bürgerliche Rechtsstaat," 48-49.

Page | 105 Leviathan Run Aground: Chapter 3 good but because it is the easier option.176 Thus, he concludes that “the people” is in general politically disinterested, besides being highly manipulable in a plebiscite.177 So, Schmitt argues, there is little reason to believe that a plebiscitary democracy would yield a political will any more legitimate than one produced by parliamentary democracy. In mass democracy, acclamation is as apolitical as the secret ballot.

In Legality and Legitimacy (1932), Schmitt has turned against plebiscitary democracy even more. He contrasts Weimar’s provisions for plebiscitary democracy with those for parliamentary democracy, noting both are located in its First Principal Part. He writes there is “no compelling reason” why plebiscitary democracy should be accorded higher constitutional value than parliamentary democracy in determining Weimar’s core constitutional questions.178 He argues further that plebiscitary democracy only exacerbates the (already extremely problematic) “majoritarian functionalism” of Weimar democracy.179 He reprises his 1928 arguments, arguing “the people” cannot actually govern at all – at most, they can sanction decisions already made.180 Moreover, he adds that plebiscitary democracy is problematic because it necessarily presupposes a higher authority posing it questions. And in doing so it presupposes a substantively legitimate authority (that is, that it presupposes an authority that actually attempts to represent the will of the people in the way it poses questions).181 In the end, Schmitt concludes plebiscitary democracy is an emotional, irrational, incommunicative, and therefore a dangerous method of political will formation.182 Whatever problems parliamentary democracy suffered were exacerbated by plebiscitary democracy - with one exception. The output of a plebiscite was a clear (simple) majority. Yet Schmitt does not seem to think much of unqualified , no matter how that will is formed. As we shall see in later chapters, his concern is more about the rational substance of that will than the way in which the will is formed.

It is a mistake to argue Schmitt believes plebiscitary democracy is any more legitimate than parliamentary democracy. While he had some initial sympathy to it, his disenchantment with democracy and suffrage in general turned him decisively against both forms. The substantive problems modern mass democracy presented would not simply vanish with a plebiscite. Something more than mere will was necessary to obtain political legitimacy. Competitions among different wills were tearing the state apart.

176 Schmitt, Constitutional Theory, 305; Schmitt, "Der bürgerliche Rechtsstaat," 48-49. 177 Schmitt, Constitutional Theory, 304. 178 Schmitt, Legality and Legitimacy, 60. 179 Schmitt, Legality and Legitimacy, 63. 180 Schmitt, Legality and Legitimacy, 89. 181 Schmitt, Legality and Legitimacy, 90. 182 Schmitt, Legality and Legitimacy, 64, 91.

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3. Mere Anarchy is Loosed: Pacta Sunt Servanda and the State of War

Schmitt writes that, without any foundation in reason, constitutional law becomes the site of interpretative battles between opposed worldviews, exhibiting the degree to which agreement on even the most basic political questions had broken down.183 As an example, Schmitt discusses the politicization of Basic Rights in the American, French, German, and Bolshevik constitutions.184 While there are similarities among the first three sets, Schmitt also notes important substantive differences. But most striking was the difference between the Bolshevik and the three “bourgeois” sets of Basic Rights. For the Bolsheviks, the “Basic Rights” enshrined in bourgeois constitutions were “only the instruments of the capitalist rule of ” and therefore instruments of domination.185 They were not basic rights at all. In general, Schmitt’s point is that, although all constitutions agree on the importance of “basic rights” in the abstract, they disagree on what constitutes a legitimate basic right. These problems held for other core constitutional and political concepts. Schmitt also points to the concept Rechtsstaat, which “could mean as many different things as the word law itself.”186

Nuances and alternative interpretations in these concepts, whose meaning was taken as self- evident or left under-defined were written into the Weimar constitution, opened into chasms between total movements as each read its Weltanschauung into a concept. Each interpreted concepts such as “freedom,” “equality,” “justice,” “rights,” and even “democracy” in light of their particular metaphysical and political commitments. Each asserted, against the others, that any other understanding was wrong, that to enact laws based on those interpretations would be illegitimate. Each wrestled for control over the state in order to impose the right interpretation – raising, for Schmitt, again the question of quis judicabit?, the inescapable question of political theology: who had the right and authority to interpret the concrete meaning of a concept.187 As each total movement obtained power, it attempted to fill in those blank concepts, stirring objections from the other movements, who then decried determinations as threats to equal chance, and therefore at ends with Weimar’s value neutrality.188 While it prevented any one total movement from obtaining permanent domination, the balance of power their plurality created was not substantial enough to provide Weimar with a basis to defend its “bourgeois” constitution.189

But these tensions did not prevent coalitions from forming in parliament. As argued above, Schmitt thinks the coalitions that did form were turning the state into a spoils system of “business” agreements and compromises and raised the question of the legitimacy of the

183 Schmitt, Constitutional Theory, 184. 184 Schmitt, Constitutional Theory, 197-200. 185 Schmitt, Constitutional Theory, 200. 186 Schmitt, Legality and Legitimacy, 14. 187 Cf. Schmitt, Constitutional Theory, 88-93. 188 Schmitt, Legality and Legitimacy, 33-34, 92-93. 189 Cf. Schmitt's discussion of the types of emergencies in Schmitt, Der Hüter der Verfassung, 115-131.

Page | 107 Leviathan Run Aground: Chapter 3 domination of the minority total movements by the majority. He writes, “a state dominated by these methods of the formation of political will is reduced to the principle of pacta sunt servanda and the defense of ‘established rights.’”190 The Weimar state was being reduced to this condition of pacta sunt servanda, Schmitt thought, wherein each faction jealously defended whatever ‘rights’ it had acquired on the basis of the sanctity of positive statutes.

Probing deeper, Schmitt looked at the history of the concept pacta sunt servanda. He writes it originated with the Roman Praetor, who could declare “certain contracts are to be treated as valid in the execution of his office…The Praetor presents the agreements, for which he secures protection and execution through the official power to decide.”191 The concept originally entailed the exercise of sovereign authority192: the Praetor decided by fiat the validity of contracts (that is, which contracts were valid) and guaranteed those contracts by the authority and power of his office. Pacta sunt servanda was originally tied to the concept of sovereignty and auctoritas.

Schmitt argues that, without legitimate sovereignty backing it, pacta sunt servanda lacks the capacity or even the will to decide what constitutes a valid contract.193 Therefore, when there is no clear authority to decide and no consensus on the constitutional core of the state, the meaning of the concept becomes profoundly different in concreto from its formal definition. Schmitt says, indirect powers’ business compromises destabilize the community as a whole. Whatever legislation comes about, whatever “unity” there is, is merely the result of agreements and coalitions formed with “existential reservations [existentiellen Vorbehalten].” That is, Schmitt argues “then, the contract [based on principles of pacta sunt servanda] only has the sense of a peace treaty between the contracting groups, and a peace treaty, whether the parties want it or not, is always linked to the, though perhaps remote, possibility of war.”194 Such agreements are politically toxic and become the means to “stab another party in the back” as soon as conditions are right.195 The contractors, in this case, see one another as political enemies.

Schmitt adds to his discussion of the degeneration of pacta sunt servanda that, “when the decisive Friend-Enemy groupings are determined in civil society instead of foreign relations, it is civil war.”196 When movements within a political community no longer agree on the existential

190 Schmitt, Der Hüter der Verfassung, 110; cf. Kalyvas, Democracy and the Politics of the Extraordinary, 162. 191 Schmitt, Constitutional Theory, 120 (Schmitt's emphasis). 192 Schmitt raises “quis judicabit?” in this discussion, a unique appearance in his demystified Constitutional Theory. 193 Schmitt, Constitutional Theory, 119-120; Cf. George Schwab, "Enemy or Foe: A Conflict of Modern Politics," Telos 72(1987): 200-201. Schwab notes that pacta sunt servanda presupposes some common status. 194 Schmitt, Der Hüter der Verfassung, 141 (my translation, my emphasis). Schmitt quotes from his article Staatsethik und pluralistischer Staat, In the context of existential reservations, one can also refer to Schmitt’s discussion of reservations of the Kellogg Pact of 1928, which purported to abolish war (and exit the international state of nature) but in fact was filled with so many reservations [Vorbehalte] it not only failed to achieve its aim but actually created new possibilities for even more violent and polemical warfare by “giving an international hostis declaration new content and new vigor.” Carl Schmitt, The Concept of the Political [Der Begriff des Politischen], trans. George Schwab (Chicago: The University of Chicago Press, 1996), 50-51. 195 Schmitt, "The Plight of European Jurisprudence," 69-70. 196 Schmitt, Der Hüter der Verfassung, 142.

Page | 108 Leviathan Run Aground: Chapter 3 core of the constitution, each side will jealously compete for the power to impose their interpretation. These battles, precisely because they are so existentially important to the movements involved, bring the participants out of a state of peace and into a state of war – where war consists not in actual fighting but in the lack of assurance to the contrary. Thus, formal definitions aside, Schmitt thinks pacta sunt servanda, in the absence of sovereign authority, was practically no different from Hobbes’ bellum omnium contra omnes – and that it signaled the total breakdown of Weimar. For Schmitt, “radical subjectivity” fractures the state and returns its inhabitants to the miserable condition of the state of nature.197

Schmitt thought the quantitatively total state simply could not contain or hold back the chaos erupting within.198 Without an authority to interpret and decide on the most basic and essential questions facing a political community, plural interpretations arose. Indirect powers, manipulating the masses, tried to instrumentalize the state’s monopoly of power to impose their particular values on the others. Fractures in society were reproduced in parliament. Law itself, now merely positive, became a victim of and a cause of this disorder.199 For the “warring factions,” even the most basic concepts were polarizing and polemically disputed. Appeals to quantity would not solve problems of illegitimacy in such cases.200 Each movement was dogmatically obsessed with its own rightness. The insecurity of the state of nature re-emerged.

Although Hobbes’ epoch was different in that it dealt with the struggle between spiritual and secular authority, Schmitt saw parallels to the situation in Weimar.201 Because of that parallel, Schmitt thought he could become the 20th century Hobbes. Yet, the causes of the breakdown, such as the nature of civil society, technology, and even belief itself, were different from Hobbes’ time, Hobbes’ solutions needed to be updated too. As Schmitt was fond of noting, the great problems of democracy in the 20th century could not be dealt with and answered using terms from the age of Talleyrand and Louis Philippe.202 Mass democratization was irreversible, so clinging to the model of the 19th century state would fail to address its consequences – so he thought. If Weimar was to overcome its state of insecurity, Schmitt thought a legitimate sovereign authority was needed. The state needed to become total again.

Conclusion: Behemoth against Leviathan

197 McCormick, "Fear, Technology, and the State," 623. 198 Galli, "Carl Schmitt's Antiliberalism," 1609. 199 Schmitt, "Das Problem der Legalität," 63. 200 Schmitt, Legality and Legitimacy, 93. 201 Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein (Chicago: University of Chicago Press, 2008), 10-11, 86; G. L. Ulmen, "Between the Weimar Republic and the Third Reich: Continuity in Carl Schmitt’s Thought," Telos 119(2001): 30-31; McCormick, "Fear, Technology, and the State," 621-623. 202 Schmitt, "Vorwort zu Positionen und Begriffe (1940)," 5.

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Beginning in 1848, legitimacy had come to be defined in terms of democracy. Yet Schmitt thought that unqualified democratic legitimacy offered no guarantee against tyranny. He argued Weimar’s crisis was caused by two simultaneous events: the advent of modern mass democracy and the crisis in reason along with its “political theological” parallel, irreconcilable value pluralism. These two events were related. Modern mass democracy turned out to be incompatible with Weimar’s 19th century political institutions as it enabled a plurality of total movements in society to turn parliament into a forum for interpretative battles. Schmitt was troubled by how Weimar guaranteed and actively enabled the participation of parties committed to its destruction. Schmitt believed that, because of the disjunction between Weimar’s democratic institutions and mass society, the state – the institution charged with overcoming the state of nature – backfired in its role and instead exacerbated the very conflicts it was supposed to neutralize. He thought “19th century” bourgeois Rechtsstaat under the strain of “20th century” mass democracy had become self-neutralizing! Dissonance between Weimar’s 19th century design and its 20th century society was the underlying cause of its crisis. Political pluralism leads to the instrumentalization of the state. In the case of Weimar, apocryphal exercises of sovereignty emanating from parliament delegitimated the state. The state of nature reemerged.

Yet discussing Schmitt’s critique of majority rule and the quantitatively total state begs the question: to Schmitt, what does it mean for a conflict to be “political,” as opposed to non- political; what does it mean for society to be divided along the lines of friends and enemies. Answering this question correctly is an essential precondition for his state theory and what the state’s role is in relation to “the political.” Yet, this concept too has been misunderstood, leading to confusion about what Schmitt was getting at. The next chapter, Chapter 4, clarifies this concept by looking at what past interpretations of “the political” have missed and what this changes in Schmitt’s understanding of key concepts of the state, especially representation, before moving to his state theory in Chapter 5.

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Status Par Excellence: The Concept of the Political

Political unity is the highest unity – not because it is an omnipotent dictator, or because it levels out all other unities, but because it decides, and has the potential to prevent all other opposing groups from dissociating into a state of extreme enmity – that is, into civil war. Where a political unity exists, the social conflicts among individuals and social groups can be decided so that an order – that is, a normal situation – is maintained. – Carl Schmitt, “Ethic of State and Pluralistic State,” 203

In reality, the state is never present; present is either the prince or the people; the state, as political unity, is represented….The essence of representation always stands in close relation to the development of the definition of the state. – Carl Schmitt, Hugo Preuß

Introduction

“The concept of the state presupposes the concept of the political” begins Schmitt’s most famous work.1 This oft-quoted first sentence is pregnant with meaning. Schmitt argued it was state theory’s Copernican moment.2 In two overlooked passages, he emphasizes how important it is. In his 1963 “Foreword” to The Concept of the Political, Schmitt reflects back on it, writing,

Who could understand such an abstractly formulated thesis? To me it is still unclear whether it made sense to begin this analysis with such a lack of clarity and abstraction, for often the first sentence decides the fate of a publication. Yet this almost esoteric conceptual assertion is not entirely out of place here. This provocative thesis encapsulates

1 Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: The University of Chicago Press, 1996), 19. 2 Carl Schmitt, "Un Giurista davanti a se stesso," in Carl Schmitt: Un Giurista davanti a se stesso, ed. (Vicenza: Neri Pozza Editore, 2012), 156.

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what was intended to be understood by its audience in the first place, namely those familiar with the jus publicum Europaeum, its history, and its current problems.3

In 1970, Schmitt discussed it again, writing,

The Concept of the Political begins with a sentence that I once deleted because it seemed too difficult to use as the first sentence of a text. That sentence reads, “The concept of the state presupposes the concept of the political.” It sounds too abstract. But it is a summary of everything I have experienced; with this sentence, I can describe the entire constitutional-juridical history of my life.

Until then, every textbook of , constitutional law and constitutional law or administrative law defined the concept of the political in terms of the state. Political is that which refers to the state. Then I upended this and said, the state has to be defined in terms of the political. This is an amazing twist [eine erstaunliche Wendung].4

Evidently, Schmitt believed this sentence was being misunderstood already in the 60s and 70s and he needed to be more direct. He goes out of his way to raise several questions for readers of The Concept of the Political: what did he “upend”; what is so esoteric about that sentence; how does it summarize his entire juridical life; how exactly does it implicate the crisis of the state, and how would the answer to these questions bear on “the political”? Clearly, these eleven words warrant further discussion.

This chapter analyzes Schmitt’s concept of the political from a new perspective. It begins with an in-depth exploration of this “amazing” first sentence, looking at its origins and exploring Schmitt’s motivation to upend state theory’s roots. It also answers a related but heretofore unasked question: why does Schmitt, a man deeply preoccupied with the state and the political, almost entirely avoid a seminal concept of state theory: raison d’état [Staatsräson]?

The second section looks at the concept of the political in terms of the Friend-Enemy distinction. Critics of Schmitt, such as and Jürgen Habermas, have attempted to reduce “the political” to something like Ernst Jünger’s aestheticization and “celebration” of violence.5 They understand the political solely in terms of the Enemy and violence. Yet, as Andrew Norris has convincingly argued, attempts to understand the political strictly in terms (violent) enmity or an

3 Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 3rd ed. (Berlin: Duncker & Humblot, 1963), 13 (my translation). 4 Carl Schmitt, "Von der TV-Demokratie. Die Aggressivität von Fortschritts," Deutsches Allgemeines Sonntagsblatt, June 28 1970, (my translation). 5 Richard Wolin, "Carl Schmitt: The Conservative Revolutionary and the Aesthetics of Horror," Political Theory 20, no. 3 (1992): 433-435, 443-444; Jürgen Habermas, The New Conservatism (Cambridge: The MIT Press, 1988), 137ff; Cf. William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge: The MIT Press, 1994), 32-33; Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven: Yale University, 2003), 8, 20; John P. McCormick, Ca l S m tt’s C t qu of Liberalism: Against Politics as Technology (Cambridge: Cambridge University Press, 1997), 283; John P. McCormick, "Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany," Political Theory 22, no. 4 (1994): 626.

Page | 112 Leviathan Run Aground: Chapter 4 aestheticization of warfare fail to do justice to Schmitt’s explicit goals.6 That Schmitt saw himself as a theorist of concrete order (not disorder) and saw Hobbes as his “friend” in the struggle against the bellum omnium contra omnes should raise a red flag for these kinds of interpretations. Yet, these interpretations point to a somewhat confusing tension in Schmitt’s concept: the emphasis on enmity stands in sharp contrast with his concern for “concrete order” and stability. While this section does not deny that enmity is a cornerstone of Schmitt’s definition, it agrees with Norris that focusing on enmity alone is insufficient. It moves beyond enmity by examining the relationship of the political to “friendship” and “status”

The third section links the political to Schmitt’s understanding of the state through the concepts status and representation. As Ellen Kennedy and Ernst-Wolfgang Böckenförde have pointed out,7 Schmitt wrote the first draft of The Concept of the Political concurrently with his Constitutional Theory and the ideas present in the former provide a key to understanding the latter. Duncan Kelly has challenged the centrality of “the political” for understanding Schmitt’s constitutional and state theory, arguing that instead representation is the crucial concept for unlocking them.8 While Kelly is correct to highlight the importance of representation, he is wrong to deny the centrality of the political. Kelly overlooks how the role of representation is precisely to “make present” the principle of unity, i.e. the friend-enemy grouping, that defines a political community. He thus mistakes how deeply representation is embedded already in the political.9 This section incorporates Schmitt’s concept of representation into his concepts of the political, the friend-enemy-grouping, as well as some concepts discussed in chapter 2, such as the Hobbes-Crystal and Ideas, to provide richer robust understanding of “the political.”

To engage with Schmitt’s state theory, one must first understand his concept of the political. By focusing on some of the neglected aspects of the political, this chapter lays out a firmer foundation for his state theory. The discussion in this chapter, along with Schmitt’s negative account of the state through his critique of modern mass democracy developed in the last chapter, will serve as the foundation for extrapolating his ‘positive’ theory of the state in the next chapter.

1. The Political and the State

This section situates Schmitt’s state theory by looking at his critique of two seminal, early 20th century works in state theory. Schmitt criticized Jellinek’s Allgemeine Staatslehre and

6 Andrew Norris, "Carl Schmitt on Friends, Enemies and the Political," Telos 112(1998): 69-72. 7 Ellen Kennedy, "Hostis Not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt," in Law as Politics: Ca l S m tt’s C t qu of L al sm, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 92; Ernst- Wolfgang Böckenförde, "The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory," ibid., 37, 41. 8 Duncan Kelly, "Carl Schmitt's Political Theory of Representation," Journal of the History of Ideas 65, no. 1 (2004): 114. 9 Kelly, "Carl Schmitt's Political Theory of Representation," 128-129.

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Meinecke’s Machiavellianism as symptomatic of a general oversight in German state theory. Schmitt aims to show what exactly their state theory presupposes and why, given their masked presuppositions, state theory in Germany has failed to grasp Weimar’s problems. a. Schmitt and Jellinek on the Political

In that first sentence, Schmitt claims to invert a well-established tradition. Whose (seminal) ideas had Schmitt inverted? The literature in English is silent on these questions. However, Christoph Schönberger and Carlo Galli both noticed how Schmitt’s first sentence inverts ’s definition of the state.10 Several others have, however, gestured at Schmitt’s relationship to Jellinek, even if they stop short of making this connection. Duncan Kelly writes Jellinek anticipated Schmitt’s definition but goes little further.11 Peter C. Caldwell and Nehal Bhuta both describe the importance of Jellinek for understanding early 20th century state theory, including Schmitt’s, but offers little specific insight into Schmitt’s intellectual debt to Jellinek.12 Finally, Ernst-Wolfgang Böckenförde notes the inadequacy of Jellinek’s state theory when confronted by Schmitt’s concept of the political, but does not investigate this link.13 This section builds on Schönberger and Galli’s insight, discussing Jellinek’s place in Schmitt’s state theory.

Building up to his definition of the state in his Allgemeine Staatslehre, Jellinek writes “‘Politisch’ heißt ‘staatlich’; im Begriff des Politischen hat man bereits den Begriff des Staates gedacht.”14 Or “‘Political’ means ‘statal’; with the concept of politics, one has already thought the concept of the state.” By this, Jellinek meant the state has a monopoly over the political and, because of this monopoly, it is sufficient to simply discuss the state. Jellinek’s Allgemeine Staatslehre was written to confront a lingering question of the German state from at least 1848: how could individuals make claims on a supposedly sovereign entity? How could the state have a dual nature as a sovereign entity issuing positive law, yet still be constrained by subjective right? To answer these questions, Jellinek aimed to provide a comprehensive theory of the state. He analyzes the state in terms of two juridical structures: associational (Soziallehre) and “closed corporative” (Staatsrechtslehre).15 The former seeks to understand the state in terms of legitimacy and subjective right, the latter in terms of command and positive law. This division sort of reproduces the neo-Kantian hiatus, positive law’s facticity (sovereign power) confronts

10 Christoph Schönberger, "„Staatlich und Politisch" (20-26): Der Begriff des Staates in Carl Schmitts Begriff des Politischen," in Der Begriff des Politischen: ein kooperativer Kommentar, ed. Reinhard Mehring (Berlin: Akademie- Verlag, 2003), 21-22; Carlo Galli, La Genealogia della Politica: Carl Schmitt E La Crisi Del Pensiero Politico Moderno (Bologna: Il Mulino, 1996), 754. 11 Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford: Oxford University Press, 2003), 100; cf. 193-108. 12 Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durhan: Duke University Press, 1997), 41ff; Nehal Bhuta, "The Mystery of the State: State-Concept, State-Theory and State-Making in Schmitt and Oakeshott," Department of Law (EUI, 2014). 13 Böckenförde, "The Concept of the Political," 37. 14 Georg Jellinek, Allgemeine Staatslehre (Berlin: Verlag von O. Häring 1914), 180. 15 Kelly, The State of the Political, 98-99; Caldwell, Popular Sovereignty, 35, 41-43.

Page | 114 Leviathan Run Aground: Chapter 4 the constraints of the state as an entity that its members voluntarily associate into and can make claims on. That is, the state is divided into its factical and normative facets. Jellinek is, however, more concerned with the sociological fact of legitimacy rather than its substantive basis and he reproduces the epistemological hiatus imperfectly.

Jellinek builds to his definition of the state by noting several core aspects of this associational component: it is not natural, but a function of human community and human artifice; it consists of voluntary relationships; it is a principled unity; it is a unity of space, time, cause, and form; and it is a teleological unity.16 Jellinek defines the state sociologically as “an associational unity of a people settled in a location, who are equipped with sovereign power [Herrschermacht].”17 The state was thus “a function of the social relations among men.”18 “The political” is so insubstantial it does not even find its way into Jellinek’s final definition of the state. The only thing they lacked was territory – which they aimed to solve through their insurrectionary activity.

The sentence Schmitt inverts comes out of this associational (Soziallehre) component of Jellinek’s state theory; it stands to reason that Schmitt’s interest lies in the legitimacy of the state and not its sheer factical domination. In 1932, Schmitt believed his opening sentence would immediately bring to mind Jellinek’s definition in the context of Weimar crisis. Schmitt thus intentionally brought up those core qualities traditionally associated with the state: teleology; subjective legitimacy (in terms of voluntary relationships); human community as second nature; and principled unity in terms of space, time, cause, and form. By defining the political as prior to the state, he argues that conceiving of the political does not presuppose the state at all. The core qualities Jellinek held central to the state were actually independent of it. And this independence allowed those qualities to work at cross purposes to the state. And Weimar was one instance where they did. Any of Weimar’s total movements provided its members with those qualities19; namely, Weimar’s total movements – not the state – provided their members a principled telos; the appearance of legitimacy; and a unity of space, time, cause, and form.

That Weber’s definition of the state was very similar to and in some ways derivative of Jellinek’s definition was probably not lost on Schmitt.20 Immediately after inverting Jellinek’s hierarchy of state and political, Schmitt goes on to note that Weber’s definition of the state is guilty, like

16 Jellinek, Allgemeine Staatslehre, 174-180. 17 Jellinek, Allgemeine Staatslehre, 180-181 (my translation). 18 Stefan Breuer, Georg Jellinek und Max Weber: von der Sozialen zur sociologischen Staatslehre (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 14. Quoted from Kelly, The State of the Political, 101-102. 19 Schmitt notes that, there was something (unfortunately) correct about the theories of pluralism: their description of reality: the state actually was dependent on these plural social groupings and its status among them had been weakened and compromised. Cf. Carl Schmitt, "Ethic of State and Pluralistic State," in The Challenge of Carl Schmitt, ed. Chantal Mouffe (New York: Verso, 1999), 198. 20 Jellinek was a member of Weber’s “Heidelberg Circle.” The two figures knew one another well and exchanged ideas. Caldwell, Popular Sovereignty, 34; Kelly, The State of the Political, 93ff.

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‘many others of that time,’ of putting the political and state in a circular relationship.21 Weber’s sociological definition, “that the state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory,”22 shares with Jellinek’s its focus on human community, territory and location, and the idea of the legitimate use of force.23 Weber also seems to have picked up Jellinek’s concept of “the normative power of the factual,” which stemmed from the sociological horn of Jellinek’s division.24 Yet Weber emphasized more than Jellinek that the legitimacy, and thus efficacy, of a legal order hinged on the degree to which its subjects perceived it to be such, whether in terms of traditional, charismatic, or rational-legal authority.25 But both Jellinek’s and Weber’s definitions attempted to exclude discussion of substantive norms in order to stay within the bounds of the neo-Kantian hiatus and accordingly both tend to fall back upon the positivity of law in explaining the state.

The underlying problem with such definitions, Schmitt argues, is that they presuppose a stable political community; they are correct only as long as the state is “a clear and unequivocally eminent being.”26 But, as argued in the last chapter, Weimar was no longer clearly, unequivocally eminent. It was neither total nor a unity. Definitions that describe the political in terms of the state thus were useless for addressing Weimar’s crisis because they failed when they were needed most: as the state entered into crisis. Schmitt calls into question the idea of legitimacy at work in their understandings of the state. He notes that, in the state of nature, the state no longer had a monopoly on the legitimate use of force or sovereign authority at all. Instead, because substate total movements were where the political resided, the state did not possess any independent legitimacy.

Weimar, modeled on the 19th century bourgeois Rechtsstaat ideal, was instrumentalized by one total movement after another in the 20th century. Modern mass democracy had demonstrated the shortcomings of Jellinek’s state theory. But ideas have their own momentum. Schmitt’s peers continued to base their own concepts of the state and the political on ideas like Jellinek’s,27 failing to see that the political could be the state’s competitor and not its product. Schmitt aimed to counteract this in the hope of restoring the state. Thus, as Böckenförde has argued, for Schmitt, it was not a question of the monopoly of power at all, no matter the terms of political legitimacy

21 Schmitt, The Concept of the Political, 20; Cf. 19. In a clear reference to Weber, he says, “According to the modern linguistic usage, the state is the political status of an organized people in an enclosed territorial unit.” 22 Max Weber, "Politics as a Vocation," in From Max Weber, ed. H. H. Gerth & C. Wright Mills (New York: Oxford University Press, 1959), 78. 23 Kelly, The State of the Political, 94-95. 24 Kelly, The State of the Political, 101-103. 25 Weber, "Politics as a Vocation," 310-312; Max Weber, Economy and Society: An Outline of Interpretive Sociology 2vols., vol. 1 (Berkeley: University of California Press, 1978), 33-34; Cf. Sung Ho Kim, "Max Weber," in The Stanford Encyclopedia of Philosophy ed. Edward N. Zalta (2008). Weber was working our also “democratic,” charismatic institutional, and “natural legal” authority to complement these three types. 26 Schmitt, The Concept of the Political, 21-22. 27 Schmitt takes a jab at Jellinek and positivism together in Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G.L. Ulmen (New York: Telos Press Publishing, 2003), 73.

Page | 116 Leviathan Run Aground: Chapter 4 behind it, but a question of the monopoly of the decision over what the terms of the unity are – the coincidence of the political with the domain of the state.28 b. Raison d’État and Ratio Status: Schmitt’s Critique of Meinecke

Another challenge Schmitt makes to his contemporaries’ state theories sheds additional light on how he understands the relationship of state and the political. Schmitt almost never discusses a core concept of state theory: raison d’état. In fact, he may only discuss the concept once, in a 1926 review of Meinecke’s Machiavellianism [Idee der Staatsräson in der Moderne Geschichte].

Meinecke writes “raison d’état is the fundamental principle of national conduct, the State's first Law of Motion”29 By this, he understood that the preservation of the state had priority over any other consideration and could be pursued by any means, just or unjust. In doing so, he draws a strict divide between facts and norms, and places raison d’état strictly on the side of facts – and thus power and power politics are the relevant considerations to be made in calculating it.

Against Meinecke, Schmitt argues raison d’état is a vestigial concept of state theory from the 16th and 17th centuries, when the will of the state was identical to that of the absolute monarch.30 Like so many other concepts from the beginning of the era of the state (such as sovereign omnipotence), Schmitt thought raison d’état had become misleading.31 Old concepts continue to evoke their original meaning, even when that original meaning does not fit its new practice and context. Schmitt argues the concept raison d’état presupposes a ratio status.32 And he stresses these concepts are not the same.33 Both originated in the Venetian Republic’s phrase vita nostri status, which connoted a definite political entity, i.e. its public “sphere,” its particular res publica or civitas. He continues, “In [that] same sphere, concepts such as representation, person (which differs profoundly from personality or even individuality), dignitas, and honor belong. Status, according to Schmitt, originally meant “the fundamental and comprehensive unity of a substantial, ontological, essential public order. A public status has the inherent rationality of a

28 Böckenförde, "The Concept of the Political," 40, 43-44. Like in his pre-Weimar writings, Schmitt aims to shift consideration of the political and the state away from shifting the emphasis away from sheer power to it being a nexus between power and Recht. Cf. Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen [The Value of the State and the Meaning of the Individual] (Berlin: Dunker & Humboldt GmbH, 2004), 22-43. 29 Friedrich Meinecke, Machiavellianism: The Doctrine of Raison d'État and Its Place in Modern History, trans. Douglas Scott (Boulder: Westview Press, 1984), 1. 30 Carl Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles (Berlin: Dunker & Humboldt, 1988), 51. 31 Schmitt, The Concept of the Political, 42-43; Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [Politische Theologie], trans. George Schwab (Chicago: University of Chicago Press, 2005), 38. 32 Schmitt, "Zu Friedrich Meineckes "Idee Der Staatsräson" (1926)," 51. 33 Carl Schmitt, "Die Wendung zum Totalen Staat (1931)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923-1939 (Berlin: Dunker & Humblot, 1988), 148; Carl Schmitt, Der Hüter der Verfassung, 4th ed. (Berlin: Dunker & Humblot GmbH, 1931), 75-76.

Page | 117 Leviathan Run Aground: Chapter 4 being and it will, therefore, “in suo esse perseverare.””34 Thus, ratio status implies a specific type of existence, of political life, which was far broader than mere material survival.35 It indicates a status civilis, i.e. that a specific political order has been normalized and there is no longer a bellum omnium contra omnes. Ratio status defined the essential order of a political community. Raison d’état, on the other hand, defined the rational actions the political community, as a state, undertakes to perpetuate that order. A state’s “rationality” and its “rational” status overlapped historically only when the state held a monopoly over the political.

To speak of raison d’état becomes misleading once the state is quartered by total movements. Neither does it help when state theories like Laski’s deny its legitimacy and attempt to negate it. First, such a “state” has no specific ratio, no “inherent rationality.” As discussed in the last chapter, the dynamic of a quantitatively total state is that it moves in one direction and then another, it is irrational and incoherent under the shifting domination of various total movements. Second, and more importantly, it has no political status. Because it is no longer a total state, Schmitt does not think it can properly be said to have any res publica, any civitas, etc. etc. In other words, Schmitt believes that concepts like raison d’état presuppose a normal situation.36 Normalcy and a definite political status are exactly what Weimar lacked. No state modeled on 19th century Rechtsstaat principles under the strain of modern mass democracy could claim to have a rational status.

But beyond tensions between the political and the state, Schmitt thought raison d’état assumed too strict a hiatus between facts and norms, Sein and Sollen.37 Whether power or morality is in the state’s best interests is not the most important question of statecraft. To the contrary, he argues it is when rules in effect, such as the jus commune or general moral commands that the state itself has instituted, must be violated in order to preserve the state itself. That is, when the political order, or κόσμος, becomes self-undermining and requires a sovereign decision on whether there is an (internal) existential threat and what must be done in order to overcome that threat of disorder, or χάος – even if it means violating the norms of the established order.38 Raison d’état was a marginal concern when ratio status was absent. For Schmitt, the most

34 Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 51. Schmitt quotes Spinoza here. Another significant place he employs this definition is in reference to the Positive Constitution. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press, 2008), 76. See my discussion in Chapter 5 35 As discussed in Chapter II, Schmitt believes that this sort of existence is meaningless, a sort of living death. 36 Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 46-47. 37 Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 46, 48. 38 Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 46; Schmitt, "Die Wendung zum Totalen Staat (1931)," 148-149; Carl Schmitt, On the Three Types of Juristic Thought, trans. Joseph W. Bendersky (Westport: Praeger Publishers, 2004), 62; Cf., To Carl Schmitt: Letters and Reflections (New York: Columbia University Press, 2013), 54; Joseph W. Bendersky, "Introduction to Carl Schmitt's on the Three Types of Juristic Thought," in On the Three Types of Juristic Thought (Westport: Praeger Publishers, 2004), 12; Carlo Galli, "Carl Schmitt's Antiliberalism: Its Theoretical and Historical Sources and Its Philosophical and Political Meaning," Cardozo Law Review 21, no. 5-6 (2000): 1605-1607; Rüdiger Voigt, "Thomas Hobbes und Carl Schmitt: Ausgangspositionen Konservativen Denkens," in Der Hobbes-Kristall: Carl Schmitts Hobbes-Interpretation in der Diskussion, ed. Rüdiger Voigt (Stuttgart: Franz Steiner Verlag, 2009), 16.

Page | 118 Leviathan Run Aground: Chapter 4 important question of the state and sovereignty is quis judicabit?39 And quis judicabit? is far from being a question that divides power and morality. It is the question of the necessity to violate a normative-existential order in order to maintain or restore that order. Quis judicabit, then, means who decides on what the core of the ratio status is, whether it is in jeopardy from exceptions and abnormal situations, and what to do to save it and restore normality. It implicates the relationship of facts and norms.40 To hold that there is no relationship between the two realms, as Meinecke’s raison d’état theory had, was a mistake for Schmitt. The state is concerned with the realization of a specific type of order and this implies, political self- preservation is deeply linked to a specific normative order.

Thus, Schmitt argues raison d’état is problematic because the state itself has been “devoured” by a plurality of total movements, has lost its monopoly of the political. Without the state, without any ratio status, one could hardly even broach the question of raison d’état. Schmitt argued that the political had migrated to substate groups and thus a very different type of rationality was what needed to be discussed.

2. The Political: Enmity, Friendship, Relativizing Status

Schmitt defines the political in terms of the Friend-Enemy distinction.41 And while enmity is undoubtedly essential to the political, to discuss the political only in terms of enmity would leave out half the concept. This section provides a full account of Schmitt’s concept of the political by beginning with enmity and moving beyond it by incorporating also “friendship” and “status.” a. “Negated Otherness”: Schmitt’s Hegelian Point of Departure

Even if it is not the end of the political, enmity is certainly the beginning. Schmitt analyzes the political first in Hegelian terms as “negated otherness.”42 Hegel begins his analysis of self- consciousness through this idea of negation: to understand what one is, one must understand first what one is not. Identity and determination, for Hegel, originate through opposition. Schmitt seems to pick up Hegel’s understanding of the “negated other” and redefines it publically as “the enemy.” Thus, Schmitt transposes to the public domain what for Hegel occurred for the individual. The private other becomes the public enemy. In Schmitt’s idealized jus publicum Europaeum, this public enemy was to be the receptacle of only “public” hate: conflict was juridical and public, but not personal.43 That is, because the identity in question was communal,

39 Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 51. 40 Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 50-51. 41 Schmitt, The Concept of the Political, 26. 42 Schmitt, The Concept of the Political, 63. 43 George Schwab, "Enemy or Foe: A Conflict of Modern Politics," Telos 72(1987): 194-195, 199n123. The possibility of not personally hating an enemy seems bizarre to us today. Schmitt likely would have argued that this is because we no longer conceive of enemies but foes. The foe’s existence, even in a different state, must be eradicated – whereas a properly contained enemy might be tolerable on a personal level. I am not sure to what extent this

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Schmitt believes the enemy is abstractly conceived, according to wherever the fault line dividing Friendship and Enmity fell.

To illustrate politically what “negated otherness” is, Schmitt offers the example of the .44 According to Marx, the proletariat has no positive identity. One cannot say exactly what it is. But it is possible to say what it is not: the proletariat is the antithesis of the bourgeoisie. By theorizing what the bourgeoisie and capitalism are, and thus constructing a positive identity to contrast with, Marx thought it would be possible to shed light on proletariat identity. By fully theorizing the bourgeoisie, the proletariat would be revealed – or so Marx’ argument goes.

Schmitt continues arguing that, although the proletariat is the conceptual antithesis of the bourgeois, this political opposition did not mean individual would not find sympathetic qualities in individual bourgeoisie. Were it not for their very existential opposition, they might otherwise find much to like about one another. One could even share all other facets of the other’s identity. Yet, because of the opposition between their political identities, Schmitt believes a proletariat would recognize the bourgeoisie as a threat to his very existence – political identity trumps all other identity.

Schmitt’s understanding of political identity may seem paradoxical at first: a political unity determines its identity through its “enemy” – but an enemy is such only because some facet of one’s identity is the antithesis of another’s. What becomes apparent is that this dialectic, when in context and in history, is more refining than defining.45 Catholics and Protestants originated from the same point, but it was only through their interaction that each denomination came to identify differences in dogma on which they would not compromise. Iterations of interaction led to the polarization and politicization of what had begun as very minor differences. Enmity does not come out of nowhere. It rests on a tradition of oppositions that has politicized to the point that death appears as a better solution than compromise. For the proletariat, the bourgeoisie denies the proletariat its specific existence through capital and property. The defense of property, which was not specifically bourgeois but became one of the important concessions they sought in their struggle against absolute rule, turned out to be the most contentious right of all for the proletariat.

Schmitt argues political commitments are existential – and that therefore the political implies something more than mere material survival. It is a question of the foundational values necessary for meaningful life.46 As discussed in Chapter 2, foundational commitments, he believes, are the bedrock at which one’s spade is turned and justifications are exhausted. They are dogma. Politicized values are “existential” because to be deprived of them would render life not worth

ideal-typical differentiation would actually hold in practice, however. How an existential conflict (among Schmitt’s enemies not foes) would not simultaneously be personal and chiliastic is beyond me. 44 Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge: The MIT Press, 1988), 60- 64. 45 Carl Schmitt, Ex Captivitate Salus: Erfahrungen der Zeit 1945/47 (Berlin: Duncker & Humblot, 2010), 88-91. 46 Schmitt, The Concept of the Political, 27, 49; Norris, "Carl Schmitt on Friends, Enemies and the Political," 78.

Page | 120 Leviathan Run Aground: Chapter 4 living.47 And should an enemy threaten those commitments, violence and war may be the only conceivable response for that collectivity.48 Accordingly, Schmitt writes that “to the political belongs the ever present possibility of war.”49 But, Schmitt cautions, it is a mistake to think war is either the aim or the purpose of the political. It is merely the possibility that arises as the existential commitments of political communities collide with one another. Schmitt goes out of his way to note that the political and enmity are defined in defensive terms, as the drive to protect this existential core.50 Yet Schmitt’s attempt to differentiate these offensive and defensive senses falls flat since he argues an antithetical way of life is inherently threatening.51

Enmity, then, offers a point of approach to Schmitt’s concept of the political. And his appeal to Hegel is appropriate, since it is Hegel who provides one of the richest accounts of identity. The real possibility of violence and war against this existential other acts as a heuristic device for his concept. Because existential-political identity is primarily affective, the most salient features of political identity become apparent first when one feels those features threatened by their dialectic opposite, an opposition that threatens to engulf them. The possibility of war and violence are always wrapped up in the concept of identity because existential distinction carries this risk. Pace Schmitt’s critics, the link to violence and warfare is best understood as the tragedy of the political, not its virtue. But enmity is not the end of the political. It is its beginning. Like in Hegel, negation is only the starting point of determinacy. It moves dialectically toward the affirmation of some positive quality. b. Friendship and Enmity: Ancient Political Community

Friendship is as important for the concept of the political as enmity.52 Andrew Norris has written “it would be a mistake to think that what Schmitt means by an enemy can be grasped without understanding what he means by a friend.”53 And Strauss argues that, for Schmitt, “all political behavior is oriented toward [acquiring] friends and enemies” (his emphasis).54 Indeed, many thinkers make a serious mistake by tacitly throwing out this facet of the political.55 Admittedly, Schmitt barely uses the word friend and related terms without paring it with the enemy. While enmity may help to define what a community is, friendship is the basis for cooperation within it.

47 Schmitt, The Concept of the Political, 65. 48 Norris, "Carl Schmitt on Friends, Enemies and the Political," 81. 49 Schmitt, The Concept of the Political, 33-34. 50 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 119. 51 Leo Strauss, "Notes on the Concept of the Political," in The Concept of the Political (Chicago: The University of Chicago Press, 1996), 88. 52 Galli, La Genealogia della Politica, 750; Norris, "Carl Schmitt on Friends, Enemies and the Political," 79-80. 53 Norris, "Carl Schmitt on Friends, Enemies and the Political," 72. 54 Strauss, "Notes on the Concept of the Political," 103-104, 106. 55 Gayatri Chakravorty Spivak, "Schmitt and Poststructuralism: A Response," Cardozo Law Review 21, no. 5-6 (2000): 1725ff; Wolin, "Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror," 432; Scheuerman, Between the Norm and the Exception, 31-32; McCormick, Ca l S m tt’s C t qu of L al sm: Against Politics as Technology, 17, 96, 110, 233; Cf. Norris, "Carl Schmitt on Friends, Enemies and the Political," 70, 81.

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How else could the ideal of a political unity lacking enmity be described? Since Schmitt sets the goal of political stability based on the absence of enmity – the opposite of enmity is friendship. Thus, friendship must be the relationship among the constituents of a political unity.

As Norris writes, Schmitt is not the first person to discuss “the political” in terms of friendship and enmity. He engages with political philosophy’s oldest tradition. Schmitt tips his hand, even, by defining the enemy and the political in terms of the “public” enemy from Plato’s Republic.56 But, pace Norris’ assertion that Schmitt stands in stark contrast to the ancient tradition and despite Schmitt’s inversion of the ancients by approaching the political through enmity first, Schmitt’s friend-enemy distinction resembles Plato’s and ’s accounts in many important ways.57 For this reason, a synopsis of their analysis of political friendship (and enmity) contextualizes Schmitt’s own discussion.

Besides the passage from Republic defining the “public” enemy and providing the distinction between war and civil war, Plato discusses friendship and enmity in terms of justice and injustice in the state. Factions occur when a state is not “one” with itself, that is, when there are enemies within the state and it is in a state of injustice.58 For justice and unity to occur within a state, Plato argues its inhabitants must be “friends.”59 For this condition to obtain, reason must rule, in particular it must rule over the passions so that all are united in their aims and the state is oriented toward “the good.” Only when it is ruled over by the complete guardian, a philosopher- king who unites power and wisdom, can the city said to be ruled by reason.60 Plato emphasizes how the complete guardian has the insight to distinguish friends and enemies and that, aided by auxiliary guardians, he guards against those enemies while protecting friends.61

Aristotle provides additional insight into friendship and the political. For Aristotle, a friend is someone similar and equal to oneself with regard to certain qualities (perfect friendship occurs when these qualities are virtue and the good).62 Friends have the same fundamental identity and the same end (τέλος). Aristotle thinks there are many different types of friendship and many

56 Schmitt, The Concept of the Political, 28-29; Cf. Carl Schmitt, Political Theology II [Politische Theologie II], trans. Hoelzl & Ward (New York: Polity, 2008), 122-123. In a similar vein, he assesses the etymological relationship between polis and politics, police, and politesse. Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 9-11, 116-117, 118-119. It is not by accident that Schmitt uses Plato to articulate Friendship and Enmity in terms of civil war either. 57 Christian Meier draws attention to the similarities between Schmitt and Aeschylus on the political. Christian Meier, The Greek Discovery of Politics, trans. David McLintock (Cambridge: Harvard University Press, 1990), 123, cf. 124, 115-117. Although it is unlikely Aeschylus was a main source, that Schmitt’s account of the political has such deep parallels to Greek thought is suggestive of the degree to which he was inspired by their . 58 Plato, Republic, trans. Allan Bloom (Chicago: University of Chicago Press, 1968), 351ff; cf. Plato, Laws, trans. Thomas L. Pangle (Chicago: University of Chicago Press, 1988), 744de. 59 Plato, Republic, 462d-463a; cf. Plato, Laws, 693b, 701s, 743c, 862c, 880de. In each of these passages, Plato insists on the city being a friend to itself and provides reasons why it should be so. 60 Plato, Republic, 413e. 61 Plato, Republic, 375e-376e; cf. Plato, Laws, 760bff. 62 Aristotle, The Politics, trans. C.D.C. Reeve (Indianapolis: Hackett Publishing Company, 1998), 1287b1233.

Page | 122 Leviathan Run Aground: Chapter 4 different types of association, but that each should be a part of and subordinated to the political community.63 While these subordinate communities may aim at immediate and partial ends, the friendship of the political community stands above all.

Friendship is crucial to Aristotle’s understanding of a legitimate political community. He believes that the political community does not merely consist in a shared location (territory), for the exchange of goods (commerce), or for preventing wrongdoing (the night watch state). While these are necessary prerequisites, political community exists for the sake of the good, so that “friends” can realize it together.64 Aristotle argues legitimate political community is produced when friends who identify with the same values deliberately choose to associate politically in order to realize those values.65 And the extent of political community is identical with the extent of friendship.66 Friendship is achieved when all members are oriented by the well-being and telos of the political community and what affects their lives as a collective 67 Like Plato, he argues friendship is the greatest good: it safeguards against revolution and rebellion, guaranteeing the unity of the community; its absence produces factional conflict and destroys the community.68

Also like Plato, Aristotle argues the supreme must be “friends” of the constitution and the community.69 They must possess the insight to distinguish friends and enemies. Underlying each of Aristotle’s virtuous or “correct” regimes is their concern for the public good.70 Having this concern distinguishes just political rule from illegitimate or pathological domination. A political order is legitimate when its constituents perceive it to share in and actively realize their political interests, rather than merely its own particular interests. That is, a legitimate ruler – be it a single ruler, a few rulers, or the majority, acts on behalf of the public good. Tyranny occurs when a ruler instead acts on private self-interest. For example, politea, the non-pathological form of democracy in Aristotle’s typology, is when the majority of citizens rule but do so for the sake of the public good.71 It is legitimate because those ‘ruling’ share the identity – and are politically equal to – the ruled.72 When this occurs, the entire community is in a state of friendship, sharing

63 Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis: Hackett Publishing Company, 1985), 1160a1169. 64 Aristotle, The Politics, 1280b1238. 65 Aristotle, Nicomachean Ethics, 1156b1120, 1159b1153. 66 Aristotle, Nicomachean Ethics, 1159b1130. 67 Aristotle, Nicomachean Ethics, 1167b1162-1163. 68 Aristotle, The Politics, 1262b1267. 69 Aristotle, The Politics, 1309a. 70 Aristotle, The Politics, 1279a1217–1221; 1295b1219; Aristotle, Nicomachean Ethics, 1155a1123; 1159b1125; 1161a1133; 1167a1122. 71 Aristotle, The Politics, 1279a. 72 Schmitt uses this in his ideal typical definition of democracy (which may be understood also as the non- pathological form, in contrast to the tyrannical form described in the last chapter of the arbitrary rule of 51%). Schmitt, Constitutional Theory, 249, 259; Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004), 7-8.

Page | 123 Leviathan Run Aground: Chapter 4 the same telos and the same conception of the good. By virtue of that identity, the ruled believe that, were they to rule, they would make similar decisions as their current rulers already have.73 c. Friendship as Status Par Excellence

Schmitt's Friend-Enemy Grouping overlaps significantly with Plato’s and Aristotle’s analyses of the importance of Friendship to political community. Like Aristotle, Schmitt believes members of a political community, Friends, identify with the same values (the political) and associate politically to guarantee those values. Political friendship is for the sake of the pursuit of shared goals.74 Schmitt also believes stability presupposes political solidarity.75 Citing Plato, Schmitt describes factionalism as the presence of enemies within what should be a community, upsetting its “στάσις.”76 Schmitt even goes as far in his integration of Platonic themes to argue that the study of political parties should be called “stasiology” because of their dynamic and destabilizing effect on political order. The extent of political community is thus identical to the extent of friendship. In his polemics against total movements, Schmitt seems to follow Aristotle in arguing that the political community is prior to all other associations – other non-political (i.e. social) associations may make legitimate claims on individuals, but they are subordinate to the political ends of the community.77

Yet Schmitt departs from Plato and Aristotle in important ways. The Friend-Enemy distinction in Plato and Aristotle was subordinated to their main focus on ethical life and truth in politics. Schmitt totalizes this claim when he argues the high point of the political is the ability to distinguish friends and enemies in concrete clarity.78 Schmitt does not seem to believe there is any definite “good” but, closer to Hobbes, believes that, whatever the good is defined as, it always stands in need of interpretation. The basis for friendship, for Schmitt, can be anything sufficient to generate an intense feeling of association. “The good,” insofar as it can be said to exist at all, is relativized. Relative good or evil corresponds to affective intensity on a communal level: “[they] can be easily determined when one knows who one’s enemy is.”79

Schmitt writes the political is “the authoritative [maßgebende] human grouping, the political entity” so existentially strong it “pushes aside” all non-political associations.80 Two things can be said of this relationship of subordination. First, although there will be non-political disputes and differences among individuals within a political community, their political association

73 Aristotle, The Politics, 1287b1233. 74 Aristotle, Nicomachean Ethics, 1164a1112; Cf. Schmitt, The Concept of the Political, 37. 75 Böckenförde, "The Concept of the Political," 39; Norris, "Carl Schmitt on Friends, Enemies and the Political," 71, 78. 76 Schmitt, The Concept of the Political, 28-29; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 118-119; Schmitt, Political Theology II, 121-123. 77 Schmitt, The Concept of the Political, 47-48. 78 Schmitt, The Concept of the Political, 67. 79 Carl Schmitt, Gespräch uber die Macht und den Zugang zum Machthaber (Klett-Cotta, 2012), 46. 80 Schmitt, The Concept of the Political, 38.

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“neutralizes” disagreements, preventing them from escalating into violent conflict. “Friends” see their differences as private, not political. To return to the above example of the proletariat, Schmitt would argue that other identities, such as race and gender, are secondary to class when economic identity is politicized. There may be racial or gender conflicts in a proletariat political community, but he argues these differences will not lead to civil war because their shared proletariat political identity depoliticizes them. As long as that proletariat identity remains politicized, other real differences will remain merely social. Second, the flip side of neutralization is politicization: despite overlaps in non-politicized identity, “enemies” will not find a basis for political association. Political identity, because it is so existentially compelling, necessarily leads to conflict.81 For example, if economic identity politicizes, other sources of identity, like race, will not generate friendship. The inverse holds too, the politicization of economic identity extends friendship beyond borders. Schmitt confronted this situation in Weimar, where the KPD was merely an extension of the Soviet-led Comintern.

For these reasons, Schmitt defines the political as a relativizing or neutralizing status. Other identities are “relatived” because they are less affective than whatever the political is and thus they do not lead to violent conflict. Thus, when Schmitt discusses political homogeneity, he does not have in mind an impossibly monolithic identity that completely smothers difference.82 Kalyvas rightly argues that “too much ink has been wasted over [Schmitt’s] alleged glorification of substance, homogeneity, and identity.”83 But Kalyvas is incorrect to argue Schmitt believes political homogeneity is not total. To the contrary, political homogeneity must be total to become a neutralizing status, which allows social heterogeneity, i.e. enables difference to coexist peacefully. That is, Schmitt distinguishes between political monism and social pluralism. Schmitt believes having a single “the political” shared state-wide will prevent other identities from politicizing and becoming violent.

Drawing on Hobbes’ theory of civil war in Leviathan, Schmitt argues the Friend-Enemy distinction must be neutralized within a state. No state can tolerate political pluralism, in the sense of multiple friend-enemy distinctions or multiple (and thus potentially conflicting) value commitments. But one must bear in mind that Schmitt’s use of the term political is technical and not like what we understand as political pluralism today. The political, for Schmitt, entails commitments strong enough to lead to violent conflict.

While Hobbes figured in the background of his earlier writings on status, Schmitt brought Hobbes explicitly into view it was in his 1963 “Remarks” to The Concept of the Political. He

81 Schwab, "Enemy or Foe," 194-195, 199. 82 Schmitt, "Ethic of State and Pluralistic State," 201, 203ff. Schmitt, a Catholic who had the Kulturkampf deeply- imprinted in his identity, was well-aware that no political unity could hope to eradicate all difference – nor did he think it was a meaningful political ideal. He thought attempts at total homogenization would in fact only lead to civil war. 83 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (New York: Cambridge University Press, 2008), 155.

Page | 125 Leviathan Run Aground: Chapter 4 argues that the transcendent veritas – whatever it may be – constituting a political community contains a neutralization.84 But Schmitt insists that Hobbes did not intend Leviathan to be a total neutralization. Political neutralization for Hobbes still included a substantive value commitment. The sovereign had a duty to neutralize the politicized differences between Christian denominations so they could peacefully coexist and legal order could be restored. This neutralizing truth was “Jesus is the Christ,” which Schmitt believes Hobbes intended as a genuine political-existential commitment. With the authority and power of the state behind it, the political dispels the state of nature. The political keeps “all domestic distinctions, antagonisms, and conflicts below the level of friend-enemy-groupings.”85

After he inverts Jellinek’s definition at the beginning of The Concept of the Political, Schmitt describes the political as a relativizing or neutralizing status. He suggests the link between state and the political still is important for understanding what the state ought to be:

in its linguistic and historical sense, “state” is a particular type of condition of a people, and that, in decisive cases, it is the authoritative condition and thus, opposed to the many conceivable individual and collective statuses, the status par excellence.86

Schmitt believes historically that the state was the status or condition [Zustand] of its people. It is the authoritative status or condition [maßgebende Zustand]; the status par excellence [der Status schlechthin]. He argues that the word state derives from the concept status.87 It decided on the Friend-Enemy distinction and “relativized” other identities.88

Jellinek’s reduction of status to state worked only because at that time the state was successful in maintaining its monopoly over “the political,” when there was already a ratio status. Schmitt’s inversion of Jellinek’s definition is intended to draw attention to the fact that the state no longer

84 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122. The contrast he draws is, of course, with “technical” neutralization, which aims at complete neutralization but is either a mere façade, masking an actual politicization, or an utter annihilation of value and thus something that renders life hollow and meaningless. Cf. McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 99ff. 85 Böckenförde, "The Concept of the Political," 39. As Böckenförde rightly notes, this relativizing status turns out to be the same as Schmitt’s concept of democratic homogeneity. Similarly, it is what he means by the identity of the ruler and the ruled. See my discussion in the next chapter. 86 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 20-21. Original: Staat ist seinem Wortsinn und seiner geschichtlichen Erscheinung nach ein besonders gearteter Zustand eines Volkes, und zwar der im entscheidenden Fall maßgebende Zustand und deshalb, gegenüber den vielen denkbaren individuellen und kollektiven Status, der Status schlechthin. Translation altered from Schwab’s. Cf. Schmitt, The Concept of the Political, 19-20. 87 Schmitt, Constitutional Theory, 100; Schmitt, "Zu Friedrich Meineckes "Idee der Staatsräson" (1926)," 51. Cf. NRW-12605 20383. Perhaps Schmitt argues this incorrectly, however. Cf. Quentin Skinner, "The State," in Political Innovation and Conceptual Change, ed. Terence Ball, James Farr, and Russell L. Hanson (New York: Cambridge University Press, 1989); H. C. Dowdall, "The Word 'State'," Law Quarterly Review 39(1923); L. G. Baxter, "'The State' and Other Basic Terms of Public Law," South African Law Journal 99(1982); Harvey C. Mansfield, "On the Impersonality of the Modern State: A Comment on Machiavelli's Use of Stato," The American Political Science Review 77, no. 4 (1983). 88 Schmitt, The Concept of the Political, 29-30.

Page | 126 Leviathan Run Aground: Chapter 4 provides this status par excellence. Under the strain of mass democracy and politicized total movements,89 Schmitt realized the political could exist wholly independently from the state – and that, when it was independent, the political became the cause of civil war. Schmitt’s concept of the political is thus a theory of civil war. Because it is “the political” and not the state that relativizes existential conflict, Schmitt wants to move away from concepts like raison d’état. He insists on separating out ratio status. Political crises arise when “status” frees itself from “state.”

Schmitt considers political homogeneity and equality to be the conceptual equivalent of this relativizing status. In his discussion of equality in Constitutional Theory, he argues that the basis for democratic homogeneity depends on whatever qualities are politicized.90 He lists historical forms of this “neutralizing” political homogeneity.91 In ancient Greece, political homogeneity was physical or moral status – natural qualities determined ἀρετή. In medieval theory, it was ἀρετή, virtus, or vertu that constituted this basis. In post-medieval political communities, such as Puritan Massachusetts, religion served as this basis. In the late 18th century, the basis for the Friend-Enemy distinction became the nation (anything from “common language, common historical destiny, traditions and remembrances, and common political goals and hopes”92). Finally, Schmitt argues economic class can serve as this basis. In the 1963 edition of The Concept of the Political, Schmitt provides a different set of neutralizing friend-enemy groupings: Christianity, monotheism, (French) nationalism, utilitarianism, and Marxism.93

So Schmitt argues literally anything can be politicized.94 Anything is potentially a Friend-Enemy grouping; any identity can become the basis for political homogeneity. That is, Schmitt argues any of these values once it has politicized is sufficiently thick to generate Friendship. Interpreters have argued Schmitt thought only race could serve as the basis for homogeneity.95 Not only is there a lack of evidence for this view, as Kalyvas has argued, but it also fails to create a basis for a meaningful or coherent reading of his work on political identity.96 This does not mean Schmitt was unaware of race or ethnicity being politicized (in a well-cited example of the Turks and

89 Schmitt, The Concept of the Political, 30. See the discussion in the previous chapter. 90 Schmitt, Constitutional Theory, 263-264. 91 Schmitt, Constitutional Theory, 259-263. 92 Schmitt, Constitutional Theory, 262. 93 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122-123. 94 Schmitt, The Concept of the Political, 37. 95 Ulrich K. Preuss, "Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution," in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, ed. Michel Rosenfeld (Durham: Duke University Press, 1994), 153-155; Richard Wolin, "Carl Schmitt, Political , and the Total State," Theory and Society 19, no. 4 (1990): 390ff; Wolin, "Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror," 425ff; William E. Scheuerman, "The Fascism of Carl Schmitt: A Reply to George Schwab," German Politics and Society 29(1993): 106ff; William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 127; William E. Scheuerman, "Carl Schmitt and the Nazis (Book Review)," German Politics and Society 23(1991): 74-75. 96 Kalyvas, Democracy and the Politics of the Extraordinary, 120-121. Böckenförde outlines ways in which this is being done and draws attention to the idea of nationalism when Carl Schmitt’s more provocative writings came about. "Carl Schmitt Revisited," Telos 109: 83-84.

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Greeks, he argues it has97). But Schmitt’s claim is that, precisely because enmity leads to violence and civil war, an overarching political status that can neutralize potential conflict is essential. Schmitt argues the nation premised on shared values (such as Germany’s decision for a Rechtsstaat), and not race, is the most pervasive form of political homogeneity today.98 However, Schmitt did discuss the political core of the Nazi State in exactly those terms of race and ethnicity in his writings from 1933 to 1936.99 While Schmitt’s acts during this time and their implications for the dangers of his “political” have been rightly scrutinized, it would be a mistake to conclude his theory only implies volkish homogeneity. Insofar as he did succumb to the politicization of ethnicity, this does not mean we should discount his theory today. To do so would rob political theory today of the broader meaning of the political.

3. The Political: Status, Sovereignty, and Representation

It has been argued that “auctoritas non veritas facit legem,” translates as “not truth, but force makes the law” and that what Schmitt means by this maxim is “Nothing is true—everything is command.”100 “Everything is command” is not far from the sophist maxim “justice is nothing other than the advantage of the stronger.” Hyperbole aside (not to mention the obvious translation error), this reading is a caricature of a more common tendency to interpret Schmitt’s arguments about sovereignty and decisionism as reducible to power, that sovereignty is ultimately nothing more than a sophisticated justification for domestic power politics. Many scholars have argued for a reading of Schmitt along these lines. Some interpreters, such as Scheuerman and Dyzenhaus, argue Schmitt intended to produce a moment of pure sovereign discretion and that ultimately this moment is informed by nothing more than the exercise of power.101 Galli argues Schmitt espouses a form of nihilism and at times irrationalism.102 Others,

97 Cf. Schmitt, Constitutional Theory, 262. 98 Schmitt, Constitutional Theory, 394. Schmitt’s remarks on homogeneity and federation are particularly valuable for revealing his intentions. In general, consider how Schmitt discusses homogeneity as resolving the antinomies of confederation. Schmitt, Constitutional Theory, 392-394. 99 Carl Schmitt, Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit von Staatsrat (Hamburg: Hanseatische Verlagsanstalt, 1935). The degree to which Schmitt was behaving opportunistically, authentically, or as merely an attempt to save himself has been much debated. Joseph Bendersky and Richard Wolin represent the debate’s two poles. Reinhard Mehring’s recent, outstanding biography (Reinhard Mehring, Carl Schmitt: Aufstieg und Fall (München: C.H. Beck, 2009). engages with this question and, in my opinion, soberly shows how complicated this questions is. Mehring also shows there may be element of racism extending beyond mere opportunism in Schmitt’s account. 100 Anno Hellenbroich and Elisabeth Hellenbroich, "Thomas Hobbes und die Staatstheorie Carl Schmitts," Neue Solidarität 4, no. 25 (2006); Cf. Gershon Weiler, From Absolutism to : Carl Schmitt on Thomas Hobbes (Durango: Hollowbrook Publishing, 1994), 19. 101 Scheuerman, Carl Schmitt, 27, 68; cf. 19, 33-35, 116-118; David Dyzenhaus, "Hermann Heller: An Introduction," Cardozo Law Review 18(1996-1997): 1134-1135; Bhuta, "The Mystery of the State," 25; Hauke Brunkhorst, "The Right to War: Hegemonial Geopolitics or Civic Constitutionalism?," Constellations 11, no. 4 (2004): 514-515, 516; Cf.Müller, A Dangerous Mind, 23; Robert Howse, "From Legitimacy to Dictatorship - and Back Again. Leo Strauss's

Page | 128 Leviathan Run Aground: Chapter 4 like Habermas and McCormick, go further and argue this moment is an aestheticization of violence or conflict, and, although they do not use the term, Schmitt comes across as a nihilist similar to Ernst Jünger.103 McCormick has argued that Schmitt’s decisionism anticipates .104

Reading Schmitt as a sophist or a nihilist fails to grasp core elements of his thought. Kalyvas makes this point when he argues it is a mistake to read Schmitt as glorifying irrationalism in the decision and that, in order to understand sovereignty, “one has to go beyond personal empirical will.”105 Interpreting Schmitt as a type of sophist seems to be grounded in the similarly problematic ascription to him of volkisch communitarianism. What sophistry would do or gain for Schmitt’s legal theory is unclear. Regarding McCormick’s and Habermas’ more extreme reading, Schmitt was horrified by the aestheticization of violence.106 Moreover, as argued already, nihilism and disenchantment were Schmitt’s foremost concerns. He opposed legal positivism because he believed it reflected the nihilistic and arbitrary exercise of power. He actively sought theoretical ways to rein in and contain arbitrary political rule despite the pervasive disenchantment he saw around him. It is awfully strange to unproblematically read Schmitt as a thinker who simultaneously criticized and valorized the reduction of law to power.

Even the less extreme reading of Scheuerman and Dyzenhaus is questionable. There are clear tensions in Schmitt’s writings that need to be answered if one wishes to argue Schmitt buried a moment of arbitrary power in sovereignty. It would be incredibly bizarre if, after spending so much effort decrying the arbitrary pathos of the masses, Schmitt then valorized the arbitrary pathos of an individual. It would be similarly bizarre if Schmitt – who book after book denounced the mere legality of positivism and argued law required legitimacy – ended up arguing law was nothing more than whatever came out of the exercise of power.

It is just not clear what Schmitt had to gain from freeing law from normative restraints and why he would draw attention to the problem of indeterminacy only to later exploit it. Schmitt wanted to restore the state to overcome the state of nature. He thought the state of nature was, after all, where only the strongest rule and do so arbitrarily,107 where man became a wolf to man.108

Critique of the Anti-Liberalism of Carl Schmitt," in Law as Pol t s: Ca l S m tt’s C t qu of L al sm, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 59. 102 Galli, La Genealogia della Politica, 378, 546. 103 McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 283; McCormick, "Fear, Technology, and the State," 626; Habermas, The New Conservatism, 137ff; Wolin, "Carl Schmitt: The Conservative Revolutionary Habitus and the Aesthetics of Horror," 433-435, 443-444; John P. McCormick, "Schmittian Positions on Law and Politics? Cls and Derrida," Cardozo Law Review 21, no. 5-6 (1999-2000): 1703. 104 McCormick, "Schmittian Positions on Law and Politics?." 105 Kalyvas, Democracy and the Politics of the Extraordinary, 91, 93. 106 Schmitt, The Nomos of the Earth, 75-76; Cf.Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton: Princeton University Press, 1983), 17, 136; Gopol Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (New York: Verso, 2000), 133-134; Mehring, Carl Schmit, 254ff. 107 Schmitt, The Nomos of the Earth, 176-177.

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Finally, Schmitt frequently makes arguments that sound an awful lot like natural law, especially concerning the dynamic of Recht and Macht and positivism’s failure to consider Recht as more than Gesetz backed by Macht. Schmitt explicitly criticized what he understood as sophistry: any attempt to legitimate something by appeal to sheer facticity – be it compulsion through sheer power109 or more subtle forms of power like an arbitrary democratic majority. Schmitt insisted Recht could not be derived from Macht or any other fact.110 Renato Cristi drew attention to the problems of ignoring natural law in discussing Schmitt’s jurisprudence – yet exactly this foundation in their interpretations of Schmitt.111

Kalyvas has argued that, for a Hobbesian like Schmitt, chaos, exceptionality, and political disorder were states that needed to be overcome.112 He did not seek to eliminate the norm and create a permanent state of exception.113 To read Schmitt as somehow advocating permanent exceptionalism is incoherent. By distinguishing political status from neutralized or social statuses, it becomes clear Kalyvas is right to argue that Schmitt separates “sovereignty” from ordinary or normal politics.114 Analyzing states of indeterminacy or underdeterminacy and exception is not the same thing as endorsing those states. This section shows that, within a constituted state, Schmitt does provide a sharp critique of an unconstrained decision and instead attributes sovereignty to the “decisive,” “relativizing” status the political provides. Moreover, for Schmitt, the sovereign representative is hardly free. The sovereign is subject to the normative constraints of the meaning of that status as well as the degree to which the people will be able to identify with those decisions. a. The Authority of the Political: Relativizing Status as Sovereign

As discussed in Chapter 2, Schmitt argues law is underdetermined; while this is not a new problem, it cannot be overcome or ignored.115 Positivistic jurisprudence like Kelsen’s, in theorizing the law “purely,” deprives law of a crucial buttress that narrows its range of indeterminacy and restricts its interpretability. Schmitt believes that positive law is not real law [Recht]. For Schmitt, law must be grounded in sovereign authority. And authority, although not

108 Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein (Chicago: University of Chicago Press, 2008), 31; Schmitt, Gespräch Über Die Mache, 12; Schmitt, The Nomos of the Earth, 95-99. 109 Schmitt, The Nomos of the Earth, 73, 72. 110 Schmitt, Der Wert des Staates, 39-43. 111 Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998), 69ff. 112 Kalyvas, Democracy and the Politics of the Extraordinary, 83. 113 Kalyvas, Democracy and the Politics of the Extraordinary, 93ff. 114 Kalyvas, Democracy and the Politics of the Extraordinary, 128-131. 115 Aristotle made this claim 2500 years ago. Aristotle, Nicomachean Ethics, 1137b.. Schmitt’s engagement with the classical understanding of law’s underdeterminacy – beginning with Aristotle and moving through the medieval theorists of natural law – is most apparent in Dictatorship. Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle, trans. Michael Hoelzl and Graham Ward (London: Polity, 2013), 7, 235.

Page | 130 Leviathan Run Aground: Chapter 4 embodying moral “truth” per se, is not totally alienated from it either. The maxim auctoritas non veritas facit legem is not a sophistic assertion of power, it is a claim about how the hiatus destabilizes truth. Authority’s role in making the law does not mean the law is merely power or that “truth” plays no role. To be sure, power and authority are both important and “are, combined with one another, effective and vital in every state.” But to simply equate power and authority is to blind oneself to authority’s independent qualities.116

Turning back to Schmitt’s Der Wert des Staates, power appears to be a necessary evil, needed to realize “pure” Recht in the concrete world.117 Recht, legal truth, stands outside the concrete world. A sovereign must have power to realize Recht. But Schmitt denies power alone creates either sovereignty or Recht. Schmitt, using Hobbes not Protagoras, argues justice is not merely whoever is strongest but comes about through ‘a spark of reason’ that allows humans to conceive of a legitimate state, outside of their natural state. In Legality and Legitimacy, Schmitt describes the legitimation deficit of the quantitative total state.118 As discussed in the last chapter, on core political issues, such as the meaning of a concept like social state or basic rights, who interprets that concept is decisive. Given the plurality of total movements, the interpretation of any concept dealing with political right will ultimately come down to whoever is in power interpreting it and how their beliefs shape their perspective on legitimacy. Other movements, because there is no neutralizing political status, will see this interpretative authority as an exercise of mere power. Schmitt thinks merely positive law in a politically plural state will lead to these interpretative conflicts domestically. And they will ultimately call the legitimacy of the state itself into question. He attacks the rhetorical use of concepts positive legality enables.119 He aims to undermine the possibility of ‘claiming the word for one’s own purposes in order to denounce one’s opponent as the enemy of an established political order.’120

Schmitt’s writings are thus directed against the sort of legal sophistry he is often accused of today. For Schmitt, the meaning of a law or legal concept runs deeper than any subjective interpretation or exercise of power. There are non-legal factors that can help clarify whether an interpretation is legitimate or not. On core political issues, Schmitt believed it was not enough to simply ask the German people whether they thought the NSDAP, SPD, or KPD had the correct interpretation of democracy, for example. Schmitt believed there were more accurate interpretations, grounded in the normative principles a written constitution was based on. He believed the constitution was a higher normative basis than popular sovereignty.

The previous section argued how Schmitt defined the political as the status par excellence, which neutralizes or relativizes other potentially existential conflicts, realizing a status civilis. He goes even further in his discussion of sovereignty, arguing that “the political unity or entity [die

116 Schmitt, Constitutional Theory, 458-459. 117 Schmitt, Der Wert des Staates, 42-43, 56. 118 Schmitt, Legality and Legitimacy, 34-35. 119 cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 75-76, 186-187. 120 Schmitt, Legality and Legitimacy, 14. Paraphrased.

Page | 131 Leviathan Run Aground: Chapter 4 politische Einheit]” itself is sovereign.121 He sets the sovereign in opposition to particular institutions and individuals – constituted powers – within the state. No concrete individual was sovereign. Schmitt has made an incredibly provocative yet very subtle move here. When Schmitt ascribes sovereignty to the political entity, he is literally ascribing sovereignty to the political status. Besides this claim, Schmitt’s work in general is rife with arguments about the role metaphysical entities, like Recht, Ideas, theologies, metaphysics, idées générales, and Weltanschauungen, play in authoritatively determining human life and actions and – more importantly, in legitimating political regimes. Even in early works like Gesetz und Urteil, Schmitt argues that the concrete determinations of abstract legal ideas can be done legitimately by representing an abstracted community of judges.122

Obviously, however, a status cannot actually be sovereign because it lacks deliberative faculties. It does not even exist phenomenally, if it can be said to exist at all. Moreover, in a seemingly cynical manner, Schmitt argued already, citing Hobbes, that the sovereignty of law (or any other higher order) always presupposes the sovereignty of those who actually administer that law and that order. Otherwise, “the rule of law” is nothing but an empty phrase. Thus, the entire question of relativizing status, of the political, ultimately returns the discussion to Hobbes’ questions of quis judicabit? quis interpretabitur? – who decides? who interprets? Likewise, the question of goodness and evilness, of friends and enemies, presupposes already that the question of “who decides” has been answered.123 The solution to the epistemological problem of the hiatus has lexical priority in Schmitt’s account, and all political determinations follow from it. Thus, Schmitt’s claim about the sovereignty of the political unity – when taken at face value – seems to be incoherent: he attributes sovereignty to the meta-juridical neutralizing status after he denied it to “law” and insisted that interpretative authority can only rest with a real deciding person.

Late in his life, Schmitt reopens his discussion of the political by giving three “hints” about Hobbes’ philosophical anthropology and its relation to state theory. His three hints offer a way to make sense of this incoherence. While the first two deal directly with the state, the third stresses the relationship between the political and transcendence. The third hint, discussed already in Chapter 2, is that Hobbes’ system leaves the door open to transcendence. Hobbes too, for Schmitt, recognizes the need to incorporate “truth” into his state theory. Recall his ‘Hobbes Crystal’124:

121 Schmitt, The Concept of the Political, 38-39. 122 Carl Schmitt, Gesetz und Urteil (München: C. H. Beck, 2009), 55-56, 71-72, 77-79; cf. Caldwell, Popular Sovereignty, 53. 123 Schmitt, Gespräch Über Die Mache, 44. 124 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122.

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Hobbes did not think the state was merely a mechanical-technical institution to enforce the arbitrary will of the sovereign, according to Schmitt. To the contrary, its mechanical nature was but one facet of Hobbes’ Leviathan “myth” and it was the process of disenchantment, meaning the loss of a definite anchor in some substantive, objective reason, that led to the state being merely a mechanical, positive institution.125 Instead, what makes Hobbes’ system so admirable is its openness to transcendence, which takes the state beyond being merely positive. According to Schmitt, Hobbes’ state concretized a definite veritas, namely “Jesus is the Christ,” which was compelling enough to its constituents to neutralize politico-existential conflicts that had erupted out of irreconcilable, opposed interpretations of the Confessional Civil Wars. It did so as a higher third, which created a space for friendship among the denominations, depoliticizing their points of conflict but without annihilating them. Schmitt believes Hobbes argued the barest fact of Christianity could serve as an affectively motivating veritas that could simultaneously neutralize the politicization of Protestant and Catholic belief.

Schmitt recognized “truth” in a disenchanted world was a tricky subject: “transcendence” could be any number of ‘neutralizing’ truths. Still, his goal – which he believes he shares with Hobbes – is to find a legitimate yet meaningful basis for political community.126 Whichever veritas was affectively motivating enough to unite a community and depoliticize its other statuses was “the political.” Typical of Schmitt’s work, “the political” turns out to rest upon a series of identities and antitheses. The political is the status par excellence, is the neutralizing status, is sovereign, is the Friend-Enemy distinction, is homogeneity, and is a real community’s existential commitment to concretize some transcendental regulative idea or veritas. The sovereignty of the political means the sovereignty of that ideal. It serves as the criterion of legitimacy for that community: when actions and decisions are made in accordance with the meta-juridical ideal of the political, whatever it may, they are legitimate.

But the problem Hobbes sought to solve, however, was a conflict between truth claims – after all, Protestantism and Catholicism were opposed interpretations of the same truth claim. The dual

125 Schmitt, The Leviathan in the State Theory of Hobbes, 42, Cf. 19, 42-43, 65. See Chapter 5 for a longer discussion of this point. 126 Cf.Norris, "Carl Schmitt on Friends, Enemies and the Political," 78.

Page | 133 Leviathan Run Aground: Chapter 4 problem of the hiatus is that there are plural Weltanschauungen but also plural ways to interpret a single Weltanschauung. In agreement with Hobbes, Schmitt argues that an abstract truth cannot actually “rule,” it has no agency and requires some agent in order to be realized and made effective. The fact that the “sovereign” lies on the wrong side of the hiatus is a source of political conflict. Thus, although norms are sovereign, they are absent and cannot perform their role: to provide concretely order. No “veritas” is self-effecting.127 In the chaos of the state of nature, claims about veritas have no foundation to stand upon and are the topic of polemical dispute.128 Nevertheless, Schmitt places transcendence and veritas at the top of his Hobbes-Crystal. He places interpretative authority only at the third “center” axis, around which his Hobbes-Crystal turns. This emphasizes that interpretative authority is not arbitrary rule. It is subordinate to something else: either the system of needs or the transcendent truth orientation. The requirement of security or protection is clear enough. Authority aims to close the hiatus by reaching out to a substantive source of legitimacy.129 By deciding on something indefinite (and maintaining it through future decisions on the nature of cases in legal penumbra), Schmitt acknowledges that there is indeed an element of indeterminacy in the sovereign decision for a particular veritas. But that act of concretization is not wholly arbitrary and the authority to interpret is limited by what it aims at interpreting. b. Representation I: The Model of Suprapersonal Rule in the Church’s Office Charisma

Political status is “sovereign” but it requires some interpretative authority to act and decide on its behalf. Schmitt argued in Der Wert des Staates (1914) that “Recht” cannot self-effect but requires an agent to realize it in the world.130 He argues further that this agent must be the state. In this early work, Schmitt argues the Catholic Church serves as a model for the state in terms of how to represent Recht in the world. He writes “[According to the doctrine of the Roman Catholic Church], the infallible Pope is nothing in himself, he is only an instrument, the vicar of Christ on earth, servorum servus Dei. Likewise, the will of the absolute ruler can desire nothing more than what is right [Recht].”131 Schmitt repeats this argument in Dictatorship.132 Hardly making a case for sophistry or arbitrary decisionism, Schmitt argues that the Pope is the Pope not because he has the power of his office but because “the Pope” represents the Church and is the Vicar of Christ: the Pope is bound to the Idea of Christ. The pope’s legitimacy is not something

127 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122-123; Cf. Schmitt, On the Three Types of Juristic Thought, 51. 128 Horst Bredekamp, "From to Carl Schmitt Via Thomas Hobbes," Critical Inquiry 25(1999): 252; Voigt, "Thomas Hobbes und Carl Schmitt," 16; Wolfgang Kersting, "Carl Schmitt und Thomas Hobbes," ibid., 95ff. 129 Kersting, "Carl Schmitt und Thomas Hobbes," 99ff. 130 Schmitt, Der Wert des Staates, 50, 56-58; cf. 44-84. There, the state is defined by and created by Recht; its meaning consists solely in its duty to realize Recht. By 1927, the state is defined by and created by “the political”; its meaning consists solely in its duty to realize “the political.” While Recht and “the political” are distinct concepts, they do play a similar role in his theory and have significant conceptual overlaps as transcendent, meta-juridical and meta-institutional sources of law and institutionalized politics. 131 Schmitt, Der Wert des Staates, 96, 102. 132 Schmitt, Dictatorship, 39ff.

Page | 134 Leviathan Run Aground: Chapter 4 obtained by fiat from the past, as traditional legitimacy. Nor is it a quality emanating from his personal charisma, as charismatic legitimacy. Finally, it is not inherent to the formal rationality of his rule, as rational-legal legitimacy is. Instead, the legitimacy of the Papacy consists in its office-holder’s ongoing approximation of the ideal of the office and those (Catholic) values associated with it.133

Schmitt takes this argument up again in his Roman Catholicism in Political Form (1923). Again, he models political representation on the Papacy. Schmitt again emphasizes the subordination of the representative to what is represented: “representation invests the representative person with a special dignity” so that “an authoritative person or Idea becomes personified.”134 A representative must do justice to the Idea represented.135 Interestingly, Schmitt argues, citing Jellinek, that parliament was legitimate when it aimed at this type of representation because it too functioned as a complexio oppositorium, uniting a plurality of diverse interests and movements.136 That a political representative concretizes some Idea of Recht – some “authority from above” – to create a legitimate, non-tyrannical political regime underlies Schmitt’s early Weimar writings.137 One finds this argument also in The Concept of the Political, where Schmitt continues to use Catholicism as a model for political representation. He argues there the Pope ceases to be a representative of God when he fails to concretize the Idea of Catholicism and instead uses the office to further his (tyrannical) self-interests, impulses, and drives.138 Schmitt adds to this conception that the rule of law or ethical rule actually means that those who actually rule are oriented by those normative ideals and seek to concretize them, giving norms reality.139

In On the Three Types of Juristic Thought, written two decades after Der Wert des Staates and one decade after Roman Catholicism and Political Form, Schmitt again discusses political representation using the Catholic Church as his model. There, however, Schmitt seems to have a better sense of how to separate “arbitrary,” tyrannical decisionism from the decision of a legitimate representative. He begins by discussing , who weighed in on the dilemma in Plato’s Euthyphro arguing that ‘what God commands is good simply because God commanded it.’ But, Schmitt cautions, although God’s command appears to be “pure decisionism,” it is not. Tertullian’s argument presupposes both a Christian “order” and that “God” is a Christian God, which is to say Tertullian believes God’s explicit (political) commands are such only because they are grounded in a preexisting and defined theological order.140 Thus, the command realizes

133 Cristi, Carl Schmitt and Authoritarian Liberalism, 78. 134 Carl Schmitt, Roman Catholicism and Political Form [Römischer Katholizismus und politische Form], trans. G.L. Ulmen (London: Greenwood Press, 1996), 21. 135 Schmitt, Roman Catholicism and Political Form, 12; Cf. Kelly, "Carl Schmitt's Political Theory of Representation," 155. 136 Schmitt, Roman Catholicism and Political Form, 26. 137 Schmitt, Roman Catholicism and Political Form, 27, 30-31. 138 Schmitt, The Concept of the Political, 59; cf. Strauss, "Notes on the Concept of the Political," 98-99. 139 Schmitt, "Ethic of State and Pluralistic State," 207. 140 Schmitt, On the Three Types of Juristic Thought, 60.

Page | 135 Leviathan Run Aground: Chapter 4 an abstract order – but the legitimacy of the command, even God’s command, is determined by that order. He follows his discussion up with an argument that should sound familiar by now:

The Roman Catholic Dogma of the infallibility of a Papal decision likewise contains strong juristic-decisionistic elements; but the infallibility of the decision of the Pope does not establish the order and institution of the church but presupposes them: the Pope is, as head of the church, only infallible in the power of his office; the Pope is not vice versa infallible.141

The pope cannot abruptly decide the only legitimate Gospel is that according to Richard Dawkins, regardless of his sovereign representative authority. The legitimacy of an authority hinges on his or her relationship to that order (Recht).

Yet Schmitt had difficulty articulating exactly how sovereign representation would not end up being arbitrary nonetheless. The need for representation of an Idea and the validity of that Idea still were problematic. Because of the hiatus, there was still an interpretative deficit. But to allow totally individuated interpretation of the political risked reintroducing the very civil war the state was intended to solve. In 1934, he began to reformulate his ideas in terms of suprapersonal rule (a function of “concrete-order” thinking) in his efforts to delimit it from the arbitrary rule of a tyrant.142 Yet this account continues his earlier arguments about representation originally developed with reference to the Papacy. He affirms Pindar’s nomos basileus: law is king. The requisite for a legitimate human “king” is he become nomos incarnate.143

Schmitt’s arguments about authority and legitimacy, especially in relation to representation, has been read by Dyzenhaus as endorsing a form of Weber’s charismatic authority against the rational-legal legitimacy of the legislative or bourgeois Rechtsstaat.144 But charismatic authority cannot capture Schmitt’s claims about legitimacy. Neither was Schmitt interested in the radical and revolutionary qualities of charismatic authority. In fact, charismatic authority seems to embody the opposite qualities of what Schmitt describes as the legitimate authority of a Pope or King. Carlo Galli argues that Schmitt models legitimate sovereign representation on Weber’s often overlooked second type of charismatic authority: office charisma.145 Thus, this form of charismatic authority, while still not “congealing” like rational-legal legitimacy, remains a conservative and non-revolutionary force. And it is not centered on an individual. Schmitt

141 Schmitt, On the Three Types of Juristic Thought, 60. 142 Schmitt, On the Three Types of Juristic Thought, 43-45; Cf. Bendersky, "Introduction," 20. 143 Schmitt, On the Three Types of Juristic Thought, 49-51. 144 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997), 14-15; David Dyzenhaus, "The Concept of the Rule-of-Law State in Schmitt's Verfassungslehre," in The Oxford Handbook of Carl Schmitt, ed. Oliver Simons and Jens Meierhenrich (Oxford: Oxford University Press, 2014), 14. 145 Galli, La Genealogia della Politica, 258. John McCormick also points in this direction, but stops short of recognizing its source. McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 163. Max Weber, Economy and Society: An Outline of Interpretive Sociology 2vols., vol. 2 (Berkeley: University of California Press, 1978), 1163-1167.

Page | 136 Leviathan Run Aground: Chapter 4 advocates the “traditional” juridical authority of office charisma against the “modern” juridical authority of rational-legal legitimacy.146 Schmitt writes, echoing Weber, “the Pope is not the Prophet but the Vicar of Christ…The fact that the office is made independent of charisma signifies that the priest upholds a position which appears to be completely apart from his concrete personality.”147 In this model of representation, charisma separates from the person entirely and centers instead on the institution – thus an institution partakes of “personal” qualities normally attributed to real individuals.

Thus, political authority is neither arbitrary nor the product of revolutionary charisma for Schmitt. It is bound to transcendent normative ideas, which individuals ideally represent in the world. Above all, sovereign representation is of an Idea underlying a political order.148 It is worth noting that this ideal develops after Schmitt’s fascination with neo-Kantianism, in particular Vaihinger: what is represented serves as a regulative idea (perhaps only as a necessary fiction) for both the representer and for the people governed by it. In formulating representation this way, Schmitt aimed at a means to avoid the congealed soul, the “iron-cage,” of positivism or rational-legal legitimation without enabling tyranny. His solution was to model representation on office charisma, which emanates from an institutional order rather than personal charm. c. Representation II: Hobbes and The Artificial Personhood of Political Status

Duncan Kelly argues Schmitt turned to Hobbes to define representation as he moved away from Catholicism.149 Yet, although how Schmitt conceives of representation does evolve, its theoretical core remains the same. And, as before, his aim here is to provide a way to rein in arbitrary sovereign representative acts – not to find ways to legitimate them.

A brief exposition of Hobbes’ theory lays the foundation for discussing the later developments of Schmitt’s understanding of representation.150 Hobbes describes representation by distinguishing between natural persons, who are concrete individuals with agency, and artificial or fictional persons, who lack agency and cannot take responsibility for their actions.151 He writes an artificial person could be biologically human but too young, irrational (insane), or incompetent to form intentions and act upon them. Or an artificial person could be a natural person who commissions another to act in her name because she is unable to. Finally, an artificial person

146 McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 162. 147 Schmitt, Roman Catholicism and Political Form, 14. Compare to Weber, Economy and Society, 2, 1163. “For the decisive fact is the separation of Charisma from the person and its linkage with the institution and, particularly, with the office; from this fact derive all the above features, which we find developed in different degrees of 'typicality… the church is the bearer and trustee of an office charisma, not a community of personally charismatic individuals, 148 Galli, La Genealogia della Politica, 792. 149 Kelly, "Carl Schmitt's Political Theory of Representation," 127-132. 150 My discussion here is attenuated in light of its ends. For those seeking a deeper engagement with the relationship between Schmitt and Hobbes, Kelly’s above-cited discussion is invaluable. 151 Thomas Hobbes, Leviathan (Indianapolis: Hackett Publishing Company, 1994), 202; Quentin Skinner, "Hobbes and the Purely Artificial Person of the State," The Journal of Political Philosophy 7, no. 1 (1999): 11-14.

Page | 137 Leviathan Run Aground: Chapter 4 could be an inanimate object, such as a building, corporation, or concept – an object that may not exist but which we treat as if it were real.152 Only a natural person can actually deliberate, decide, and act. Yet, like natural persons, artificial persons still need to deliberate, act, and have their interests accounted for. They just lack the ability to do so themselves. With “authority,” Hobbes solves the juridical problem of how artificial persons can do so: to authorize is to enable another to act on one’s behalf.153 It is accompanied by the responsibility for whatever that authorized other does in one’s name, as if one actually were the author of those acts. An authority is the author of another’s acts. The authority represents that author.154 “Representation allows those who are incapable of acting otherwise to be capable of having words and actions truly attributed to them.”155 It makes artificial persons juridically real and their actions meaningful, even though they actually are not, thereby allowing even fictions to effect the world concretely.

Schmitt understands representation in similar terms. He writes in his Constitutional Theory, “Representation is something existential. To represent is to make an invisible being visible and present through a publicly present one. The dialectic of the concept is that the invisible is presupposed as absent and nevertheless is simultaneously made present.”156 Schmitt believes the representative aims to embody the essence of what is represented and give it material reality. The most important quality of a political community, its decisive or neutralizing status, is exactly one such entity that has no presence or “visibility” and thus stands in need of representation. Political status cannot act or deliberate: it is “unorganized” and “unformed.”157 Representation overcomes this barrier.

In his Constitutional Theory, Schmitt contrasts the concepts of Representation and Identity. Here, Identity has a narrower meaning than when Schmitt uses it to discuss “the political.” It seems to mean when individual or private identity and how that relates to political identity. Each individual is comprised of infinite qualities that constitute his or her particular private identity. Individuals identify with an order and with one another when they recognize its political status as their own. Rousseau’s contrast of the volonté générale (general will) and the volonté des tous (will of all) adds another layer to Schmitt’s antithesis of Representation and Identity.158 The volonté générale seems to be the equivalent of Representation, it is an abstract, public identity. When an individual represents it, she transcends the qualities that individuate her distinct and

152 Cf. Hans Vaihinger, T P losop y of ‘as If’, trans. C. K. Ogden (London: Routledge & Kegan Paul Ltd., 1965), vii, 33-54, 116-124. Vaihinger draws attention to this aspect of Hobbes’ thought in particular regarding “as if” formulations. For Schmitt’s relationship to Vaihinger, see Chapter 1. Cf. Mehring, Carl Schmit, 44ff. 153 Hobbes, Leviathan, 101-102; Skinner, "Hobbes and the Purely Artificial Person of the State," 8. 154 Hobbes, Leviathan, 102; Skinner, "Hobbes and the Purely Artificial Person of the State," 7. There is a direct inverse relationship between these concepts: Author is to Authorized as Represented is to Representative. 155 Skinner, "Hobbes and the Purely Artificial Person of the State," 16; Cf. Hobbes, Leviathan, 104. 156 Schmitt, Constitutional Theory, 243; Cf. Böckenförde, "The Concept of the Political," 49-50; Schmitt, Roman Catholicism and Political Form, 19; Schmitt, Political Theology, 48. 157 Schmitt, Constitutional Theory, 271. 158 Schmitt seems to have this distinction in mind when he cites Rousseau’s ideal of the citoyen as representative and a necessary feature of representation – even in democracy. Schmitt, Constitutional Theory, 240, 280ff.

Page | 138 Leviathan Run Aground: Chapter 4 different from her political community and arrives to the core essence she shares the rest of her community. The volonté des tous, as the equivalent of Identity, is particular, private identity. Schmitt argues that Identity, unlike Representation, too is absolutely necessary for any political community to be non-tyrannical: if there were only representation, there would be a state without a people, a res populi without a populus.159 That is, one must actually recognize qualities in oneself that one shares with one’s fellow citizens – not to mention with the res publica itself.

Kalyvas draws our attention to the fact that Schmitt does allow a moment of sovereignty in the pre-constitutional “people”160 – although this moment is more constrained than Kalyvas believes it to be. Schmitt does argue Identity, the actually existing pre-constitutional people’s recognition of political acts as their own, is crucial. To be representative, sovereign acts must appear to be in the public good. Schmitt says of a represented political status that “[it] is not a palpable reality, but rests on a recognition of identity. It is not a matter of something actually equal legally, politically, or sociologically, but rather of identifications…They can never reach an absolute, direct identity that is actually present at every moment.”161 But, he qualifies, outside of mathematics, identity can only be obtained through abstraction; homogeneity occurs only at the level of the Idea. Nevertheless, even though identity cannot be had with mathematical precision, a sovereign representative is still constrained by the need to have actual individuals identify with their community’s core existential values. Should the sovereign representative’s private interests, rather than the political status, dominate its actions, its representative legitimacy is overturned.162 Without some degree of political Identity, there is no legitimate community.

But Schmitt stresses that political community cannot consist in Identity alone. There cannot be a totally individuated community. The “community” would merely be an unprincipled society of individuals lacking in any basis for cooperation aside from personal gain. Schmitt believes, however, that in such a society all agreements and interactions would be conducted with the same existential reservations plaguing Weimar’s parliament. A political community requires a ‘mixture’ of both principles.163 The state must somehow simultaneously represent a political status that its constituents already identify as their own status. Representation is necessary to mediate the real empirical differences among individuals and to shape their shared political identity.164 In Schmitt’s typology, representation subtracts all individuating qualities, all other statuses, from concrete individuals to produce their existential core.

Drawing on the work of Rudolf Smend, Schmitt argues that representation is the “static” element of a political body, providing it with an important source of stability and coherence. It must be complemented by a dynamic, integrating aspect that aims to incorporate the distinct, plural

159 Schmitt, Constitutional Theory, 248. 160 Kalyvas, Democracy and the Politics of the Extraordinary, 164ff. 161 Schmitt, The Crisis of Parliamentary Democracy, 26-27; Schmitt, Constitutional Theory, 248-250. 162 Cf. Carl Schmitt, "The Plight of European Jurisprudence," Telos 83(1990): 47-49. 163 Schmitt, Constitutional Theory, 247. 164 Kelly, "Carl Schmitt's Political Theory of Representation," 121.

Page | 139 Leviathan Run Aground: Chapter 4 individuated identities into its political unity.165 Thus, Schmitt’s dynamic of Representation and Identity appears rather Hegelian: an individual comes to recognize himself in the collectivity through the integrative efforts of that collectivity and the “rationality” of the Idea it embodies. Civic education is important to community by teaching its constituents why its values matter.

Thus, Schmitt argues the political status, rather than some individual, is authoritative and sovereign. Its sovereignty is nominal, however, because it is an artificial person and requires a sovereign representative person to represent it and act on its behalf. The task of this representative is, thus, to make present what “friends” recognize as their existential political identity – to make present what constitutes them as friends. While the representative clearly has some latitude in how to concretize this status, Schmitt does not think authority is license for tyranny. It is the political status, the political grouping oriented by some transcendental veritas, that is authoritative – not the arbitrary decisions of a “sovereign” that just happens to have the most power.166 Hobbes’ auctoritas, non veritas facet legem “is anything but a slogan of irrationalism despotism.”167 Representation, sovereignty, and the political are deeply grounded in questions of legitimacy in modern political form. Schmitt eventually dissociated his theory from “decisionism” precisely because decisionism implied the political arbitrariness that he criticized. But even when he described his theory as decisionistic, it is in this sense of concretizing the sovereign Idea.

Conclusion: The Loss of the Monopoly of the Political

Schmitt thought “political unity” was decisive for whether normality, order, and security could be attained – which is to say, political unity was the prerequisite for overcoming the state of nature. He also clearly did not believe political homogeneity extended beyond the political. Schmitt defined this relativizing status as “the political.”

Schmitt’s concept of the political is linked to his critique of modern mass democracy and the quantitatively total state. Ideally and historically, the state monopolized the political, which led many to believe it the political was merely derivative of the state. Against this assumption, Schmitt argue the plurality of total movements arising from modern mass democracy undermined the state’s ability to create this decisive status. To return to the discussion from Chapter 3, Schmitt believes mass democracy led to the politicization of society: plural total Weltanschauungen sought to impose their total worldviews across all of society by exploiting the democratic representative nature of institutions like parliament and rewriting the constitution

165 Schmitt, Constitutional Theory, 60-62; Carl Schmitt and Rudolf Smend, „ uf der gefahrenvollen Straße des öff tl R ts“ fw s l Ca l S m tt – Rudolf Smend 1921-1961 (Berlin: Duncker & Hmblot, 2010), 40-41. 166 Schmitt, The Concept of the Political, 38. Even a vociferous critic of Schmitt like Scheuerman eventually must admit that Schmitt’s ideal of political representation is not some arbitrary tyrant, but an expression of the community as a body transcending its constituent parts. Scheuerman, Carl Schmitt, 46-47, 51. 167 Schmitt, The Leviathan in the State Theory of Hobbes, 44.

Page | 140 Leviathan Run Aground: Chapter 4 according to those worldviews. Each total movement was constituted by a different political status, even to the point of constituting their identity negatively in contrast with one another. The partial interests of total movements wanted only to instrumentalize the state’s institutions for themselves and their particular concept of the political. Hardly the basis for stability.

Schmitt’s “career-defining” sentence was intended to assert the independence of the political and argue for the importance of a definite political status for restoring authority to the state. The problem Schmitt aimed to solve was how the state could regain its monopoly over the political in order to become qualitatively total again and relative the factionalism and violence caused by political pluralism. This meant determining whether any decisive status could be decided on for Weimar and how the state could authoritatively assert it. To do so, required Schmitt to turn to state and constitutional theory.

Page | 141 Leviathan Run Aground: Chapter 5

Magnus Homo: Carl Schmitt’s State and Constitutional Theory

The achievement of a normal state is to relativize its internal opposing factions and to prevent their ultimate consequence, war. – Carl Schmitt, Hugo Preuß

The state is a kingdom of reason (this formula originates in Hobbes and is not first found in Hegel), an imperium rationis, which transforms civil war into the peaceful coexistence of citizens. – Carl Schmitt, “Remarks” to Der Begriff des Politischen

Introduction

From his Copernican1 inversion of the relationship between state and political, it is clear Schmitt believed “the political” contained a significant part of his state theory already.2 But Schmitt’s state theory is not exhausted by the political. Schmitt believes a defining characteristic of the 20th century state is that the political has become independent from the state – and this is a massive problem both for the state and for peace. Through his polemics against “indirect powers,” lamentations about political pluralism and factionalism, and panegyrics of Hobbes’ Leviathan and the state’s direct power, Schmitt clearly thought the state’s monopoly over the political should be restored. This chapter extrapolates Schmitt’s state and constitutional theory.

1 Carl Schmitt, "Un Giurista davanti a se stesso," in Carl Schmitt: Un Giurista davanti a se stesso, ed. Giorgio Agamben (Vicenza: Neri Pozza Editore, 2012), 156. 2 Ernst-Wolfgang Böckenförde, "The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory," in Law as Pol t s: Ca l S m tt’s C t qu of L al sm, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 37, 41; Ellen Kennedy, "Hostis Not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt," ibid., 92.

Page | 142 Leviathan Run Aground: Chapter 5

Some contemporary interpreters, such as Carlo Galli, have argued Schmitt had abandoned the state.3 Christoph Schönberger argues instead that there is a tension in Schmitt’s thought. Some of his later works, such as The and his writings dealing with Großräume do suggest that he believed the state was dead.4 Yet Schmitt continued to return to the theme of the state and, although he acknowledges it is in crisis, he has difficulty completely turning his back on it.5 And while Schmitt never wrote anything resembling a traditional German Staatslehre, it would be a mistake to conclude he had no state theory. One can be extrapolated from his writings. Alongside his work on the political are fragments of his theory of the qualitatively total state. Schmitt uses Hobbes’ state theory extensively to develop his own understanding of the state and the status naturalis. Eric Voegelin argues Schmitt’s Constitutional Theory shows there is an intimate relationship between state and constitution.6 Schmitt’s constitutional theory provides an essential component of his state theory.7 Moreover, Schmitt began his Constitutional Theory as his attempt at an Allgemeine Staatslehre (in conjunction with his 1926 article “Absolutismus”).8 Finally, commentators have noted that, “like Hobbes, Schmitt’s entire intellectual production was marked by a radical defense of the state.”9 This all suggests that Schmitt indeed provided ample material to extrapolate his state theory.

However, few authors have approached Schmitt’s state theory head on. The most conspicuous absence lies in a thorough study of Schmitt’s relationship with Hobbes, whom he considered to

3 Carlo Galli, La Genealogia della Politica: Carl Schmitt E La Crisi Del Pensiero Politico Moderno (Bologna: Il Mulino, 1996), xv. 4 Christoph Schönberger, "„Staatlich und Politisch" (20-26): Der Begriff des Staates in Carl Schmitts Begriff des Politischen," in Der Begriff des Politischen: ein kooperativer Kommentar, ed. Reinhard Mehring (Berlin: Akademie- Verlag, 2003), 21-22. For this reason, these texts have played a comparatively minor role in this dissertation. 5 Schönberger, "„Staatlich und Politisch"," 22ff. 6 Eric Voegelin, "Review of Verfassungslehre by Carl Schmitt (1931)," in Selected Book Reviews, ed. Jodi Cockerill and Barry Cooper (Columbia: University of Missouri Press, 2001), 42. 7 Ernst Fraenkel and Karl Loewenstein both refer to his Verfassungslehre as his state theory when they discuss it in English. Karl Loewenstein, "Observations on Personality and Work of Professor Carl Schmitt," (Karl Loewenstein Papers: Amherst College Archives and Special Collections, 1945), 2; cf. Ernst Fraenkel, "Zur Auseinandersetzung Mit Carl Schmitt - Besprechung Von: Peter Schneider, Ausnahmezustand und Norm, Eine Studie Zur Rechtslehre Carl Schmitts, Stuttgart 1957 (1957)," in Gesammelte Schriften, ed. Hubertus Buchstein and Rainer Kühn (Baden-Baden: Nomos Verlagsgesellschaft, 1999). German legal theorists seemed to consider a Verfassungslehre as an extension or form of an Allgemeine Staatslehre in the tradition of Jellinek, such as Karl Loewenstein. Markus Lang, "Karl Loewenstein: From Public Law to Political Science," in German Scholars in Exile: New Studies in Intellectual History, ed. Axel Fair-Schulz and Mario Kessler (Lanham: Rowman & Littlefield, 2011), 25. 8 Carl Schmitt and Ludwig Feuchtwanger, Briefwechsel 1918-1935 (Berlin: Duncker & Humblot, 2007), 123. Schmitt wrote to Feuchtwanger on January 3rd, 1925 “I hope to work hard over the holidays, first on a "philosophy of state" (for a Handbook), and then on a general theory of the state, by which I hope it becomes a good compendium both systematically and empirically and surpasses the many dilettantish attempts of recent decades. The Handbuch contribution was his article “Absolutismus” (1926); the Allgemeine Staatslehre became his Verfassungslehre (1928). 9 Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998), 4; cf. Helmut Rumpf, Carl Schmitt und Thomas Hobbes: Ideelle Beziehungen und aktuelle Bedeutung mit einer Abhandlung über die Frühschriften Carl Schmitts (Berlin: Duncker & Humblot, 1972), 109ff; Joseph W. Bendersky, Carl Schmitt: Theorist for the Reich (Princeton: Princeton University Press, 1983), 285.

Page | 143 Leviathan Run Aground: Chapter 5 be his 17th century forerunner and his teacher, brother, and friend.10 While Schmitt considered this to be the case because both were concerned first and foremost with the problem of civil war and its relationship to the state and political order, scholars writing on Hobbes and Schmitt have tended to focus on peripheral questions and issues. Examples include: Does Hobbes’ individualism lead to the “fissure” Schmitt describes?11; Does Hobbes share Schmitt’s other concerns, such as the enemy?12; What is the role of potentia (a concept Schmitt never used) in Hobbes and Schmitt’s political theories?13; and finally, a rebottling of the well-known argument that his 1938 Leviathan was an esoteric critique of the Third Reich.14 In addition, there is also Springborg’s confused argument that Schmitt hoped to steer the Third Reich toward Catholicism but did not realize Hobbes’ goal was to contain religious sectarianism with his Leviathan.15 She seems to be totally unaware that Schmitt devoted so much of his time discussing the dangers of indirect powers, especially the Catholic Church, present to political order.

Aside from these approaches, scholarship in English has largely overlooked the core of Schmitt’s interest in Hobbes and what he took away from Hobbes – with the exceptions of John McCormick and Duncan Kelly.16 They rightly describe how Schmitt was interested in Hobbes above all for how he dealt with civil war (and what Hobbes’ theory about Confessional Civil War’s meant for its “20th century equivalent,” modern mass democracy) and his “pessimistic” philosophical anthropology.

McCormick focuses on the relationship between Schmitt’s philosophical anthropology and his state theory. In particular, he look at how Schmitt follows Hobbes in characterizing “fear” as the central means to overcome humans’ inherent “evil” and change their relationship from homo homini lupus [man a wolf to man] to homo homini homo [man a man to man], i.e. from the state of nature to the civil state.17 McCormick rightly argues that Schmitt believes the state’s

10 Carl Schmitt, Ex Captivitate Salus: Erfahrungen der Zeit 1945/47 (Berlin: Duncker & Humblot, 2010), 64, 66-68; Horst Bredekamp, "From Walter Benjamin to Carl Schmitt Via Thomas Hobbes," Critical Inquiry 25(1999): 254. 11 Gabriella Slomp, "The Liberal Slip of Thomas Hobbes’s Authoritarian Pen," Critical Review of International Social and Political Philosophy 13, no. 2-3 (2010); Timothy Stanton, "Hobbes and Schmitt," History of European Ideas 37(2011). 12 Stephen Holmes, "Does Hobbes Have a Concept of the Enemy?," Critical Review of International Social and Political Philosophy 13, no. 2-3 (2010). 13 Carlo Altini, "Potentia' as 'Potestas' : An Interpretation of Modern Politics between Thomas Hobbes and Carl Schmitt," Philosophy & Social Criticism 36(2010). 14 Johan Tralau, "Order, the Ocean, and Satan: Schmitt’s Hobbes, National Socialism, and the Enigmatic Ambiguity of Friend and Foe," Critical Review of International Social and Political Philosophy 13, no. 2-3 (2010). 15 Patricia Springborg, "Hobbes and Schmitt on the Name and Nature of Leviathan Revisited," ibid. 16 Jan-Werner Müller, "Re‐Imagining Leviathan: Schmitt and Oakeshott on Hobbes and the Problem of Political Order," ibid; John P. McCormick, "Teaching in Vain: Thomas Hobbes, Carl Schmitt and the Crisis of the Sovereign State," in The Oxford Handbook of Carl Schmitt, ed. Oliver Simons and Jens Meierhenrich (Oxford: Oxford University Press, 2014); David Dyzenhaus, "Leviathan in the 1930s: The Reception of Hobbes in the Third Reich," in Confronting Mass Democracy and Industrial Technology: Political and Social Theory from Nietzsche to Habermas, ed. John P. McCormick (Durham: Duke University Press, 2002). 17 John P. McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology (Cambridge: Cambridge University Press, 1997), 252.

Page | 144 Leviathan Run Aground: Chapter 5 overwhelming power “corrects” its constituents’ innate evil and this power, insofar as it is able to serve as their “protector,” entitling the state to their obedience.18

But McCormick’s interpretation starts to unravel when he limits himself only to Schmitt’s reading of Hobbes’ state as a mechanical apparatus or a product of an “age of technology.” Based on this reading, McCormick goes on to argue that Schmitt “might have paid better attention” to the other facets of Hobbes’ myth of the state, particularly how it is more than machine – a great man and a mortal god.19 In McCormick’s reading, then, Schmitt’s state theory ends up looking exactly like what McCormick rightly argues Schmitt intended to criticize: a purely mechanical quid pro quo exchange of physical protection for obedience – obedience, he argues, to whatever (positive) law happens to be produced by the state.20 He goes on to argue that Schmitt’s oversight leads him to aestheticize violence. McCormick then argues that “if a state is purely mechanical, if no value inheres within it other than efficiency, then that state knows no boundaries or limits – not even that which is theoretically restrained in the Hobbesian state: the protection of individual life.”21 He believes that this is because Schmitt had no answer to the question of “what is to keep the [state] from being a force of indiscriminate domination instead of objective neutrality.”22 For McCormick, Schmitt’s state is purely mechanical and incapable of generating any meaning in the lives of its constituents.

McCormick’s interpretation unravels because he does not incorporate all of Schmitt’s arguments, arguments that would address the objections he raises against Schmitt. For example, as will be shown, Schmitt does not believe Hobbes’ state was strictly mechanical. He writes Hobbes based his state on a richer “myth,” the same one McCormick wishes Schmitt had “paid better attention to.” Schmitt is alarmed that Hobbes’ myth has subsequently become impoverished and reduced to just its mechanical aspect by subsequent generations through the same process of disenchantment that looms in the background of all of Schmitt’s work. The loss of the “mortal god” and the “giant man” images of the state – those images that make it more than just an institution of positive law, of indiscriminate domination, and mere mechanical protection and obedience – are precisely what Schmitt laments having been disenchanted.23 McCormick’s criticism of Schmitt turns out to echo Schmitt’s own criticism of the 20th century state! And Schmitt has far more to say about this richer “myth” than McCormick lets on.

Duncan Kelly, although he does not really delve into the relationship between Schmitt and Hobbes, does engage with Schmitt’s state theory, in part through the lens of McCormick’s analysis. Kelly accuses Schmitt of constructing a tautological state theory: “the state is political

18 McCormick, Ca l S m tt’s C t qu of L al sm: gainst Politics as Technology, 253, 273ff. 19 McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 283-284. 20 McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 275. 21 McCormick, "Teaching in Vain," 23; McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as Technology, 279ff. 22 McCormick, Ca l S m tt’s C t qu of L al sm: ga st Pol t s as T ology, 279. 23 Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein (Chicago: University of Chicago Press, 2008), 34-35.

Page | 145 Leviathan Run Aground: Chapter 5 unity is the state.”24 As argued in the last chapter, this is actually the opposite of Schmitt’s theory: the crisis of the 20th century state was that the political had been totally unhinged from the state. Its independence undermined the state’s authority and legitimacy and led to civil war. While Schmitt sought to reunite them, arguing the state should have a monopoly over the political, the state and the political were not identical.

Kelly, like McCormick, correctly points to the role Schmitt’s philosophical anthropology plays in his state theory. The human propensity for “evil,” which “makes man dangerous,” is the source of instability and conflict within the state.25 It is also the reason why the state is necessary in the first place. But, like McCormick, the relationship of “evil” to the state of nature remains at best implicit in Kelly’s account.26 Kelly does not go beyond a “negative” critique of human anthropology and concludes that Schmitt’s response to evil lay in his interpretation of Hobbes’ state as a mechanical myth – a conclusion he inherits from McCormick.27

The first section of this chapter shows Schmitt’s interpretation of Hobbes is richer than the above interpretations allow. After a brief discussion of Schmitt’s qualitatively total state and positive or active neutrality, it proceeds to develop his state theory in the context of his work on Hobbes. It looks at the meaning of anthropological “evil,” moving beyond Kelly and McCormick. Finally, it turns to Schmitt’s interpretation of Hobbes’ Leviathan and argues that it is far more complicated than a merely mechanical state. The second section looks at the relationship between constitution and state, discussing how the content of Schmitt’s state is filled by the values laid out in the Positive articulation of the Absolute Constitution – and how this link serves as the way point for the constitution of the relativizing status of a community. It also discusses how the “Relativization” of the Constitution, caused by disenchantment and positivism, are the constitutional reflection of the problem of mass democracy as discussed in Chapter 3.

Finally, this chapter discusses how the concept representation plugs into Schmitt’s state theory. A big deal has been made of the relationship between Schmitt’s theory of dictatorship and his well-known arguments about the Reichspräsident and Article 48 of the Weimar Constitution. Scholars have drawn attention to the fact that commissarial authority and sovereign power are not easily separated – and Schmitt was naïve to believe his approach could contain problems of instability and civil chaos like Weimar’s.28 Others go further and argue that Schmitt’s arguments are proof of his proto-fascism and he intended to seize legal possibilities to instate a plebiscitary

24 Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford: Oxford University Press, 2003), 187. 25 Kelly, The State of the Political, 221. 26 Kelly, The State of the Political, 245-247. 27 Kelly, The State of the Political, 255. 28 Hans Kelsen, Wer Soll der Hüter der Verfassung Sein? (Berlin-Grunewald: Dr. Walther Rothschild, 1931), 49; Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durhan: Duke University Press, 1997), 115-116; Kelly, The State of the Political, 178, 209ff, 236.

Page | 146 Leviathan Run Aground: Chapter 5 dictatorship.29 Those who do go further are right to draw attention to the problems in attempting to delimit commissarial from sovereign dictatorship. Nonetheless, there is a fine line between these two claims. This chapter argues that Schmitt did not aim at establishing a sovereign dictatorship. Instead, consistent with the last chapter’s discussion of representation, he sought a “defender” of the constitution. Schmitt sought a representative of the constitution in effect, of an imperium rationis over and against the irrationalism of modern mass democracy.

1. Above and Below: The Great Man and Technical Perfection

Schmitt’s most esoteric book analyzes the meaning of “Leviathan” in Hobbes’ state theory. While Schmitt’s interpretation may be important for Hobbes scholarship,30 this book is invaluable for interpreting Schmitt himself. He devoted a “lifetime” of study to Hobbes,31 and held a bizarre intellectual kinship with him. Schmitt concludes the book crying out in exasperation “non jam frustra doces, Thomas Hobbes,” suggesting that Schmitt, at least, has correctly received Hobbes’ wisdom.32 What did Schmitt think Hobbes’ state theory had to offer, were it only properly understood? In particular, what did he think Hobbes had to say about quis judicabit?, modern mass democracy’s tendency to produce plurality of total movements, and the requirement of a relativizing status? a. Qualitative Totality: Positive Neutralization and Depoliticization

Chapter 3 discussed how Schmitt described the 20th century state as “quantitatively” total. It was total “out of volume” and lacked any common end or values. Chapter 3 discussed it is clear that this absent end was a shared neutralizing status, which would lead to “friendship” among its citizens. Recognizing at least implicitly the weakness of the “passively neutral state,” movements jockeyed for control over it, especially parliament wherein they might legislate their particular values and dominate the other movements. But Schmitt’s point is that a movement obtaining 51% of parliamentary seats may nevertheless be illegitimate if its core existential status was inimical

29 William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 30- 35. 30 Herfried Münkler, "Carl Schmitt und Thomas Hobbes," Neue Politische Literatur 29, no. 3 (1984). 31 Carl Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 3rd ed. (Berlin: Duncker & Humblot, 1963), 122. 32 Schmitt, The Leviathan in the State Theory of Hobbes, 86.

Page | 147 Leviathan Run Aground: Chapter 5 to the other 49%.33 For this reason, Schmitt argued states modeled on 19th century ideals could not survive under 20th century conditions.34

Schmitt writes a “genuine” state needed to be qualitatively total. But he was not entirely clear what qualitative totality meant. It is a negation of the problems associated with a quantitatively total state. So, in a qualitatively total state, state and society would be distinct.35 Society would be depoliticized. But the qualitatively total state would not merely be a state in which one total party or movement triumphed decisively in the struggle for control of the state.36 This would merely reproduce the legitimation deficit of the quantitative total state, only without the pluralism or compromises with existential reservations. Instead, the qualitatively total state is the continuity of “the political” with the state, loosely defined as an association contiguous with some territory with sovereign power, so that state institutions would serve as a defender and actualizer of its relativizing “political” status. This much can be inferred from how Schmitt introduces The Concept of the Political: it was fine to equate state and political before the quantitatively total state emerged, before state and society fused, when the state had a monopoly over the political and neutralized important non-state domains.37 The qualitatively total state would, then, be an “active” neutralizer; by maintaining and dynamically integrating its political status, the state would prevent other statuses or identities in society from politicizing and reducing the civil state to a natural state.38

With a clear determination of its political status, Schmitt believes the state would have a definite mandate of when it could legitimately intervene in society and when an intervention would be a violation of its authority. Following this logic, Scheuerman summarizes Schmitt’s argument, saying a state is qualitative when “the scope of state authority is of secondary importance to the effectiveness and coherence of state activity.”39 Clarity in politicization is an essential aspect of Schmitt’s theory of the qualitatively total state.40 It allows for a corresponding clarity in

33 Schmitt deploys this argument against Thoma’s criticism of him, arguing that – even if the NSDAP were to gain a majority, Thoma would argue there are limits to what they are permitted to do even if everything they did was consistent with the constitution, including Art. 76. Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004), 47-48. 34 Carl Schmitt, "Strong State and Sound Economy," in Carl Schmitt and Authoritarian Liberalism, ed. Renato Cristi (Cardiff: University of Wales Press, 1932), 217, 219; Carl Schmitt, "Weiterentwicklung des Totalen Staats in Deutschland (1933)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles (Berlin: Dunker & Humboldt, 1988), 186-187. 35 Carl Schmitt, Der Hüter der Verfassung, 4th ed. (Berlin: Dunker & Humblot GmbH, 1931), 78-80; Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: The University of Chicago Press, 1996), 22, 25. 36 Schmitt, Der Hüter der Verfassung, 83-84; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 27; Bendersky, Carl Schmitt: Theorist for the Reich, 280. 37 Schmitt, The Concept of the Political, 20-22. 38 Galli, La Genealogia della Politica, 364ff., 787ff. 39 Scheuerman, Carl Schmitt, 104. 40 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 172.

Page | 148 Leviathan Run Aground: Chapter 5 depoliticization.41 The state’s role would be limited to determining how to concretize its core political status. As the legitimate representative of that status, the state would have the auctoritas interpositio to determine the concrete meaning of that status – but nothing further.

Schmitt envisaged a corresponding withdrawal of the state from those domains of society that fall outside that relativizing status.42 Non-politicized spheres would, in effect, be liberalized.43 And the state’s political disinterest in those spheres would constitute it as a different sort of authority, categorically distinct from an auctoritas interpositio. Schmitt theorizes the state as a neutral authority in these cases. This authority would be valid for mediating relativized societal conflicts – like a judge in private law. Under the overarching political status, societal conflicts remain between friends; the state – embodying that relativizing status – mediates those conflicts authoritatively. As long as the state remains disinterested in depoliticized spheres, even those who “lose out” in its decisions will nonetheless accept them as legitimate.

For its role in society, Schmitt conceptually distinguishes “active” neutrality, arising from the qualitatively total state with a monopoly over the political, from the “passive” neutrality of the current quantitatively total state. Schmitt breaks active neutrality down into four types44:

1. Neutrality in the sense of objectivity and impartiality [Sachlichkeit] on the basis of a recognized norm. This is the neutrality of the judge insofar as he decides on the basis of a recognized law [Gesetzes] whose contents are determinable. The tie to the law allows the judge to have both objectivity and relative autonomy from other aspects of the will of the state (i.e. when it is expressed through means besides statutory regulation); this neutrality indeed comes to a decision, just not a political decision. 2. Neutrality on the basis of unegoistic-uninterested expertise [Sachkunde]. This is the neutrality of the expert evaluator and counselor, the expert observer, insofar as it is an not an interested representative or exponent of the pluralistic system, this neutrality is based on the authority of the mediator and conciliator (unless it falls under the third type). 3. Neutrality as an expression of the unity and totality that incorporates all opposed groups, and therefore the unity and totality that relativizes all oppositions within itself. This is the neutrality of the statal decision on domestic political oppositions, against the fragmentation and division of the state into political parties and particular interests, if the decision brings the interest of the state’s totality to bear.

41 Galli, La Genealogia della Politica, 653. 42 Schmitt, Legality and Legitimacy, 92; Schmitt, "Weiterentwicklung des Totalen Staats," 186-187; Schmitt, "Strong State and Sound Economy," 217. 43 Schmitt, Legality and Legitimacy, 90; Cristi, Carl Schmitt and Authoritarian Liberalism, 19, 31. 44 Schmitt, Der Hüter der Verfassung, 114-115; Reprinted as Carl Schmitt, "Übersicht Über Die Verschiedenen Bedeutungen und Funktionen Des Begriffes Der Innerpolitischen Neutralität Des Staates (1931)," in Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923-1939 (Berlin: Dunker & Humblot, 1988).

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4. Neutrality of the foreigner, standing completely outside an issue, who if necessary effects the decision and therefore unity from without as a third party. This is the objectivity of the protector opposed to its protectorate state and its domestic political oppositions, of the conqueror towards the various groups in a colony of the British towards Hindus and Muslims in India, of Pilate (quid est veritas?) toward the religious controversies of the Jews.

Close examination reveals Schmitt really only distinguishes two types of neutrality here: “neutrality” as relativizing societal oppositions (3) and neutrality as impartiality toward societal oppositions (1, 2, and 4). (3) is when the state operates as a political entity, relativizing and depoliticizing all other oppositions. The other three types are when the state operates as disinterested mediator of those neutralized social conflicts. Most importantly, this type of neutrality satisfies the juridical constraint of nemo judex in causa sua. Schmitt’s apparent obfuscation of “neutrality” is not accidental. By establishing the political and focusing the state’s interest strictly in that, he believes the state will appear in non-political spheres as a legitimate “agnostic” authority because it will be disinterested in the outcome.45

These two types of neutrality describe where the state’s disinterest toward the ends and values of its constituents begin and end. Schmitt argues the qualitatively total state lacks total disinterest as to which political parties and groups participate within it. It establishes the boundary between society and the political. Equal chance extends only to parties and movements whose ends cohere with the state’s political status.46 This state does not tolerate movements existentially opposed to its relativizing status because that political status defines the substantive rationality of the state itself. Schmitt thus denies that the state is a mere technical apparatus to be instrumentalized by whichever group happens to gain control over it at a given moment. b. Machina Machinarum: Protection and Obedience in Schmitt’s State Theory

Schmitt saw himself as the 20th century Hobbes. He believed they both confronted the same problem of the decay of state authority and the eruption of the state of nature due to ideologically driven internal domestic conflict. Unlike in the 17th century, however, these problems were no longer religious conflicts. They were driven by a different sort of “theology.” Nevertheless, Schmitt believed the near state of nature modern mass democracy was creating in Weimar had important parallels to problem Hobbes tackled. Thus, to best overcome 20th century cases of the breakdown of the state and the emergence of civil war, Schmitt looked back at how Hobbes dealt with the problem of factionalism and dogmatic conflict and to what extent his solutions could be updated to solve the crises of the 20th century state.

45 Cristi, Carl Schmitt and Authoritarian Liberalism, 189-190. 46 Cristi, Carl Schmitt and Authoritarian Liberalism, 180.

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Schmitt believes that, nearly four centuries after Hobbes first published Leviathan, we retain only half of his mythical “totality”: the ‘machine of machines’ and the ‘giant animal.’47 But the two more important facets of his Leviathan myth, giant man and mortal god, had entirely disappeared from state theory.48 The image of Leviathan as a giant animal applies only in international relations, where the state is conceived as an irrational elementary force.49 “Beyond the line,” across borders, one only encounters “werewolves.”50 Only within a state’s borders could “man” be civilized. Schmitt argued that domestically the state is conceived of only as a mechanical or technical instrument, by which he meant it merely executes whatever commands were fed into it. The state has been “positivized,” reduced to an instrument of positive law. And, pace thinkers like McCormick and Kelly who believe this was his ideal, Schmitt believed Hobbes’ myth “ran aground” when it became incapable of containing the state of nature, i.e. when it came to be understood only in technical, mechanical terms. Schmitt argues that Hobbes’ Leviathan ran aground because it had too been disenchanted.

Although he objects to the totalization of this image of the mechanical state, Schmitt argues it is a vital aspect of Hobbes’ state theory. Schmitt writes Hobbes’ state theory is tied to his

47 Schmitt’s interpretation of Hobbes evolved over the course of his life. His early reading of Hobbes is that of a positivist. But Schmitt’s reading is caught between the discussion of Hobbes as a theorist of absolute sovereignty, positive, and relativist (nominalist) [Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [Politische Theologie], trans. George Schwab (Chicago: University of Chicago Press, 2005), 33-34, 47, 52.] and a theorist who designed a mortal god who instituted a transcendental order and fostered rationality in its constituents. [Schmitt, Political Theology, 48; cf. Carl Schmitt, "Thomas Hobbes/Baruch Spinoza (1919)," in Schmittiana: Beiträge zu Leben und Werk Carl Schmitts, ed. Piet Tomissen (Berlin: Duncker & Humblot, 2001), 15- 16.] Schmitt’s understanding of Hobbes is still marked by positivism and the coincidence of power and legitimacy in the early 30s, but Schmitt stumbles over tensions in his particular understanding of decisionism and its implication of arbitrary decision-making. [Schmitt, The Concept of the Political, 65; Carl Schmitt, On the Three Types of Juristic Thought, trans. Joseph W. Bendersky (Westport: Praeger Publishers, 2004), 61, 74.] By 1938, Schmitt has begun to integrate his interpretation of Hobbes’ as a theorist of substance and legitimacy into his earlier reading [Schmitt, The Leviathan in the State Theory of Hobbes, 82ff.]. By 1963, Schmitt depicts Hobbes as he saw himself: a theorist of (relativized) natural law, someone who believes that some condition of legitimacy must ground any political order [Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 121- 123.]. Despite his evolution, Schmitt’s 1963 reading of Hobbes ends up looking little different from his 1921 reading [Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle, trans. Michael Hoelzl and Graham Ward (London: Polity, 2013), 16-19, 79ff. 113.] on the core question of how Hobbes theorized scientific or “relativized” natural law [wissenchaftlichen Naturrecht], which was concerned not with the content of the decision but the fact of having one at all. Hobbes was not a positivist like Kelsen was. What remained consistent throughout Schmitt’s life was Hobbes’ philosophical anthropology: because man is “evil,” which means humans succumb to the force of drives, impulses, and passions instead of being guided by reason, we stand in need of a rational force to compel us to reason. In moments of clarity, so speak, this “spark of reason” flashes and we recognize the necessity of being subjected to the dictates of reason. But this spark of reason is insufficient in itself to overcome our passions and we cannot organize ourselves on our own. The state is necessary because it overcomes individual interpretation of good and evil – the root of all evil – providing a fixed reference point in an otherwise amorphous and flowing world. 48 Schmitt, The Leviathan in the State Theory of Hobbes, 19, 62. 49 Schmitt, The Leviathan in the State Theory of Hobbes, 49-50. 50 Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G.L. Ulmen (New York: Telos Press Publishing, 2003), 95-97.

Page | 151 Leviathan Run Aground: Chapter 5 appropriation of Cartesian metaphysics and anthropology: Hobbes conceived of the state’s institutions as a giant body and its “sovereign representative person” as its soul, which (invoking Campanella’s Platonic metaphor), intent on the body, “pilots” the state.51 As a mechanical entity, the state’s meaning resides in its technical, material perfection. This means the state neither offers nor defends any substantive right and becomes nothing more than an instrument in the hands of its pilot.52 This mechanical image was, according to Schmitt, indeed intended to depict the state as a thoughtless enforcement mechanism, which merely executed its legal commands. It conveyed formalized law’s qualities of predictability and calculability as well as the neutrality of the state itself. Aside from blindly executing commands, the essence of the mechanical state is the maxim protego ergo obligo. Schmitt calls this “I protect therefore I oblige” the cogito ergo sum of the state.53 The most elementary basis for legitimate any state action is that, at minimum, the state guarantees its constituents material security in exchange for their obedience.54 Otherwise, its constituents would have no reason to contract into the state at all. Physical security is, then, the fundamental prerequisite of the state; without guaranteeing this most basic need, there could be “no form of order, no reasonable legitimacy or legality.”55

By including the image of the state as a giant machine in his Leviathan myth, Schmitt argues, Hobbes provides a necessary condition for a legitimate state. But, Schmitt argues, mechanization was a necessary but insufficient condition. Total mechanization was never Hobbes’ intent.56 It came about because of an evolution in Ideas Hobbes did not foresee: the pervasiveness of the “mechanical” depiction of the world; the disenchantment of the world through our increasingly rationalized perception of it. Hobbes understood the state in far richer terms, Schmitt argued. His world was neither disenchanted nor rationalized. Schmitt believes that, precisely because of this process of disenchantment, because the “huge man” could not “prevail” in history, “the leviathan becomes nothing other than a huge machine, a gigantic mechanism in the service of ensuring the physical protection of those governed.”57 By the early 20th century, the state had shifted to mere formal “legality.” For this reason, Schmitt draws on Cartesian anthropology again and describes the totally mechanized state as soulless.

When the state becomes merely external, merely visible, and merely material, Schmitt argues its legitimacy erodes. This impoverished symbol “leaves nothing to remind people of a “huge man” and a god created by human reason. The leviathan assumes an inhuman or a subhuman

51 Schmitt, "Thomas Hobbes/Baruch Spinoza (1919)," 11, 16-17; Schmitt, The Leviathan in the State Theory of Hobbes, 37, 50; cf. Schmitt, Dictatorship, 88, 270. 52 Schmitt, The Leviathan in the State Theory of Hobbes, 42; Cf. Galli, La Genealogia della Politica, 375ff. 53 Schmitt, The Concept of the Political, 52. 54 Schmitt, The Leviathan in the State Theory of Hobbes, 45. 55 Schmitt, The Concept of the Political, 52. 56 Schmitt, The Leviathan in the State Theory of Hobbes, 41-42; Schmitt, "Thomas Hobbes/Baruch Spinoza (1919)," 10; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 122. It may worth emphasizing that, for Schmitt, scientific natural law is not the same thing as positivism. 57 Schmitt, The Leviathan in the State Theory of Hobbes, 34-35 (my emphasis).

Page | 152 Leviathan Run Aground: Chapter 5 appearance…”58 And without a single authoritative “soul,” the mechanical state was “devoured” by a plurality of indirect powers.59 In fact, against what McCormick and Kelly argue, Schmitt underscores that a mere mechanism is incapable of any meaningful totality – that is, in the sense of the qualitatively total state – precisely because the state’s mechanical institutions must have some connection to philosophical legitimacy.60 The 18th century, and not Hobbes at all, destroyed Leviathan “as magnus homo” by conceiving of it in increasingly rationalized terms.61 This “philosophical connection” is the state’s transcendental tie to some metaphysical veritas. The loss of the state’s “personality” meant a loss of its representative qualities – which are crucial for the state’s role as the bridge spanning the chasm between facts and norms. Put in different terms, Schmitt argues that the disenchanted Rechtsstaat lost its orientation to relative truth and right.62 It became identical with positive law.63

And without a link to some political status and value, the state became a substantively irrational, instrumentally rationalized instrument that served whatever and whoever happened to pilot it at a given moment.64 The divorce of substance and procedure meant its pilot could “legitimately” do whatever he or she desired with the state – there was no criterion by which to distinguish legitimate from tyrannical rule. This reduction is how parliament became an arena for indirect powers to rule arbitrarily and apocryphally. Schmitt theorized that, in the absence of the direct power of the state, indirect powers appear that all compete for the hearts and minds of constituents without any regard for the worldly consequences of their actions – they are ethically irresponsible for this world because they are unconcerned with basic needs like security but instead only focus on their ideals.

Schmitt believes the mechanical image of Hobbes’ Leviathan was intended to provide one important facet of a very complicated allegory of political legitimacy (Leviathan was a complexio oppositorium).65 Its reduction to just its mechanical facet undermined Leviathan altogether. The politically neutralizing power of the state was turned on itself.66 The disenchantment and rationalization of Hobbes’ Leviathan, the loss of the myth of the state as giant man and mortal god, Schmitt argues, was decisive. The state’s loss of the monopoly of the political led to the politicization of society and produced its legitimation crisis. As the mechanical state is passively neutral or quantitatively total, the lost images of the mortal god and the giant man corresponded to the ideals of active neutrality and the qualitatively total state. Thus, in order to restore the state today, Schmitt sought to restore those lost images.

58 Schmitt, The Leviathan in the State Theory of Hobbes, 62-63. 59 Schmitt, The Leviathan in the State Theory of Hobbes, 73. 60 Schmitt, The Leviathan in the State Theory of Hobbes, 100 cf. in particular Schmitt’s fn. 114. 61 Schmitt, The Leviathan in the State Theory of Hobbes, 65; cf. Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge: The MIT Press, 1988), 34-35 (fn 38). 62 Schmitt, The Leviathan in the State Theory of Hobbes, 68-73. 63 Schmitt, The Leviathan in the State Theory of Hobbes, 45. 64 Schmitt, The Leviathan in the State Theory of Hobbes, 73-74. 65 Galli, La Genealogia della Politica, 790. 66 Galli, La Genealogia della Politica, 791.

Page | 153 Leviathan Run Aground: Chapter 5 c. Human “Evil,” Imperium Rationis, and The Mythical Totality of Leviathan

As discussed in Chapter 2, Schmitt ultimately believes all political theologies can be reduced to a single dogma of anthropology faith: whether human nature is naturally good or evil.67 If human nature is fundamentally good, we can and will order ourselves naturally; the state is not only unnecessary but unjust, as it interferes with that natural goodness and interferes with peace. He argues this dogma is the basis for worldviews that are ultimately anarchistic. If, on the other hand, human nature is somehow fundamentally evil, we cannot and will not order ourselves naturally; the state is not only just but necessary, as some authority – no matter how minimal – is necessary. Schmitt says this dogma is the basis for worldviews that are ultimately authoritarian. He argues this latter dogma is the basis of all “genuine” political theory. Because political theory is a question of legitimate orders and institutions in human life, it is a question of how much and which form of authority and rule is legitimate to restrain human evil, not whether there should be authority at all.68

Schmitt’s point is to force his readers to decide on a simple underlying political question: is at least some government and authority, no matter how minimal, necessary for justice, however justice is conceived? Put differently, is there any legitimate authority beyond an individual’s immediate will? Schmitt seems to believe there are very few who would answer “no” to these questions, whom he argues are true anarchists.69 And he is not worried about them. He aims to show that, for those who do admit some authority is necessary, the state presupposes some underlying political status that draws a hard limit to total individual freedom and justifies its authority. Without that status and authority, there is a state of nature. I suspect that, ultimately, Schmitt’s goal was to convince “liberals” or “democrats” that even a liberal democratic state such as Weimar presupposed some underlying political status, no matter how minimal.70 In other words, he wants to force liberals and democrats to admit there are cases where the state had legitimate authority to constrain both individual right and popular sovereignty, especially cases were those very values were in jeopardy. An underlying aim of political theology, then, is to distinguish liberals and democrats from anarchists, metaphysically and politically. That is, Schmitt argues liberals and democrats ultimately hold “political” attitudes and recognize some degree of human “evil” and, in admitting this, they recognize the necessity of some minimal degree of state. In doing so, he believed he would have made the case for the legitimacy of the (re)union of the political and the state.

67 Schmitt, The Concept of the Political, 58; Schmitt, Political Theology, 55-57, 66; Carl Schmitt, Political Romanticism, trans. Guy Oakes (New Brunswick: Transaction Publishers, 2011), 3ff. 68 Schmitt, The Concept of the Political, 61. 69 Schmitt also argues that, since we live concretely in a world with states and laws already, the anarchist position is de facto politicized – it seeks the power and authority to impose its order. “Anarchists” thus abandon their philosophical anthropology once they act to realize their political ideal. Schmitt, The Concept of the Political, 64. 70 Strauss’ seems to argue this point: liberalism, in its emphasis on basic individual freedoms, “forgets” there is a limit to freedom, no matter how liberal one is. Leo Strauss, "Notes on the Concept of the Political," in The Concept of the Political (Chicago: The University of Chicago Press, 1996), 92; cf. Schmitt, The Concept of the Political, 61.

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Kelly rightly argues Schmitt believes anthropological evil makes man “dangerous” and suggests that an individualized understanding of the political is the source of danger.71 But Kelly does not pursue this insight much further and we are left without a clear sense of what exactly is evil about human nature for Hobbes and Schmitt or what links evil and this dangerous individuated understanding of the political.

Schmitt writes man’s unchecked animality, drives, and passions give rise to evil and that this is the fundamental law of political life.72 Strauss comments that good and evil are not moral or ethical categories for Schmitt. Neither is it a religious concept like original sin.73 To the contrary, it is naturae potentia, “the power of nature,” or the human tendency to be most responsive to drives, irrationality, and instincts.74 Why Schmitt believes passions, drives, and irrationality produce “evil” becomes clearer only in his 1963 Remarks to precisely this section of The Concept of the Political. There, Schmitt gives us just enough of a “hint” to flush out what he meant. He writes,

Good or evil, in the sense of normal or fallen, is contextual for Hobbes: the state of (or better, condition of) nature is an abnormal situation. This abnormal situation is normalized first in the state, i.e. first attained through political unity. The state is a kingdom of reason [Reich der Vernunft] (this formula originates in Hobbes and is not first found in Hegel), an imperium rationis (De Cive 10 §1), which transforms civil war into the peaceful coexistence of citizens. The abnormal is the “fallen situation,” civil war. In civil war, no one can conduct themselves normally.75

Anthropological pessimism presupposes the state is necessary to check drives and passions. The difference between good and evil in Schmitt’s binary anthropology would then be the classical philosophical contrast of reason and the passions: anarchism argues reason naturally triumphs, whereas “genuine” political theories are at least skeptical about reason’s chances.

But Schmitt does not think the precise danger of human passion lies in a proclivity to violence or jealousy. While these are important problems, the great danger of the state of nature comes from a very different passion. Schmitt writes “[Hobbes] recognized correctly that the conviction of each side that it possesses the truth, the good, and the just bring about the worst enmities, finally the war of all against all.”76 Schmitt elaborates that “the worst confusion arises when concepts such as justice and freedom are used to legitimize one’s own political ambitions and to disqualify or demoralize the enemy,”77 a claim he reiterates in his discussion of the mechanical state.78

71 Kelly, The State of the Political, 221. 72 Schmitt, The Concept of the Political, 59. 73 Strauss, "Notes on the Concept of the Political," 95. 74 Strauss, "Notes on the Concept of the Political," 98-99. 75 Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 121; cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 99. 76 Schmitt, The Concept of the Political, 65. Koselleck describes Hobbes similarly. Koselleck, Critique and Crisis, 25ff. 77 Schmitt, The Concept of the Political, 66. 78 Schmitt, The Leviathan in the State Theory of Hobbes, 45.

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Combined with what he says about passion and political theology, it is clear that Schmitt believes Hobbes’ problem is individuals naturally perceive the world differently and decide on different forms of what is right when left to themselves. This is the problem of perspectivism, due to the hiatus irrationalis. We are motivated by injustice to rectify what is wrong and irreconcilable views result in the worst enmity. Thus, the fundamental cause of the state of nature is human passion for justice, combined with individuated “conscience-based” valuations, leading to their attempts to realize that justice in the world.

In an intense passage from 1959, Schmitt writes,

The purely subjective freedom of [individual] value-determination [Wertsetzung] leads to an eternal struggle of values and Weltanschauungen, a war of all with all, an eternal bellum omnium contra omnes, to which the old bellum omnium contra omnes and even the murderous state of nature of the political philosophy of Thomas Hobbes is truly idyllic in comparison. The old gods rise from their graves and fight their old battles once again, but disenchanted and – it should not be added, with new means in the struggle which are no longer mere weapons but terrifying means of annihilation and extermination, atrocious products of value-free science and the industrialism and technology serving it. What is for one the devil is for the other god. “And so it goes throughout all the orders of life…and indeed for all time”…It is always values that precipitate the conflict and sustain enmity. That the old gods have become disenchanted and become merely accepted values makes the conflict spectral and the antagonists hopelessly polemical. That is the nightmare Max Weber’s depiction presents to us.79

Schmitt believes a totally neutralized state is incapable of holding back the state of nature. By becoming merely a protector of material life, the state lost its ability to limit or neutralize individual value-determinations. And with this loss, the state has no basis to reign in human passion and create a space for reason to rule. Schmitt’s critique of the mechanical state is that, by merely aiming to protect its constituents, it will be delegitimated as it is instrumentalized first by one Weltanschauung and then another, each movement coming to see the state as a merely a tool for domination. Such a state, Schmitt argues, has lost sight of Hobbes’ original purpose; it has lost the mythical qualitative totality of Hobbes’ Leviathan.

Anthropological evil leads Schmitt to conclude the state needs to simultaneously satisfy both the demand for protection from insecurity and the representation of a decision on the political status of the community by which constituents can identify their friends and enemies. By placing the

79 Carl Schmitt, Die Tyrannei der Werte (Berlin: Dunker & Humblot, 2011), 39-40. This can be compared to Schmitt’s remarks in Political Theology (Schmitt’s memorial text in honor of Weber), which also link the problem of subjective valuation to the bellum omnium contra omnes: “Everyone agrees that whenever antagonisms [Gegensätze] appear within a state, every party of course only wants the general good [jede Partei natürlich nur das allgemeine Beste will] – indeed therein resides the bellum omnium contra omnes.” Schmitt, Political Theology, 9 (translation altered). Schmitt’s remark is tongue in cheek here: although every party “only wants the general good” these assertions are enough to rupture the state. Subjective valuation is a main cause of political problems; political theology is the problem of how antagonistic conceptions of right compete to be realized concretely.

Page | 156 Leviathan Run Aground: Chapter 5 axiom auctoritas non veritas facet legim equidistant from the poles of “transcendence” (above) and “needs” (below) in his Hobbes-Crystal, Schmitt strives to highlight how legitimate authority mediates and satisfies these two demands of human nature. In other words, reason dictates, for there to be any peace, there must be convergence on core existential commitments of what is right, which would serve as a basis for cooperation and allow other disagreements to be relativized. The failure to fulfill either pole of the Crystal is anathema to stability. In orienting his Hobbes-Crystal by these two poles, Schmitt seems to have a rather Hegelian reading of Hobbes. He suggests Hobbes beat Hegel to the punch on core issues of state theory.

Schmitt argues that when Hobbes described Leviathan in terms of Descartes’ anthropology, the two attributes of body and soul mapped onto it.80 By spelling out the “mythical totality” of Hobbes’ Leviathan, he hoped to restore this relationship between body and soul, “below” and “above.” The mechanical image of Leviathan, discussed above, the only facet of Leviathan left today constituted this below; the body dominated by physical causality and material considerations reflects the scientistic and technical Weltanschauung of the 20th century. But it gives no answer to the most important question, “which of the various orders and values ought the state to realize?” The body cannot survive without a soul.

Unfortunately, Schmitt does not say much about Leviathan’s soul. Schmitt says that the “gist” of Hobbes’ state theory is that as a totality it is an ensouled mechanism, an intellect intent on the machine.81 This combination, Schmitt says, is Hobbes’ artificial person: the giant man [magnus homo] constructed by human reason.82 Yet, like a natural person, a Leviathan judges and interprets reality in light of its transcendent Idea and attempts to follow its normative prescriptions. Schmitt consistently understands the image of the huge man as the integration of the mechanical body and transcendental “soul.” It is a moral, public person.83

Yet, Hobbes’ Leviathan is also a mortal god. But Schmitt does not clearly define what it means for Leviathan to be a mortal god. Schmitt sometimes equates the images of man and god.84 Other times, he attempts to pry the two apart. He suggests that the soul animating the mechanism is the sovereign-representative person.85 That this “one sovereign person [is] brought about by representation” can only be understood in the sense of Hobbes’ artificial representation.86 This sovereign-representative person holds absolute power, in a politicized Calvinistic theological conception of God, to realize his order on earth.87 The sovereign-representative person holds all

80 Schmitt, The Leviathan in the State Theory of Hobbes, 32; cf. Schmitt, "Thomas Hobbes/Baruch Spinoza (1919)," 18. 81 Schmitt, The Leviathan in the State Theory of Hobbes, 32, 34, 37. 82 Schmitt, The Leviathan in the State Theory of Hobbes, 63; Schmitt, The Nomos of the Earth, 143. 83 Schmitt, The Nomos of the Earth, 141-142,145-146. 84 Schmitt, The Leviathan in the State Theory of Hobbes, 31-32, 63, 65. 85 Schmitt, The Leviathan in the State Theory of Hobbes, 34. 86 Schmitt, The Leviathan in the State Theory of Hobbes, 32, 93. Cf. The discussion of Hobbes’ artificial representation in the last chapter 87 Schmitt, The Leviathan in the State Theory of Hobbes, 58, cf. 32, 38.

Page | 157 Leviathan Run Aground: Chapter 5 authority to interpret, standing at the center axis of Schmitt’s Hobbes-Crystal.88 From this position, it animates the mechanical body.89 Besides its absolute power and authority, it is godlike because it has no material existence. And it is godlike because it embodies some transcendental philosophical conception.90 It is mortal because the propensity to make subjective valuations and act upon them, to act upon one’s conscience, is inherent to human nature.91 The state of nature is never overcome, it is just held back.

Schmitt’s interpretation of the images of Hobbes’ Leviathan might look like the following92:

Schmitt argues that, for Hobbes, the myth of the commonwealth as huge man begins with Plato93 and that Hobbes uses Plato’s magnus homo and Job’s magnus Leviathan interchangeably.94 Plato too aimed at establishing the rule of reason. Of course, Plato, unlike Hobbes and unlike Schmitt, believed that this meant a definite Idea or Form of “the Good.” Schmitt takes a substantial and important departure from this conception in his relativized idea of the political – following what he calls Hobbes’ “scientific natural law.” Nonetheless, once the empty space of the political is filled, Schmitt’s construction of the commonwealth begins to seem like Plato’s.

88 Schmitt, The Leviathan in the State Theory of Hobbes, 55. 89 Schmitt, The Leviathan in the State Theory of Hobbes, 44. 90 Schmitt, The Leviathan in the State Theory of Hobbes, 100, cf. 183 and Schmitt’s later discussions of Hobbes’ Christianity and Christianity as a form of transcendence. 91 Schmitt, The Leviathan in the State Theory of Hobbes, 45, 74; Schmitt, The Concept of the Political, 65; Schmitt, Der Begriff des Politischen: Text von 1932 mit einem Vorwort und Drei Corollarien, 121-123; Cf. Koselleck, Critique and Crisis, 32. 92 This diagram depicts Schmitt’s interpretation of the image of the mortal god as strictly “soul”; otherwise mortal god should occupy the same position as μάκρος ἄνθρωπος. When depicted in this way, Schmitt’s state theory from The Leviathan in the State Theory of Hobbes ends up looking like a simplified version of his Hobbes-Crystal. 93 Schmitt, The Leviathan in the State Theory of Hobbes, 5. 94 Schmitt, The Leviathan in the State Theory of Hobbes, 19.

Page | 158 Leviathan Run Aground: Chapter 5 d. Potestas Directas: Reason and Transcendence

The Leviathan in the State Theory of Hobbes was not the first time, however, that Schmitt discussed the state in the context of Plato and the actualization of the rule of reason. Schmitt makes similar claims, with no reference to Hobbes, in his Der Wert des Staates. Like with his claims about how Hobbes’ imperium rationis overcomes individuation in the state of nature, Schmitt argues that individual egoism is what upsets peace and justice in the world.95 Citing Kant, Fichte, and Plato, Schmitt argues it is a mistake to believe that freedom consists in arbitrary willing. Instead, it consists in the exercise of reason over passion. Because individual egoism undermines what is reasonable, the state, through the exercise of power, must serve to harmonize individuals’ ends so that those individuals can become the rational beings they actually are.96 Like in his later discussions of Hobbes, Schmitt argues that passion undermines peace, the state is necessary to rein passion in and realize political harmony.

Also similarly to his arguments about the disenchantment of Leviathan, Schmitt warns of the consequences of arbitrary individual wills for order and peace, so too does he deny the state aims at mere procedural Gesetz.97 It is not merely an instrument of positive law here either. Schmitt argues the state’s role is to realize Recht in the world. Recht itself is an abstract Idea and cannot directly affect the world. He goes on to write,

[the state] is derived from Recht and its essence seen in a particular relation to Recht…From the opposition of the norm and the real empirical world follows the position of the state as a bridge point from one world to another. In it, as a construction point, Recht as pure concept [Gedanke] turns into right as material phenomenon. The state is thus the legal entity [Rechtsgebilde], whose meaning consists solely in the task of realizing Recht, bringing about a condition [Zustand] in the external world, which as far as possible corresponds to the standards that can be deduced from juridical concepts [Rechtsgedanken] for the behavior of individuals and the realization [Einrichtung] of the external world.98

The state does what Recht cannot do on its own: it makes Recht efficacious.99 The state is the bridge between Recht and facts, which overcomes the problem of individual passions and egoism in order to overcome the state of nature.100 In other words, given this hiatus, the state’s role is to restrain individual passions so there can be public peace and order. Schmitt does not seem to care what the content of Recht is. He just makes the second-order claim that there must be some order.

95 Carl Schmitt, Der Wert des Staates und Die Bedeutung Des Einzelnen [The Value of the State and the Meaning of the Individual] (Berlin: Dunker & Humboldt GmbH, 2004), 88-89, 93, 105. 96 Schmitt, Der Wert des Staates, 94, 106. 97 Schmitt, Der Wert des Staates, 54. 98 Schmitt, Der Wert des Staates, 56. 99 Schmitt, Der Wert des Staates, 59, 62. 100 Schmitt, Der Wert des Staates, 42, 50.

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And Schmitt continuously makes this argument that the state is the sole bridge between facts and norms, from Der Wert des Staates (1914), to “Absolutismus” (1926) to The Concept of the Political (1928), to On the Three Types of Juristic Thought (1934) and The Leviathan in the State Theory of Hobbes (1938), to the Hinweise to The Concept of the Political (1963) to Political Theology II (1970). In all these texts, Schmitt draws limits on the state’s arbitrary exercise of power, particularly power authorized by democratic legitimation.

Renato Cristi also noticed Schmitt’s interest in developing the link between the state and its normative roots. He writes,

There was a metaphysical core to Schmitt’s thought whose vestiges were to be found in all his works. A metaphysical community linked the distinction between the juridical (Recht) and its realization in Der Wert des Staates, the distinction between the substance and the exercise of sovereignty in Die Diktatur, the notions of absolute constitution and constituent power in the Verfassungslehre, the concept of the political in The Concept of the Political, the concept of movement in Staat, Bewegung und Volk, and the meta-legal conception of a concrete order formation in Über die drei Arten des Rechtswissenschaftlichen Denkens.101

The metaphysical core Cristi refers to is the idea that meta-juridical principles serve as the basis for political and legal legitimacy. They buttress state institutions and serve to distinguish legitimate rule from tyranny.102 The state’s duty is to enforce the law whenever possible but simultaneously to legislate within those bounds of substantive legitimacy.103 When the state does so, it creates public order and security – but also a political status.104

To successfully overcome the state of nature, Schmitt believes the state must also provide for the material interests of its constituents but it must also Represent a basic political status with which they can all Identify, so disagreements between them occur as social disagreements remain among “friends.” A state that successfully satisfies the dual demands of material security and rational order becomes a direct power,105 and thus a legitimate authority.

101 Cristi, Carl Schmitt and Authoritarian Liberalism, 18-19, cf. 144-145. 102 Cristi, Carl Schmitt and Authoritarian Liberalism, 159. 103 Cristi, Carl Schmitt and Authoritarian Liberalism, 46-47, 71, 154ff. 104 Schmitt, Der Hüter der Verfassung, 75-76. 105 I suspect Schmitt’s understanding Hobbes’ potestas directa in terms of Weber’s Ethics of Responsibility. The potestates indirectae are like Weber’s chiliastic prophets and adherents of the Ethics of Absolute Ends: irresponsible to the world and interested only in realizing their utopian ideals (Schmitt, Die Tyrannei der Werte, 47- 48.). They are certainly oriented by an Idea (something Weber claims is necessary also for an adherent of the Ethics of Responsibility), but lack any ability to provision something like security or material survival. Or even an awareness that this is a requisite of politics. I suspect that this also underlies Schmitt’s critique of Political Romanticism – in that romantics are not committed to anything at all except themselves and their “play.”

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2. Constitution as a Political and Existential Phenomenon

Although Schmitt does not specify any definite content of the relativizing status, he does argue law must be grounded in some substantive idea of justice. His Constitutional Theory argues the constitution codifies the state’s “soul,” and he formally defines what the constitution is, even if he offers no specific defense for a particular constitutional type. Cristoph Schönberger summarizes his definition: “Constitution [is] a people’s fundamental political decision [politische Grundentscheidung] about the nature of its political existence.”106 This definition of the constitution sounds nearly identical to how Schmitt defines the political.

In the first four chapters of his Constitutional Theory, Schmitt outlines a typology of the concept “constitution” divided into four categories: Absolute, Relative, Positive, and Ideal.107 This section focuses on the Absolute and Relative as they are the conceptual antitheses in Schmitt’s typology; Positive and Ideal, although they play an important conceptual role, are ultimately derivative of the Absolute Constitution and opposed to the Relative Constitution.108 a. Constitution as Status: The Absolute Constitution (Constitutional Theory §1)

The first chapter of Schmitt’s Constitutional Theory, “§1. Absolute Concept of the Constitution,” is the most important in the book, if not the most important chapter Schmitt wrote. It is one of his most explicit descriptions about the core status of a political community. He argues a constitution is “Absolute” when “it expresses a (real or reflective) whole.”109 Discussing Schmitt’s theory, Forsthoff writes “naturally, the constitution is primarily a political and existential phenomenon… Only during normal times does the application of the constitution reduce to the application of constitutional laws.”110 Its conceptual antithesis (discussed below), the “Relative” Constitution, takes an individuated series of statutes as an aggregated whole and is

106 Christoph Schönberger, "Werte als Gefahr für das Recht? Carl Schmitt und die Karlsruher Republik," in Die Tyrannei der Werte, ed. Gerd Giesler (Berlin: Duncker & Humblot GmbH, 2011), 79-80. 107 When using these terms in the specific sense of Schmitt’s typology, I will capitalize them to indicate this. 108 Although Schmitt does not discuss this in his Constitutional Theory, it seems he had in mind Hauriou’s concept of “supra-legality” [superlégalité constitutionnelle] for his concept of Absolute Constitution. He suggests this in Schmitt, Legality and Legitimacy, 57-58. and later in his life in Carl Schmitt, "The Legal World Revolution (1978)," Telos 72(1987): 75-76. I return to this in Chapter 6. The relationship of Schmitt’s nomos to his broader political and statal theory would be far too broad for me to take up here. Yet Schmitt seems to have understood nomos in similar terms to his Absolute Constitution (not to mention to “concrete order” and “super-legality”). For example, he writes “In its original sense, however, nomos is precisely the full immediacy of a legal power not mediated by laws; it is a constitutive historical event – an act of legitimacy, whereby the legality of a mere law is made meaningful.” Schmitt, The Nomos of the Earth, 73. He also defines it as the source by which “all subsequent law and everything promulgated and enacted thereafter as decrees and commands are nourished” (Schmitt, The Nomos of the Earth, 48.) and the constitution of “a spatially concrete unity” (Schmitt, The Nomos of the Earth, 70.). 109 Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press, 2008), 59. 110 Reinhard Mußgnug, Dorothee Mußgnug, and Angela Reinthal, eds., Briefwechsel: Ernst Forsthoff - Carl Schmitt (Berlin: Akademie Verlag, 2007), 194-195; Cf. Frank Hertweck, Dimitrios Kisoudis, and Gerd Giesler, eds., "Solange Das Imperium Da Ist": Carl Schmitt im Gespräch mit Klaus Figge und Dieter Groh 1971 (Berlin: Duncker & Humblot, 2010), 130.

Page | 161 Leviathan Run Aground: Chapter 5 antithetical because that whole is merely the sum of its parts. The “Absolute” Constitution is greater than these component parts.

Schmitt divides Absolute Constitution into two broad types (I or II), both subdivided again into three subtypes (1, 2, or 3), producing six distinct, yet related concepts of Absolute Constitution:

Absolute Constitution overlaps substantially with Schmitt’s concept of the political. Both the political and the Absolute Constitution define the status or “collective condition” of the political community. They define its core existential interests, its most fundamental basis for unity, the reason why a group of distinct individuals would commune politically at all, and, citing Aristotle, its τέλος (in I.1 and II.1). The difference between I.1 and II.1 is subtle. Schmitt argues in I.1 that “state is constitution,” meaning it is a concrete or factual condition (that the political community does correspond to it).111 In II.1, he argues “constitution is the state,” by which he means it is a normative ideal (i.e. that the political community should approximate it).112

The Absolute Constitution is the political soul and existential core of the community (I.1, II.1, II.2).113 As the existential core, both the political and the Absolute Constitution define the values without which the political community would cease to exist and therefore that must be preserved and defended at all costs.114 It provides the meta-juridical principles – corresponding to the idea of transcendence and veritas in Schmitt’s Hobbes-Crystal – which serve as the basis for determining the derivative values and laws of the community (II.1, II.2).115 When it actually

111 Schmitt, Constitutional Theory, 59-60. 112 Schmitt, Constitutional Theory, 62-63. 113 Schmitt, Constitutional Theory, 60, 63, 64. 114 Schmitt, Constitutional Theory, 60, 62. 115 Schmitt, Constitutional Theory, 62-65.

Page | 162 Leviathan Run Aground: Chapter 5 corresponds to those principles, that regime may accurately be described as one in which reason is sovereign and thus free of domination.116

He also defines the Absolute Constitution as a dynamic institution that integrates concrete individuals into the community, so that they come to see its will as their own (I.3).117 Finally, both the Absolute Constitution and the political are the product of existential willing – a decision by a “will” (even the will of an abstraction, like the German people) for a specific type and form of existence (II.2).118 Schmitt writes this will is capable of clarifying the penumbral instances of jurisprudence by deciding legitimacy according to the legal system’s meta-juridical values.119

While the overlap is substantial, there are also important differences between the political and the Absolute Constitution. The political has no necessary relationship to the state. Politicization can occur in substate political movements. Absolute Constitution, according to Schmitt, is precisely the opposite: it is the idea of state form and political order (I.2).120 It codifies the state’s ratio status. It also defines the state’s form: e.g. as monarchy, aristocracy, democracy, or status mixtus, which describes how “normal” politics occurs.121 Schmitt’s concern about state form is primarily about whether or not a state form is capable of governing in accord with the common good. Regarding democracy, he even cites Aristotle’s distinction between politea and democracy – only when the citizens express the volonté générale is the state a politea.122 In addition to articulating the state form, in II.3 Schmitt also defines the Absolute Constitution as a written positive legal codification of the political status, in the sense of I.1, II.1, and II.2.123 In its normative sense, however, this legal codification is linked to and informed by that meta-juridical status and cannot be understood apart from it. Schmitt writes this relationship is expressed by the non-legal aspects of the constitution, such as the preamble.124

It is worth dwelling on the relationship between the political and Absolute Constitution with regard to the constitution as a Hegelian (or Heraclitian125) process of becoming – which Schmitt argues must include a process by which constituents come to see themselves as members of an abstract community and see its decisions as in their interests too. Schmitt is emphasizing the importance of civic education for “constituting” citizens. In raising this point, Schmitt suggests how the dilemma of representation and identity, discussed in the last chapter, can be navigated. His extremely conservative and authoritarian remarks about the effects of the media (especially

116 Schmitt, Constitutional Theory, 63. 117 Schmitt, Constitutional Theory, 61-62. 118 Schmitt, Constitutional Theory, 65. 119 Schmitt, Constitutional Theory, 65. 120 Schmitt, Constitutional Theory, 60-61. 121 Schmitt, Constitutional Theory, 61. 122 Schmitt, Constitutional Theory, 248; cf. 275ff, 302-303. 123 Schmitt, Constitutional Theory, 65. 124 Schmitt, Constitutional Theory, 80-82, 111. 125 Schmitt latched onto several of Heraclitus’ extant aphorisms (“one cannot step into the same river twice” and “war is father of all, king of all”) and, according to Gerd Giesler, identified most with his thought.

Page | 163 Leviathan Run Aground: Chapter 5 film and radio) on the masses from Chapter 3 make more sense when taken in conjunction with this idea of constitution as dynamically incorporating and an institution of “becoming.” He believes that constituents need to be actively incorporated into the state through political education to understand why the state is legitimate126 – how the actions of the rulers are legitimate because a ruler’s political identity is the same as that of the ruled.

Despite some clear differences between the Absolute Constitution and the political, the similarities are remarkable. Above all else, the definition of both the political and Absolute Constitution (especially definition I.1) as “decisive status” – in the sense of determining the existential core of the political community – indicates the center of Schmitt’s focus. The constitution, in its robust Absolute sense, describes the political status that forms the community. In this way, the constitution is both “the political” as well as a blueprint for its institutionalization by the state. b. Constitution as Decision: The Positive Constitution (Constitutional Theory §3)

Although it is conceptually distinct, the concept of Positive Constitution has strong affinities with (and, in Schmitt’s terms, “adheres to”) the concept of Absolute Constitution.127 Schmitt also distinguishes the Positive Constitution from constitutional law, with an eye to his concept of the Relative Constitution. The distinction between Absolute and Positive Constitution seems to be that the Absolute Constitution is a strictly formal discussion about the constitution as a principle of unity. Positive Constitution focuses on the Absolute Constitution when it has received its content.128 In other words, Schmitt theorizes the Positive Constitution is the determination of what the Absolute Constitution only discusses in formal terms. It is the “conscious decision” by a political unity for itself, for a concrete unified existence, which is made by an authority.129

Positive Constitution seems to be linked to the Absolute Constitution through definition II.2: constitution as an act of will. Citing Spinoza, Schmitt argues whichever affective qualities define the core of this particular political existence are those values that must be preserved and gain the right to self-preservation.130 Self-preservation is a curious way to describe the maintenance of values. But, as the existential core, they take on qualities that can elevate their own existence, so that a living individual may willingly sacrifice himself for the sake of perpetuating that ideal.

What distinguishes the Positive Constitution is that it is determined. It fills in explicitly what the Absolute Constitution considers only formally. The Positive Constitution is a decision. Turning to Weimar, Schmitt argues there are several decisions in its Positive Constitution. Weimar is (a.) a democracy; (b.) a republic; (c.) a federated state, with distinct Länder comprising it; (d.)

126 Karl Mannheim would make similar claims in Karl Mannheim, Diagnosis of Our Time: Wartime Essays of a Sociologist (London: Routledge & Kegan Paul, Ltd., 1950). 127 Schmitt, Constitutional Theory, 77. 128 Schmitt, Constitutional Theory, 75, 77. 129 Schmitt, Constitutional Theory, 75-76. 130 Schmitt, Constitutional Theory, 76.

Page | 164 Leviathan Run Aground: Chapter 5 parliamentary-representative form; (e.) the bourgeois Rechtsstaat.131 These are all distinct political decisions. And, importantly, while they are not mutually exclusive, the Idea expressed by each does fundamentally contradict the others, meaning that cases may arise where a decision contradicts another, even if they can coexist peacefully for the most part. For example, he argues the decision for Federation contradicts the decision for republic; the bourgeois Rechtsstaat contradicts democracy. In fact, both of these contradictions would require a decision within four years of Schmitt's first writing about this tension. Schmitt also suggests that any constitution will have multiple potential decisions and that, in moments of crisis, a sovereign authority would have to clarify the community’s true existential-political “decision” by deciding which has priority. Thus, there are clear links between the political and the Positive Constitution. c. Constitution Politicized: The Ideal Constitution (Constitutional Theory §4)

The Ideal Constitution complements the Positive Constitution. Schmitt writes that “for political reasons, that which is designated as a “true” or “genuine” constitution often only corresponds to a particular ideal of the constitution.”132 This definition follows on Schmitt’s argument that the Positive Constitution, absent an existential decision, devolves into “linguistic manipulation.”133 “Idealization” of a constitution is the politicization of its core concepts. For example, Schmitt contrasts the Marxist/Bolshevist Ideal Constitution with the bourgeois Rechtsstaat – in the degree to which both hinge on the place of property rights, neither will recognize the other’s constitution as legitimate precisely because it does not correspond to the (normatively) Ideal Constitution. He argues that the Marxist/Bolshevist Constitution holds any constitution enshrining property rights to be illegitimate because they are the antithesis of its existential commitments. Thus, here, normative valuation creeps into the concept of constitution and turn it into a means of discrimination and exclusion – a means of distinguishing Friends and Enemies. The Ideal Constitution is the politicized version of whichever Absolute Constitution.

When there is a lack of a relativizing status, terms that would otherwise be a point of consensus like “freedom, justice, public order, and security” become divisive and fragmenting as politicized movements read their particular interpretation of those concepts and citizens begin to see one another as enemies.134 The polemical power of language left to indirect powers concerns Schmitt because not only does it deepen political rifts but it offers no grounds for mediation; politicized concepts polarize discussion. When there is no friendship within a community, the formal language in the constitution becomes a part of a total movement’s rhetorical arsenal as they attempt to read it in terms of their particular Ideals. Schmitt’s concept of the Ideal Constitution then seems to be a concretized political and constitutional decision.

131 Schmitt, Constitutional Theory, 77-78. 132 Schmitt, Constitutional Theory, 87. 133 Schmitt, Constitutional Theory, 89. 134 Schmitt, Constitutional Theory, 89-90.

Page | 165 Leviathan Run Aground: Chapter 5 d. Constitution as Written Statute: The Relative Constitution (Constitutional Theory §2)

In Schmitt’s state theory, the intersection of Absolute, Positive, and Ideal Constitution with “the political” presupposes that the state is qualitatively total, i.e. that the state has a monopoly over the political and is not beset by a plurality of total movements. Disenchantment and rationalization also impoverish the constitution; it becomes Relatived. Relativization is the loss of the written constitution’s meta-juridical roots. Relativization leaves only the material component of the constitution: individual positive constitutional laws and statutes.135 When the constitution is fully relativized, it means that only the written constitution is the constitution. 136 As the relativized state is mechanized, the relativized constitution is positive law. The relativization of the constitution means eliminating all but the sixth sense from the above theory.

Constitutional Relativization changes the meaning of “constitution” by eroding its status as higher law in two ways. First, Relativization is a process of formalization and equalization of the distinct components of a constitution, in which the status of any individual law in the material constitution becomes equivalent to every other individual law in the material constitution.137 As an example of this equalization, Schmitt points to how the constitutional status of Basic Rights becomes equal to the status of the right of a civil servant to the privacy of personal papers.138 Yet, for Schmitt, it would be difficult to conceive of a state existentially oriented by the goal of preserving civil servants’ rights to their papers. Conversely, liberal basic rights are normally an end of states today. Relativization annihilates this distinction. All 181 Articles of the Weimar Constitution were conceived of as equal constraints. And were a situation somehow to arise which necessitated violating Weimar’s Article 129,3 for the sake of preserving its Basic Rights, a Relativized Constitution could offer no legal justification to do so. The second way relativization alters the meaning and significance of constitution is by eroding what makes a constitution distinct from other law. The constitution ceases to have qualities that make it distinct from normal law, except for the fact that it is more difficult to change because of a super- or qualified majority procedure (if it is more difficult to change) and that, often times, constitutional law is written in a document called “constitution.”139 The Relative Constitution, according to Schmitt, is a disenchanted form of the historical and normatively meaningful (Absolute) Constitution.

135 Schmitt, Constitutional Theory, 65-66; cf. 54-55. 136 Or rational-legal legitimacy becomes positivist law. It should be borne in mind that Schmitt’s criticizes rational- legal legitimacy only after it has been divorced from relative rationalism of 19th century liberal metaphysics. That is, when law is reduced to merely its language and becomes merely a tool in the service of any ideology that can “fill” the content of that language. 137 Schmitt, Constitutional Theory, 67. 138 Schmitt, Dictatorship, xxxiv(ff); Schmitt, Constitutional Theory, 80-81; Schmitt, Legality and Legitimacy, 43, 52. Similarly the strictly positivistic orientation of the Relative Constitution cannot distinguish between norms and decrees, even. Carl Schmitt, "The Dictatorship of the Reich President According to Art 48 of the Reich Constitution (1931)," Constellations 18, no. 3 (2011): 319. 139 Schmitt, Constitutional Theory, 73.

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Regarding whether super-majority protections of the constitution offer any meaningful difference to the constitution, both in terms of its status and in terms of defending it from illegitimate change, Schmitt writes that super-majority protections are constitutionally more stable than simple majority amendment procedures. But he thinks they are only marginally so. Both are ultimately “legitimate” only through mathematically arbitrariness. Neither has any relationship to substantive reason. He writes that, by confusing the “quality” of the status of the political community with the arbitrary “quantity” of whatever affect happens to inspire the greatest number of individuals at any given moment, this “half-measure” fails to achieve what it aims to: a definite principle that would stabilize the community and bring it out of the state of nature.140 He argues that so-called qualified alterability fails to provide the stability, durability, and security to the constitution and political status that the constitution, by definition, should provide.141 Should a party deeply hostile to the liberal-democratic constitution manage to obtain a supermajority, so much for the constitution. Super-majority procedures cannot serve as the core principles of a constitution any more than a simple majority can.

The immediate target of Schmitt’s critique of the Relative Constitution is juridical positivism. But his deeper concern is that, in divorcing the law from substance, Relativization paves the way for tyranny (of the majority, in modern mass ). He worries the Relative Constitution cannot serve as a source of unity because the document itself offers no clear hierarchy among the statutes it has.142 As all the individual statutes have equivalent value, the constitution defines no relativizing status but instead, at best, a plurality of statuses. As already discussed, a constitution can contain multiple decisions and, absent some hierarchical ranking, these decisions can become polemically opposed or even, in the case of a value-neutral democracy, abused. A Relative Constitution offers no guidance on the political status of a community and which values, while still existentially important, are subordinate to that status.

Among other things, value-neutrality and equal chance as the basic decision of a community thus enable disingenuous parties, which is to say illiberal and antidemocratic parties hostile to that basic constitutional decision, to affect not only the quotidian operations of the state, but also its constitutional core. Should they obtain power, they can take advantage of the political premiums of the legal possession of state power.143 Beyond the capacity to create for itself a political surplus value through obéissance préalable for all laws and acts of state; management of the military, police and finance, administration and justice; distribution of national wealth, offices, employment and subsidies; and interpretation of the numerous new situations which arise constantly from rapid progress in science, technology and industry,144 this premium allowed those parties to stall and thwart effective governance in a crisis (such as the emergencies facing

140 Schmitt, Legality and Legitimacy, 42, 53-54. 141 Schmitt, Constitutional Theory, 72-73. 142 Schmitt, Constitutional Theory, 67; Scheuerman, Carl Schmitt, 64-65. 143 “Die politischen Prämien auf dem legalen Machtbesitz”;Schmitt, Legality and Legitimacy, 31-32, 35-36; cf. Hertweck, Kisoudis, and Giesler, Solange Das Imperium Da Ist, 70ff; Schmitt, "The Legal World Revolution," 74. 144 Schmitt, "The Legal World Revolution," 74.

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Weimar) as well as to prevent other parties and movements from gaining a majority in parliament, kicking down the ladder to power that equal chance represents.145

Schmitt does concede, though, that there is a sort of basic principle ordering the Relative Constitution. It is Equal Chance. As the fundamental decision of the constitution, equal chance institutionalizes democratic value-neutrality, or completely unqualified toleration. The state is neutral with regard to the content of the beliefs of any political party seeking office, “there are no unconstitutional goals” no matter how “revolutionary or reactionary, disruptive, hostile to the state.”146 The only basis for disqualification is when a party or movement obtains power through illegal means.147 To that end, all must have the opportunity to compete for the right to institutionalize their ideals. And, in fact, Schmitt argues precisely this: Article 76 – the possibility for infinite democratic qualified emendation of the constitution – has been accepted as the principled basis for the Weimar Constitution.148 According to this interpretation, the First Principle Part of the Weimar Constitution, which institutionalized democratic value-neutrality and the principle of equal chance, was the formal constitutional core of the entire Weimar Constitution. Thus, constitutional amendment procedures, like Article 76, institutionalize the principle of equal chance – the Relative Constitution – by guaranteeing the state and constitution's democratic openness to any revision. Yet, amendment principles can hardly constitute a political status – they merely organize the state’s constituted powers.

Equal chance purports to serve as the democratic basis for the constitution but in practice, Schmitt argues, it ends up being unable to provide a basis for unity for two related reasons. The first is that it is actually contentless and merely procedural, tacitly legitimating whatever other set of values provides it with content at a given moment, and more importantly, because it ultimately capitulates to the numerically greatest will, it is suicidal, containing the basis for its self-annihilation in favor of very undemocratic principles. The Relativized Constitution in Schmitt’s depiction ends up as an extension of capriciousness legitimated by “democracy,” or whatever state form happens to prevail at that moment. Denouncing the legitimacy of a merely written constitution with an associated amendment procedure (itself open to emendation), Schmitt argues that “the idea of a written constitution must consistently adhere to the broader idea of a closed constitutional codification and to an absolute concept of the constitution.”149 In other words, a constitution must be based on some substantive reason and political status.

Thus, in the 20th century, Schmitt believes the Relativization of the constitution introduces two novel threats to the state: the and the state of nature. As discussed in Chapter 3, Schmitt argued that shifting majorities use their power to procedurally pass laws

145 Schmitt, Constitutional Theory, 155-156. 146 Schmitt, Legality and Legitimacy, 48-49. 147 , "Legality and Legitimacy," in The Rule of Law under Siege, ed. William E. Scheuerman (Berkeley: University of California Press, 1996), 52ff. 148 Schmitt, Dictatorship, xxxiv(ff.). 149 Schmitt, Constitutional Theory, 70.

Page | 168 Leviathan Run Aground: Chapter 5 against one another and to guarantee the extension of their interests long after they have ceased to be a majority. He even writes a majority in parliament that lost power in recent elections might enact laws requiring a supermajority procedure to be changed to make them extremely difficult to annul, thereby crystallizing their rule even after they have been democratically ousted.150 Supermajority procedures, he writes, only make this process more difficult – but have no relationship to reason or legitimacy.151 And Schmitt argues that, just because a supermajority buys into some constitutional revision, does not mean it is right or legitimate. And in an age of "psycho-technical" manipulation, the Relativized Constitution is particularly vulnerable to disingenuous manipulation by elite, indirect powers. Schmitt believes Relativization enables the constitution to become a tool for indirect powers to pursue their particular interests and to dominate the state. e. Nomos Basileus

As argued in the last chapter, in 1934 Schmitt began to describe his ideas in terms of the suprapersonal rule of “concrete-order” in order to distance his concepts from the arbitrariness decisionism could imply. There, I showed how Schmitt argued nomos was Recht, by which he meant it “encompassed” a juridical order and political community by serving as its transcendent normative ideal.152 He argued legitimate political rule occurred to the degree to which a ruler represented the community’s “nomos.” Thus, in this work, Schmitt’s concept of nomos ends up sounding much like the political – it also sounds a lot like Hegel’s Sittlichkeit. Nomos provides the juridical ideal on which a political community is based and defines the terms of political and legal legitimacy. It is the normative standard against which both the state and individuals lives are measured and the end which they aim. Schmitt appears to use nomos as a device to repackage and reinvent his concept of the political and status.

In that text, Schmitt introduced a concept that would become the defining concept of his international legal theory. While his 1950 The Nomos of the Earth is focused on international law, and thus somewhat peripheral to his state theory, one still finds within his concept nomos further iterations of his theories of the state, constitution, and the political. And it is worth drawing attention to the degree to which this overlap exists.

Circling around the concept, Schmitt defines nomos in many distinct but overlapping ways. Nomos is constitutive of a political community.153 It is the relation of order and orientation.154 It is the original act from which law and the political, social, and religious order spring.155 It is the higher objective or “soul of the whole.”156 It is the foundation or foundational act.157 It is the

150 Schmitt, Constitutional Theory, 70. 151 Schmitt, Constitutional Theory, 71, 70. 152 Schmitt, On the Three Types of Juristic Thought, 50-51. 153 Schmitt, The Nomos of the Earth, 45, 47, 48, 69, 71, 73, 78, 327, 341, 345. 154 Schmitt, The Nomos of the Earth, 67, 70. 155 Schmitt, The Nomos of the Earth, 46, 48, 71. 156 Schmitt, The Nomos of the Earth, 48, 71.

Page | 169 Leviathan Run Aground: Chapter 5 bracketing of the state of war or chaos, within which a state of peace or cosmos can exist.158 It is the antithesis of mere legality or mere compulsion through power – it is the source of the legitimacy of all law.159 It is impersonal in the sense that when a king rules according to the dictates of nomos, his decisions become more than merely acts of power or domination.160 It is the counter-concept to democracy.161 It is the origination of the commonwealth or Leviathan.162 It determines the concrete nature of the relationship of protection and obedience.163 It is communal and public.164 It is the guarantee of an existential minimum for all.165 It is important to take away from this both how Schmitt sees nomos as uniting these different qualities and how nomos is a lost yet essential concept for modern jurisprudence.

In so defining nomos, Schmitt begins to sound a bit like a broken record. He repeats arguments we already know, modified and repackaged under this new concept. Perhaps he does so in order to approach them differently. Perhaps it is in response to adapt to problems or failures the old ideas had suffered. Perhaps it was just a bid for new attention to his work. Or perhaps he believed a stronger basis to link his work on political and legal legitimacy into international law was by linking it to the authority of an older concept.

Regardless of his motivations, the definitions of nomos he provides all point to what I have already been describing in this and the previous chapter. Constitution too is “soul.” Similarly, it is both the order and orientation (or telos) of the state and community. Constitution is “constitutive,” both of juridical order but also the community of friends. It, along with the political, is the existential basis for a community. The state achieved the bracketing of the state of nature, ceasing the bellum omnium contra omnes, and realized the civil status through its neutralization of all other authorities and truths. The political, too, seems to be all of these things. Above all, it is clear yet again that Schmitt’s foremost juridical goal is to define some terms of natural law or objective reason that can serve to rein in what he thought was the arbitrary, positivistic government of his day. Of particular importance here is again how Schmitt juxtaposes nomos with forms of government that ultimately rely on will (forms of both “–cracy” and “–archy”). For example, he argues both democracy and monarchy are problematic insofar as they are depart from the quasi-objective reason nomos provides. Nomos lacks the subjective, pathological element that especially democracy, through its plebiscites, has.

Schmitt wanted to restore authority to the state, authority that would provide a basis to deny what he thought was the arbitrary rule of democratic majorities. Rule divorced from some form of

157 Schmitt, The Nomos of the Earth, 73. 158 Schmitt, The Nomos of the Earth, 51, 74, 140. 159 Schmitt, The Nomos of the Earth, 69ff. 160 Schmitt, The Nomos of the Earth, 338. 161 Schmitt, The Nomos of the Earth, 68, 72-73, 337-342. 162 Schmitt, The Nomos of the Earth, 69, 327, 345. 163 Schmitt, The Nomos of the Earth, 48. 164 Schmitt, The Nomos of the Earth, 45. 165 Schmitt, The Nomos of the Earth, 337.

Page | 170 Leviathan Run Aground: Chapter 5 objective reason was dangerous and tended to cause politicized divisions that collapsed the state. Schmitt wanted to carve out a space for a form of reason that could preserve authority despite disenchantment. His use of concepts like Recht, the political, Absolute Constitution, nomos, or concrete order, all appear to be related facets of this one underlying theme, which bursts through Schmitt’s political and legal writings. Schmitt’s state theory is above all an attempt to restore the state as an authoritative sphere of objective reason that, despite the disenchantment of the world, can hold back the chaos of the state of nature and allow for meaningful peace and stability.

3. Dictatorship: The Constitution and the Exception

The concept of dictatorship is important for Schmitt’s state theory for three reasons. First, it is an essential aspect of the presidency. Second, it is a continuation of Schmitt’s analysis about the state, state of nature, and maintaining political community. And third, Schmitt conceives of dictatorship in the same rationalistic terms he does the rest of the state. In fact, he understands the dictator in essentially Platonic terms, as a (virtuous) agent capable of rationally guiding the state through exceptional circumstances. Dictatorship is a continuation of Schmitt’s theory of the state as the rule of reason.

Yet Schmitt's theory of dictatorship is often regarded to be his most problematic contribution. Scheuerman argues Schmitt’s concepts of dictatorship and legal indeterminacy are closely linked.166 Scheuerman believes that, because of a tension in Schmitt’s thought, dictatorship can be read one of two ways. Either Schmitt makes a genuine attempt to analyze an institution that is necessary for the preservation and defense of republican states. Or, because indeterminacy actually pervades every legal syllogism, Schmitt instead abuses indeterminacy to mask a total deformalization of the law and arbitrary decisionism. That is, Schmitt subtly makes dictatorship into a permanent institution. Scheuerman argues Schmitt does the latter, writing that Schmitt’s 1918 theory of dictatorship contained the seeds for his later embrace of fascism. Scheuerman adds that, despite Schmitt’s express assertions that dictatorship is not a despotic or tyrannical institution but one oriented toward restoring the legal order even if not by the formal rule of law, this too is a façade masking the dictator’s arbitrary rule.167

McCormick seems to follow and build on Scheuerman’s conclusions to some extent. Like Scheuerman, he notes there is a tension in Schmitt’s concept of the dictator. But McCormick believes this tension results from a shift in Schmitt’s thought. In his 1921 Dictatorship, Schmitt analyzed dictatorship genuinely in the comparatively benign sense described above – as an institution necessary for the preservation and defense of republican states. But by 1923, when Political Theology was published, McCormick argues that Schmitt’s aims had shifted and he

166 Scheuerman, Carl Schmitt, 30-32. 167 Scheuerman, Carl Schmitt, 33.

Page | 171 Leviathan Run Aground: Chapter 5 now understood dictatorship very much in the pathological terms Scheuerman describes.168 And, also like Scheuerman, McCormick concludes that (setting aside his early stance in Dictatorship), Schmitt laid the groundwork for fascism with his arguments for dictatorship by 1923.169

This section reexamines Schmitt’s concept of dictatorship. Schmitt’s discussion of dictatorship hinges on how parliament, the defense of the constitution, and democracy all changed in the transition from the 19th to the 20th century. Schmitt’s dictatorship hinges on, even as it anticipates, his theories of the Absolute Constitution and the political. This section argues against claims, like those by Scheuerman and McCormick, that Schmitt intended to use dictatorship to create a state of permanent exception or that his dictatorship contains the seeds of a fascist “leader” driven state. To the contrary, as discussed earlier, Schmitt was concerned not with instituting disorder and chaos but with normality. Dictatorship, he believed, was a necessary republican institution – not the means to drive the state into a permanent state of exception (i.e., lawless civil war). Dictatorship appears to positive legal theory to be irrational and illegitimate. But, when framed in terms of the Absolute Constitution dictatorship becomes normatively limited even as an emergency institution. a. Exceptional Order: Dictatorship as Defensor Pacis

The original meaning of dictatorship, Schmitt writes, was being supplanted by concepts such as tyranny, despotism, Caesarism, , etc. – all of which connoted the illegitimacy and arbitrariness of the institution.170 To restore its original sense, he reconstructs the concept. i. 19th Century Metaphysics and the Rationalization of the Exception

Originally, he argues, dictatorship was distinct from tyranny. It was an essential institution of classical republics (i.e. Rome and the Italian City-State Republics): they were normally governed according to the rule of law but its formal qualities at times required exceptions for the sake of either emergencies or equity.171 Dictatorship, while given wide latitude to act and freed from the constraints of law, was not an institution of arbitrary rule for its first 2000 years. By the 19th century, however, Schmitt thought it had become synonymous with despotism. Nevertheless, its original purpose – under different names – continued to be provided for in constitutions. Similarly to classical republican institutions, the nature of the liberal democratic Rechtsstaat presupposed the rule of law as the center of political order. And, again similarly, constitutional legislators foresaw the need for an institution capable of reacting to exceptions and maintaining a state beyond legality. In particular, Schmitt argues that in the 19th century dictatorship evolved

168 John P. McCormick, "The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Power," in Law as Pol t s: Ca l S m tt’s C t qu of L al sm, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 217ff. 169 McCormick, "The Dilemmas of Dictatorship," 242. 170 Carl Schmitt, "Diktatur (1926)," in Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916-1969, ed. Günter Maschke (Berlin: Dunker & Humblot, 1995), 33; Schmitt, Dictatorship, xxxvii-xxxix. 171 Schmitt, "Diktatur," 12, 33-34; Schmitt, "The Dictatorship of the Reich President," 319; cf. Schmitt, Dictatorship, 1-7, esp. fn 2 (pp.230-231).

Page | 172 Leviathan Run Aground: Chapter 5 into the (more rationalized) concept of “State of Siege” [Belagerungszustand], which assumed dictatorship’s purpose but (then) without its negative connotation.172

Schmitt argues this conceptual shift came about when 19th century state theorists attempted to rationalize or legally regulate all order, including what a dictator could do in emergencies.173 Although the dictator may have fused the different branches of the state in emergencies, his ability to interfere in that state’s civil society was as constrained as it was for the executive branch in normal times. Here, as discussed already, Schmitt argues the Relative Constitution did successfully prevail and the restriction of the latitude of dictatorial authority was based on that success.174 He further concludes that the (relative) rationalization of the state of exception succeeded in the 19th century because a decisive status had been realized by the state. He argues that the legal-rational formalization of the concept dictatorship succeeded because of the absence of an internal enemy opposed to the relativizing political status.

Because of how the Relativize Constitution equates all laws in the (written) constitution, it renders dictatorship unconstitutional because the violation of any constitutional law is unconstitutional – there is no basis to determine whether the violation of a particular constitutional law for the sake of the whole is legitimate or not.175 A Relativized Constitution cannot tolerate dictatorship in its classical republican sense because there is no (positive) legal basis to distinguish the essential core of the constitution, in need of protection, from other constitutional laws. The original meaning and purpose of dictatorship is lost when every single constitutional law ends up having a greater value than the constitution as a whole. To complicate matters, Schmitt argues that, under a Relative Constitution, institutions with the extra-legal authority to act will become tyrannical – after a society has pluralized politically. Because there is no basis to distinguish legitimate from illegitimate violations of constitutional laws, disingenuous movements can rhetorically justify dictatorial acts at odds with the deeper substance but not the language of the written constitution as a series of individual laws.

When approached through the Absolute Constitution, the institution of dictatorship appears differently, Schmitt argues. A violation of particular written laws in the constitution for the sake of its underlying meta-juridical principles can be legitimated, given a situation in which a decision between the two must be made. In other words, breaches of the Relative Constitution for the end [Zweck] of preserving the Absolute Constitution are justified – they just cannot be

172 Schmitt, "Diktatur," 34; Schmitt, Dictatorship, 170-175. Caldwell notes that Schmitt argues there is a false identity between the two. Caldwell, Popular Sovereignty, 56. Schmitt’s point is more sophisticated than Caldwell allows. Because of the stigma attached to dictatorship by the 19th century and because of the relative success of normalizing even exceptional states, what was effectively dictatorship could be conceived of as a state of siege. 173 Schmitt, Dictatorship, 172ff., 179; Schmitt, "Diktatur," 34; Schmitt, "The Dictatorship of the Reich President," 311-312. Constitutional Theory? 174 Schmitt, Dictatorship, 178. 175 Schmitt, "The Dictatorship of the Reich President," 315.

Page | 173 Leviathan Run Aground: Chapter 5 done so according to positive law.176 The Absolute Constitution serves to order the written laws of the constitution, showing which have priority; which are violable or inviolable.

Schmitt wants to revise our understanding of dictatorship:

The constitution determines the fundamental organization of the state and decides what order is…it would be a dangerous misuse of the constitution to write into it every possible pet project as a basic right and quasi-basic right…The constitution says what the normal order in the state is. Its task and its value consist in deciding fundamentally what the public interest, public safety, and order are…It would be politically naïve and juristically false to employ an idyllic and vor-März concept of calm and security here through administrative legal notion developed for the legal limitation of political law and try to master dictatorship as something encompassing the state as a whole.177

The rationalization of dictatorship works only as long as “powerful associations,” i.e. indirect powers, do not reemerge and seek to subvert the political status.178 Just as a Relatived Constitution becomes a subversive tool in the hands of irrational and factional movements erupting out of 20th century society, rational-legal limitations on dictatorship render it too passive to respond adequately to these threats. Because of the broadened legal latitude for exploitation, a dictator needed correspondingly broader power to respond to potential threats. ii. The Ends of Dictatorship

Schmitt understands dictatorship as legitimate when it suspends individual constitutional laws for the sake of the Absolute Constitution.179 He defined dictatorship as “the exercise of state power freed from legal constraints for the purpose [Zweck] of overcoming an abnormal state [abnormen Zustands], especially war and insurrection. Thus, decisive for the concept of dictatorship is first the idea of a normal state [normalen Zustands], which should be restored or brought about by the dictatorship, and furthermore the idea of certain legal constraints, which are abolished (suspended) in the interest of eliminating the abnormal state [abnormen Zustands].”180 He describes it as a reactive concept responding to the “compellingness” of concrete circumstances.181 Concrete changes necessitate a concrete reaction.182 Dictatorship is a reaction to an emergency threatening the existential core of the constitutional order.183

Most of Schmitt’s interpreters, including Scheuerman and McCormick, have drawn attention to how Schmitt juxtaposes abnormal and normal states, which serves to conceptually define the

176 Schmitt, "The Dictatorship of the Reich President," 314-315. 177 Schmitt, "The Dictatorship of the Reich President," 314. 178 Schmitt, Dictatorship, 179; Schmitt, "The Dictatorship of the Reich President," 314. 179 Schmitt, Dictatorship, xxxiv. 180 Schmitt, "Diktatur," 33 (my translation). 181 Schmitt, Dictatorship, 118. 182 Schmitt, Dictatorship, 117 (cf. xxxiv). 183 Schmitt, Dictatorship, 1, 8, 178-179.

Page | 174 Leviathan Run Aground: Chapter 5 ends or purpose of dictatorship.184 McCormick goes further and notes dictatorship’s “functional” or “technical” nature.185 But they stop short of drawing out the full implications of Schmitt’s claim: he conceives of dictatorship in terms of instrumental rationality, i.e. Weber’s Zweckrationalität. Instrumental rationality can be defined as purposive, useful, and calculating reasoning, which takes for granted (or does not question) whatever purpose or end it is given.186 Over and over, Schmitt describes dictatorship in terms derivative of this concept.187

As an instrumentally rational institution, Schmitt argues dictatorship is bound by the constraints of its predetermined ends [Zwecke]. In fact, the dictator too is an authority bound to its source – and it is not by accident that Schmitt describes the Papal origins of the modern concept of commissarial dictatorship in terms identical to how he describes the concept of representation in texts published before and after Dictatorship.188 The dictator is a representative institution, just one not bound by positive law.189 Its specific end is the restoration of “normal” order in which positive law can fulfill its function.190

Schmitt argues that the commissar, out of which modern dictatorship emerged, was a precursor to the modern state, namely its rationalization of the political and legal administration. In other words, before bureaucracy could “congeal” into its modern rationalized form, a monarch relied on the relatively deformalized administration of commissars.191 The extra-juridical authority of the commissar was necessary because a formal or legal-rational system of law could not be maintained. The commissar’s fusion of powers was necessary to overcome the competing powers and antithetical goals of the feudal Stände. Once commissioners had sufficiently normalized order by creating a hierarchical administration and had weakened powers competing with the state, the state could rationalize further and assume something much closer to today’s bureaucratic division of labor.192 Schmitt argues the function and end of dictatorship must be understood in this historical development of the modern state: dictatorship and the system of commissars filled a legal void in which a more rationalized legal order could not exist.

184 McCormick, "The Dilemmas of Dictatorship," 217; Scheuerman, Carl Schmitt, 30-31; George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt (Westport: Greenwood Press, 1989), 31; Cristi, Carl Schmitt and Authoritarian Liberalism, 205. 185 McCormick, "The Dilemmas of Dictatorship," 218-219, 221. 186 David M. Rasmussen, "Critical Theory and Philosophy," in The Handbook of Critical Theory, ed. David M. Rasmussen (Malden: Blackwell Publishers, Ltd., 1999), 22ff; cf. Max Weber, Economy and Society: An Outline of Interpretive Sociology 2vols., vol. 1 (Berkeley: University of California Press, 1978), 24. 187 He describes dictatorship in terms of its purposive [Zweck] orientation 104 times in Dictatorship. See Schmitt, Dictatorship, xl, 1, 7, 8, 9, 117; Cf. Schmitt, "The Dictatorship of the Reich President," 304; Schmitt, "Diktatur," 1. 188 Schmitt, Dictatorship, 39 (esp.34-45). Cf. my discussion of representation in Chapter 4, Sec. III. 189 Galli, La Genealogia della Politica, 273. 190 Schwab, The Challenge of the Exception, 31-31; Scheuerman, Carl Schmitt, 30. 191 Schmitt, Dictatorship, 20-33, 140-143. 192 Galli, La Genealogia della Politica, 576-577.

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Schmitt thus argues that the rationality of modern dictatorship is the implementation of legal order. Dictatorship creates the conditions in which Recht can exist at all.193 Another way Schmitt conceives of dictatorship is through the distinction of Recht and Rechtsverwirklichung [the implementation of law].194 For Schmitt, dictatorship is Rechtsverwirklichung.195 It is accordingly subject to Rechtsverwirklichungsnormen [the norms of the implementation of law], not Rechtsnormen.196 Here too, the legitimacy of dictatorship lies in its end of creating a space for Recht.197 But, anticipating his discussion of the Absolute Constitution, Schmitt argues even the law [Recht] is not an end in itself, “[it] is a means to an end, to the existence [Bestehen] of society.”198 Should the law be incapable of saving society, other means become legitimate, including the use of force. He writes there is a tacit reservation in law that allows its suspension for the sake of the public interest.199 Spinoza’s in suo esse perseverare sits in the background of Schmitt’s concept of dictatorship. Finally, Schmitt’s concept implies dictatorship is not so much a suspension of a legal order as a recognition that concrete affairs are already so abnormal that to continue attempting to enforce the normal order no longer makes sense.200 iii. The Means of Dictatorship

Although legal order and dictatorship have the same end, Schmitt argues they have different means and occur in different contexts. That context determines which is appropriate. Since dictatorship is an institution that reacts to the abnormality of legal order, its specific means must be appropriate to abnormality. Schmitt notes (following Machiavelli) that both the deliberative nature of the Rechtsstaat as well as the separation of powers create debilitating hurdles in abnormal states, when timing matters.201 Fusing powers into a non-deliberative institution is legitimated by the pending collapse of the constituted order itself. To that end, dictatorship is an empowerment [Ermächtigung]. This empowerment comes about in opposition to three normal institutions202:

1. Constitutional constraint and guarantees of basic liberties; dictatorship circumvents individual constitutional laws, including basic liberties, when they stand between the institution and its specific end (the preservation of the status). 2. Parliamentary discussion and relative rationalism; dictatorship circumvents deliberation and relative rationalism in order 3. Democracy and equal chance.

193 Cristi, Carl Schmitt and Authoritarian Liberalism, 205. 194 Schmitt, Dictatorship, xlii. 195 Schmitt, Dictatorship, xlv. 196 Schmitt, Dictatorship, xliii, 16-17, 21, 99, 118. 197 Schmitt, Dictatorship, xlii. 198 Schmitt, Dictatorship, xlii-xliii. 199 Schmitt, Dictatorship, 18. The principle clausula rebus sic stantibus seems to embody this tacit reservation. 200 Schmitt, Dictatorship, 118. 201 Schmitt, Dictatorship, 4. 202 Taken from Schmitt, "Diktatur," 36-37.

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A dictator is free to choose the means appropriate to the restoration of the normal order but the dictator’s authority comes from the constitution. b. The Absence of Order: Dictatorship as Creator Pacis

Schmitt theorized “commissarial” dictatorship as an institution essential for republics. He also theorized another type of dictatorship: “sovereign” dictatorship. The concerns about Schmitt’s dictatorship – that it is inherently expansive and ends up allowing for even an ostensibly commissarial dictator (such as the Reichspräsident) to exercise sovereign authority, including the power and, in a sense, the authority to substantially amend or abrogate a legally constituted order – stem from sovereign dictatorship.

McCormick explicitly writes that “[sovereign dictatorship] becomes the power to perpetually suspend and change political order in the name of an inaccessible people and an eschatological notion of history.”203 Peter Caldwell argues that, in the democratic age, the sovereign dictator is the people freely and consciously constituting itself.204 Caldwell, McCormick, and Dyzenhaus interpret Schmitt’s sovereign dictator as being identical to the sovereign he theorized in Political Theology.205 While there is good reason to be concerned about the expansive potential of dictatorship, on closer examination Schmitt’s concept of sovereign dictatorship appears different from how it has been understood until now. i. The Persistence of Representation: Sovereign Dictatorship and the Commission

Like its sister concept, Schmitt defines sovereign dictatorship as “the exercise of state power freed from legal constraints for the purpose [Zweck] of overcoming an abnormal state [abnormen Zustands], especially war and insurrection. Thus, decisive for the concept of dictatorship is first the idea of a normal state [normalen Zustands], which should be restored or brought about by the dictatorship, and furthermore the idea of certain legal constraints, which are abolished (suspended) in the interest of eliminating the abnormal state [abnormen Zustands].”206 Sovereign dictatorship is authorized when “the entire legal order [Rechtsordnung] is suspended [aufgehoben] and the dictator serves the purpose [Zweck] of bringing about an entirely new order [neue Ordnung].”207 Sovereign and Commissarial dictatorship share much. Both are instrumentally rational institutions oriented toward realizing legal order in its absence through the legally unconstrained use of power. But the initial definition offers the simple distinction between the two types of dictatorship: the commissarial dictator restores [wiederherstellt] the normal state whereas the sovereign dictator brings about [herbeiführt] a normal state in the first place. In both case, the dictator’s end of the creation of legal order hinges on the distinction of

203 McCormick, "The Dilemmas of Dictatorship," 223. 204 Caldwell, Popular Sovereignty, 99. 205 McCormick, "The Dilemmas of Dictatorship," 217-218; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997), 75-76. 206 Schmitt, "Diktatur," 33. 207 Schmitt, "Diktatur," 35.

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Rechtverwirklichung from Recht.208 Sovereign dictatorship, too, is a reactive institution in Schmitt’s theory.

Schmitt adds that sovereign dictatorship may be further subdivided. It can either follow a revolution or it can be revolutionary itself.209 In other words, either sovereign dictatorship only fills a void in order, which it did not itself generate. Or it first creates that void and then fills it. Of this latter type, Schmitt writes, “[it] can, however, also consist in when a revolutionary party – referring to the true will of the people – seizes state power for itself and exercises it, albeit provisionally, i.e. until the realization of the condition [Zustand] in which the people can freely exercise their will, but it admittedly decides itself on when this condition has arrived.”210 Schmitt offers a historical example of both types of sovereign dictatorship.211 Non-revolutionary sovereign dictatorship is “the common case of the modern democratic state,” exemplified by the French National Assembly of 1848 and the Weimar National Assembly from 1919.212 The Bolshevik dictatorship of the proletariat exemplifies revolutionary sovereign dictatorship.213

As noted, concerns like McCormick’s hinge on the role the “ex nihilo decision” plays in sovereign dictatorship and the propensity for commissarial dictatorship to take on this power.214 From the identity of sovereignty and the sovereign dictator, plus the fuzzy line between sovereign and commissarial dictatorship, interpreters conclude Schmitt smuggled sovereign authority into his concept of dictatorship.

But the sovereign dictator is not a sovereign in Schmitt’s theory. According to Schmitt, all dictatorships are commissioned. He theorizes the sovereign dictator too is a commissioned

208 Schmitt, Dictatorship, 118. 209 Schmitt, "Diktatur," 35. 210 Schmitt, "Diktatur," 35. 211 All three are taken from Schmitt, "Diktatur," 35-36. 212 Schmitt, "Diktatur," 35; Schmitt, "The Dictatorship of the Reich President," 311. 213 Schmitt, "Diktatur," 35, 36. 214 Moreover, McCormick’s part of the distinction between the Schmitt of Dictatorship (1921) and of Political Theology (1923) hinges on the 1923 innovation of the definition of sovereignty that “Sovereign is he who decides on the exception [Souverän ist, wer über den Ausnahmezustand entscheidet].” In fact, however, a relevantly similar definition does occur in Dictatorship: “The question of who decides on it, i.e. on the legal, unregulated case, becomes the question of sovereignty. [Die Frage, wer über sie, d. h. den rechtlich nicht geregelten Fall entscheidet, wird die Frage nach der Souveränität. The passage continues – Auf diese Souveränität als die prinzipiell unbegrenzbare Befugnis, das zu tun, was nach Lage der Sache im Interesse der staatlichen Sicherheit geboten ist, ohne Rücksicht auf die etwa entgegenstehende konstituierte Ordnung…]” Schmitt, Dictatorship, 168-169; Carl Schmitt, Die Diktatur: von den Anfängen des modernen Souveränitätsgedanken bis zum proletarischen Klassenkampf (Berlin: Duncker & Humblot, 1989), 194. McCormick wants to suggest that the 1921 text is more genuinely concerned with a legitimate republican institution because it is not concerned with freeing up sovereign authority, whereas the later text characterizes a shift to fascism in Schmitt’s theory. In fact, this distinction does not hold. Setting aside my counterargument here (that Schmitt was not a proto-fascist theorist because dictatorship writ large excludes sovereignty for him), McCormick cannot have his cake and eat it. Because he recognizes sovereignty as that instance of decision in an unlegally constrained situation (the exception) also in Dictatorship, either Schmitt was always a fascist theorist or some other explanation must account for his change (or lack thereof) in orientation toward the institution of sovereignty and dictatorship.

Page | 178 Leviathan Run Aground: Chapter 5 institution – it is just not commissioned by the existing constitution. It is instead constituted by the sovereign. In a long passage worth quoting at length, Schmitt clarifies what this means:

“In both cases [sovereign dictatorship, occurring either only after a revolution or before as a cause of that revolution], there exists [vorliegen] a commission of action [Aktionskommission] as in the commissarial dictatorship, and in both cases the concept remains functionally dependent on the idea of a rightful constitution – because even in the revolutionary dictatorship the constitution to be realized by that dictatorship is itself suspended, as is the ever present pouvoir constituant. But, while commissarial dictatorship is authorized by a constituted organ and is entitled by the existing constitution, sovereign dictatorship exists only quoad exercitium [in relation to what it does] and it is derived [abgeleitet] immediately [unmittelbar] from the formless pouvoir constituant. It is truly a commission…But because the external conditions have yet to be created in order for the constituent power of this same people to come into effect…the content of the constituting will, in itself problematic, is not actually available. Consequently this dictatorial power is sovereign, but only as a ‘transition [Übergang]’; and, because of its dependence on the task to be accomplished, this power is sovereign in a completely different sense from that in which the absolute monarch or a sovereign aristocracy can be said to be ‘sovereign.’ The commissary dictator is the unconditional commissar of action of a pouvoir constitué, and the sovereign dictator is the unconditional commission of action of a pouvoir constituant.”215

According to Schmitt, whatever sovereignty a sovereign dictatorship can be said to have is completely different from that of a self-constituting “people.” Like commissarial dictatorship, sovereign dictatorship is subordinated to a definite idea of Recht. Sovereign dictatorship is, also similarly, an Aktionskommissar constrained by an end not set by itself in Schmitt’s theory. Both types of dictatorship are constituted powers. As an example of sovereign dictatorship, Schmitt provides the National Convention of 1792, which was merely an “extraordinary organ of the pouvoir constituant,” not the pouvoir constituant itself.

The difference between commissarial dictatorship and sovereign dictatorship is not, then, that one is sovereign and the other is merely constituted. The difference is one of whether there is mediation between the dictator and the pouvoir constituant. For the sovereign dictator, the authorization chain proceeds “immediately”: pouvoir constituant  sovereign dictator; whereas for the commissarial dictator, authorization is mediated: pouvoir constituant  constitution  commissarial dictator.216 Its authority emanates directly from the pouvoir constituant. For Schmitt, “the concept [dictatorship] always remains in a state of functional dependence on an existing or imagined constitution.”217 That imagined constitution is a legitimate status that simply has not yet been actualized. It is not, however, an arbitrary decision. And both the ends of both forms of dictatorship are determined by it.

215 Schmitt, Dictatorship, 126-127 (translation altered). 216 Schmitt, Dictatorship, 127. 217 Schmitt, Dictatorship, 128.

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Schmitt appeals to Sieyès definition of the pouvoir constituant as the “nation.” I have argued Schmitt understood the pouvoir constituant not as the nation per se, but whatever affective status serves as the existential basis for the political community (“the political”). Sieyès too emphasized that all organs of the state, including the representative of the will of the pouvoir constituant, are ultimately commissarial and bound to its will.218 And that the pouvoir constituant can manifest itself at any time because its power and its legitimacy are unlimited.219 On the other hand, the power of the sovereign dictator (such as the 1919 Weimar National Assembly), is actually comparatively weak and rests entirely on whether “the people” accept its proposed decision. Put differently, the sovereign dictator qua dictator has legally unconstrained Macht, but qua sovereign it fuses it with the Recht it represents; it is sovereign for its authority to legislate, but a dictator because it is commissioned.220 But, Schmitt argues, not even sovereign dictatorship can be understood apart from the normative constraints of representation. ii. A Moment of Pure Decisionism? The Generative Paradox in the Decision

But an open question in Schmitt’s account is whether the dependency of the sovereign dictator on the pouvoir constituant makes any difference. For example, Scheuerman worries that the sovereign dictator’s ex nihilo decision could be wrestled from the pouvoir constituant –the Reichspräsident, for example, could exercise true sovereignty and obliterate the constitution.221 The problem, even for Sieyès, is that a pouvoir constituant is inherently unorganizable and cannot self-constitute.222 Could the sovereign dictator not simply impose a status? And, in that case, would not the sovereign dictator actually be the pouvoir constituant, supplanting the people?

Chapter 4 discussed how Schmitt defines legitimate representation. He believes constituted power is bound to representation and may not simply decide ex nihilo. The problem of the sovereign decision and sovereign dictatorship is that now this decision does appear to be ex nihilo – and it is one made on behalf of the so-called pouvoir constituant. Kalyvas notes how the sovereign dictator is a delegated power and also that it is a constituting power 223 There thus appears to be a paradox in Schmitt’s account of sovereign dictatorship: how does power remain with the pouvoir constituant, despite its inability to self-organize? How can the sovereign dictator be both a delegated authority but also a constituting power? This seeming incoherence is Schmitt’s generative paradox of sovereign dictatorship.

The sovereign power of the pouvoir constituant is merely negative power: it is the power to affirm or reject potential decisions presented to it. But Schmitt believes it generates a dialectic with the sovereign dictator, nonetheless. He argues that “even if the will of the people does not

218 Schmitt, Dictatorship, 125. 219 Schmitt, Dictatorship, 131. 220 Schmitt, "The Dictatorship of the Reich President," 311; Schmitt, Constitutional Theory, 110. 221 Scheuerman, Carl Schmitt, 69. 222 Schmitt, Dictatorship, 131. 223 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (New York: Cambridge University Press, 2008), 90, 100.

Page | 180 Leviathan Run Aground: Chapter 5 exist in terms of content but is shaped primarily through representation, the representative’s dependence on this will – a dependence that is unconditional and, put succinctly, commissarial – persists. The will can be unclear. In fact, it is even the case that it must be unclear, if the pouvoir constituant is to be truly unconstitutable [unkonstituierbar].”224 Schmitt believes the pouvoir constituant, despite being unformed, still determines what legitimate representation is. The dialectic of pouvoir constituant and sovereign dictator is peculiar, then, in his account. The only way to make sense of this relationship is that “the people” does not exist politically, it lacks its decisive status, until the sovereign dictator first represents it. But “the people” holds all right of the determination of the legitimacy of any representation. Its omnipotence consists in its power to negate or reject a representation of itself. The representative represents some status of a people but that people may not embrace this representation. It may refuse it because there is no Identity between what is Represented and what individuals actually are. In this act of quasi-plebiscitary legitimation, the representative (as well as the people) is exposed to the possibility of failure. A people may be stillborn, so to speak.

This process can be demystified with an example. The Weimar National Assembly did not succeed in creating the Weimar state because it was sovereign. It presented a constitution to the pouvoir constituant, which it believed best represented the status of the German people – the German people then acclaimed that representation.225 The 1919 Weimar National Assembly could have failed, however (and, actually, it almost did). Had it failed to present an acceptable decision to the German people, one could then conclude that the sovereign dictatorship of the 1919 Weimar National Assembly had failed to represent the political status if the German people. “The generative paradox” of the commissioned sovereign dictator lies in the work that dictator undergoes to represent something that does not actually exist but a non-existent entity that still holds power over its acts. The people must authority the dictator’s representation to exist in the first place, but it does so “co-originally” with its birth.

As he developed and refined his Constitutional Theory and became more interested in Hobbes, this generative paradox recurs through the dialectic of Identity and Representation. Schmitt writes, “The “contract” that produced the state is, however, only possible through a sovereign guarantee of the order thereby established and only through the state whose power just arose from this general consent. The sovereign is omnipotent through the consent he himself produced and made possible through the omnipotence and decision of the state.”226 Without some antecedent sovereign guarantee, the original contract would have to be founded on mutual trust and understanding, which are exactly the qualities individuals lack in the state of nature. Hobbes’ state is founded around the sovereign authority, but does not seem capable of overcoming the presuppositions of its generation – its logic undermines itself.227 In other words, a people must be

224 Schmitt, Dictatorship, 134 (translation altered). 225 Cristi, Carl Schmitt and Authoritarian Liberalism, 107. 226 Schmitt, On the Three Types of Juristic Thought, 74. 227 Schmitt, Constitutional Theory, 101.

Page | 181 Leviathan Run Aground: Chapter 5 presupposed as existent already by the process through which it would be generated.228 Yet the people cannot be compelled by a Representation; they must Identify with it.229

Here too, Schmitt suggests that “the people” always retains the status as the highest, legally independent, underived power and can deny or withdraw the authority of the representative through mob demonstration, action, and even violence.230 The sovereign-representative faces a high hurdle. The people is not yet determined. Even when it is determined, it remains intangible, an “as if” Ideal. The sovereign, pouvoir constituant itself resists rationalization and this is why it always remains invisible – sovereignty is inherently unrationalizable.231 The sovereign remains “invisible” until it actually exercises its capacity to decide through some definite act, acclaiming its existence and producing a pouvoir constitué.232 Yet the pouvoir constituant lurks in the background and can explode onto the scene whenever it feels compelled to.233 That is, political identity ultimately remains up to actual individuals who affectively feel or do not feel a real Identity with the Represented people, i.e. individuals are motivated by the sense of the “decisive status” of the unity.234 In this regard, Schmitt might appear to stand in the tradition of Locke, Paine, and other thinkers seeking to embed sovereignty and the constituent power within the people. But when one combines Schmitt’s discussion of the pouvoir constituant with his ideas of the political, regulative ideas, and his Platonic and Hegelian roots, Schmitt clearly stands in a different tradition.235 The people are not irrelevant in his account but they are hardly the most important matter in the construction of the commonwealth. The role of Schmitt’s sovereign dictator is to give voice to this formless and unorganized entity so that it may have a concrete, constituted, political existence. But the end of constitution, the end of the decision, is not the will of any people but the will of the “the people,” an invisible ideal.

The last section had argued, following Kalyvas, that Schmitt separated sovereign decisions on the concretization of the political status from “ordinary,” institutionalized politics. But Kalyvas is mistaken to argue that in extraordinary states Schmitt somehow allows for a moment of radical democracy.236 Schmitt limits even extraordinary democracy to mere acclamation in order to deprive actually existing individuals of what he believes is an arbitrary power to decide. This

228 Schmitt, Constitutional Theory, 127. 229 Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge: The MIT Press, 1988), 31. 230 Schmitt, Constitutional Theory, 131-132; Cf. Schmitt, Political Theology, 17. 231 Carl Schmitt, Roman Catholicism and Political Form [Römischer Katholizismus und politische Form], trans. G.L. Ulmen (London: Greenwood Press, 1996), 20-21. 232 Schmitt, Political Theology, 5, 7. 233 Schmitt, Constitutional Theory, 131, 140-142, 271. Silence could be an indication of tacit agreement – this is discussed further with Sieyès’ pouvoir constitué and pouvoir commettant. Cf. Kelly, The State of the Political, 205- 207. 234Schmitt, Constitutional Theory, 143; Schmitt, The Crisis of Parliamentary Democracy, 26. 235 Schmitt and Kelsen appear to share something in common here: regulative ideals, necessary fictions, end up constituting the political order. For Kelsen, it is the intangible Grundnorm; for Schmitt, it is “the political.” Given that both of them emerged out of the turn of the century neo-Kantian tradition, it should be unsurprising that there are these foundational overlaps in their thought. 236 Kalyvas, Democracy and the Politics of the Extraordinary, 124-125.

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limitation is intentional in order to control public will formation and tame it as much as possible. Even in extraordinary states, Schmitt’s authoritarianism is present. The unformed constituting power must be represented by the sovereign representative person.237 But the people as the pouvoir constituant still retains this negative trump power to reject a sovereign dictator’s representation. The resolution to the generative paradox lies in this complicated relationship between representation and acclamation. iii. Who Decides on What? Hard and Soft Decisions

Schmitt’s typology of dictatorship parallels his approach to the decision and indeterminacy itself. Two types of indeterminacy were raised earlier in Chapter 2 in the discussion of quis judicabit? First, there is the generative question: which Idea ought to be represented? This type of indeterminacy, requiring a decision, occurs in the state of nature, only in the absence of a state. Second, however, is how exactly a legitimate Idea ought to be concretized in cases where its concretization is indeterminate. It is a question of the representation of the political status in such a way so as to maintain the political order legitimately.

Renato Cristi offers a way to think about indeterminacy and the decision, which Kalyvas picks up, arguing Schmitt has an implicit distinction between “hard” and “soft” decisions.238 A hard decision occurs in the state of nature in which no order at all can be said to exist.239 It decides on what Idea of order there ought to be and makes it efficacious. It represents the absolute beginning of a specific constitution.240 It is a decision for the Absolute Constitution or the relativizing status. Cristi notes how Hobbes was the first hard decisionist: he recognized that there was no longer a single Idea structuring European political order.241 The hard decision came about “because of the collapse of classical and Christian concepts of order.”242 The sovereign dictator is authorized by the pouvoir constituant to make hard decisions. It is the creator pacis for Schmitt – but only as representing the existential constitution that allows for real individuals within that state to identify with it and live together with one another in peace. The sovereign dictator’s acts bring about the decisive status and end political factionalism.243

Cristi says less about the soft decision: it is “limited and encompassed by the idea of [an] order.”244 It can be assumed to lack the qualities of a hard decision because it does not mark a new beginning and does not occur in normative chaos. He adds that a soft decision occurs only

237 Kalyvas, Democracy and the Politics of the Extraordinary, 128. 238 Cristi, Carl Schmitt and Authoritarian Liberalism, 162; Kalyvas, Democracy and the Politics of the Extraordinary, 144-145. 239 Cristi, Carl Schmitt and Authoritarian Liberalism, 73, 97, 162. 240 Cristi, Carl Schmitt and Authoritarian Liberalism, 97-98. 241 Cristi, Carl Schmitt and Authoritarian Liberalism, 103. 242 Cristi, Carl Schmitt and Authoritarian Liberalism, 162. 243 Schmitt, The Leviathan in the State Theory of Hobbes, 32-33. 244 Cristi, Carl Schmitt and Authoritarian Liberalism, 162.

Page | 183 Leviathan Run Aground: Chapter 5 during a “temporary” return to the exceptionalism underlying a valid system of norms.245 Cristi is correct, although this last remark is misleading. The exception of the soft decision does not occur in the state of exception before a valid system of norms exists, but one that occurs within a still valid system of norms now requiring exceptional measures to persist. An emergency may demand an extra-legal response but it is not a question of constituting a new order.

A soft decision occurs within a legitimate constituted order. Its indeterminacy is not existential but practical. Decision on how to concretize that order can be made by a specific constituted branch of government’s normal acts. But they may also be made through the emergency acts of a commissarial dictator. Both forms of concretization occur through constitutional authorization. Even when that constituted order experiences an emergency or an exception, it still continues to rest on and presuppose precisely that same meta-juridical Idea. Schmitt conceives of the commissarial sovereign in terms of this soft decision and, as such, it is merely a defensor pacis. Its decisions do occur in a state of exception. But this state is not identical to the state of nature in which there is no order whatsoever. c. Commissarial Dictatorship in Liberal Democracy

Schmitt’s guardian (Hüter) of the constitution acts as a neutralizing agent as described in Section I.1. It attempts to remain impartial with regard to societal oppositions, operating as a pouvoir neutre. Should those societal oppositions politicize, the guardian’s duty is to take on a more active role and act to depoliticize them, for the sake of maintaining the state itself.246 The guardian of the constitution falls under this second type of decision: it is commissarial dictatorship. As Kalyvas has argued already, Schmitt did not theorize the Reichspräsident to be a permanent executive dictator – he intended it to preserve and guard the constitution.247 i. Dual Forms of Representation

Schmitt argues either parliament or the Reichspräsident could – theoretically – serve as Weimar’s guardian.248 Both were democratically legitimated, representative institutions.249 The

245 Cristi, Carl Schmitt and Authoritarian Liberalism, 104. 246 Schmitt, Der Hüter der Verfassung, 141, 148-149; Cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 189-190. 247 Kalyvas, Democracy and the Politics of the Extraordinary, 143. 248 As noted in Chapter 3, Schmitt see no reason a priori why parliament cannot serve as the guardian of the constitution. It did in the 19th century. E.g. Schmitt, Der Hüter der Verfassung, 78; Schmitt, "Die Wendung Zum Totalen Staat (1931)," 150, 332. 249 Schmitt, Constitutional Theory, 250ff. As discussed in Chapter 3, Democracy had become the sole basis for political legitimacy by the early 20th century. But the meaning of “democracy” is political – one definition denies the legitimacy of another outright, not “real” or “true” democracy. In the 19th century, democracy meant parliamentary democracy (where, like in Greek democracy, ‘the people’ were property owning men). In the 20th century, this is unrecognizable as democracy. But the 20th century had different forms of democracy too. Two general forms, each with many subdivision, emerged, split along the lines of Rousseau’s theory: Was democracy merely the sum of individual wills, the volonté des tous, no matter the content of those wills? Was there a legitimate volonté générale or was it merely totalitarian democracy? One tended toward authoritarianism, the other toward anarchy. There are good reasons to question the validity of both.

Page | 184 Leviathan Run Aground: Chapter 5 design of Weimar (but not its practice) exemplified this dual defense. Weimar’s parliament was designed to serve as the “definitive political leadership through [a parliamentary] majority” based on the Articles 50, 54, and 59 of its Constitution.250 This structure stemmed, in part, from the structure of the Chancellorship, which was designed to guide and lead parliament through Articles 53, 55, 56, and from the Cabinet, which was designed as a sort of an extension of the Chancellor through Articles 53, 54, 57, and 58. Together, the Chancellor and the Cabinet constituted the Reichsregierung. Schmitt argues that Weimar was designed so that its parliament would be the center of leadership and governance. That is, he thinks Weimar was designed according to 19th century ideals, with parliament at the center of the state.

In the 20th century, the advance of democratic ideals led to other forms of democratic representation.251 Schmitt describes the president as another democratically legitimated branch of government. To continue to realize the Rechtsstaat ideal of the balance of power, the president was designed to counterbalance the power of parliament.252 And, Schmitt argued, Preuß applied this theory in constructing the Weimar Constitution. Through Article 41, the Reichspräsident was a democratically legitimated and accountable elected official. The Reichspräsident’s powers consisted in appointing the chancellor (and thus to affect normal legislation positively), dissolving the Reichstag (to affect normal legislation negatively), and initiating popular referendums (to legislate positively if indirectly) through Articles 25, 73, and 53.253 Besides these measures, the Reichspräsident had one other constitutional mechanism at his disposal: Article 48. Importantly, Schmitt stressed the presidential counter-representative would function autonomously only when parliament was dysfunctional – a stable, majority-controlled parliament would be able to effectively counterbalance the Reichspräsident’s checks on its power.

But, given the actual concrete situation in Weimar, especially toward its end, where total movements had largely undermined parliament’s capacity to govern, it ceased making sense to speak of parliament as the guardian of the constitution. As argued in Chapter 3, Schmitt diagnosed Weimar’s core political problems as stemming from the eruption of politicized factionalism within civil society, which then infected parliamentary politics. Parliament reflected the various organized social powers and became a disharmonious plurality. And this was a problem because of the central role parliament was supposed to play. With the politicization of society infecting parliament, parliament was no longer capable of representing the political status, let alone acting as its guardian. To the contrary, not only was parliament not Weimar’s guardian, it was the main threat to its political and constitutional status.

Parliament was first dominated by negative majorities and then by a positive majority inimical to the core principles of the constitution. In the first case, which happened throughout the later years of Weimar – resulting either in the collapse of the parliament entirely or the dismissal of

250 Schmitt, Constitutional Theory, 363. 251 Schmitt, Constitutional Theory, 315. 252 Schmitt, Constitutional Theory, 316, 362. 253 Schmitt, Constitutional Theory, 364, 369-372.

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parliament through Article 25 in order to allow something to be done by the Chancellor and the President, the Chancellorship would be held by a minority party but would be incapable of passing legislation through parliament and subject to votes of no-confidence by that negative majority. In the second case, the Chancellorship would be held by a party existentially opposed to the values of the Weimar Constitution (in the case of the NSDAP and the KPD, opposed to the core values of both the First and Second Principal Parts of the Constitution). Constitutional alternatives needed to be found that would allow it to continue functioning until its parliamentary crisis could be resolved. As Ellen Kennedy has noted, Schmitt’s discussion of dictatorship and the powers of the Reichspräsident emerge out of the context of a dysfunctional, potentially state- destroying parliament and the need for effective governance.254 ii. The Reichspräsident as the Guardian of the Constitution

Schmitt argued that, because the Reichspräsident was similarly democratically legitimated, it too could act as guardian in emergencies – especially when internal factionalism prevented parliament from doing so. The Weimar system provides for one democratically legitimated institution to counterbalance another; plebiscitary democracy counterbalanced parliamentary democracy and vice versa.255 That is, the balance of plebiscitary democracy and parliamentary democracy fulfilled the organizational principle of the bourgeois Rechtsstaat. Because of the balanced forms of democracy legitimation in its executive and legislative branches, the breakdown of parliament need not incapacitate the state or become a power that could overwhelm the legitimate constitutional order by overwhelming the other branches of the state. Independent of political parties but not apolitical, Schmitt argued the Reichspräsident represented the collectivity and the unity defined by the German people. Yet the sort of representation here was not what physical individuals happened to want at that moment: “the German People,” as a unity, was what was construed in the terms set forth by the Absolute Constitution. That is, although the Reichspräsident was elected by plebiscite, so to speak – especially through his oath to defend the constitution – the democratic basis he is obliged to represent was the status of the German people. The Reichspräsident is bound to the Absolute Constitution as its commissarial dictator and guardian of last instance.256

Schmitt outlines the Reichspräsident’s role as neutral power and guardian of the constitution confronting progressive parliamentary breakdown according to the following scheme257:

a. State as Honest Mediator among Social “Interest-Complexes”

254 Ellen Kennedy, "Emergency Government within the Bounds of the Constitution: An Introduction to Carl Schmitt, “the Dictatorship of the Reich President According to Article 48 R.V.” " Constellations 18, no. 3 (2011): 284-285, 290-292. 255 Schmitt, Der Hüter der Verfassung, 156-159; Schmitt, Constitutional Theory, 362-372. 256 Schmitt, "Diktatur," 35-36. 257 Schmitt, Der Hüter der Verfassung, 143-149. In his Constitutional Theory, Schmitt has a simpler escalating role for the president, between a neutral third (who mediates a functional parliament) and a political leader (who, in the face of a dysfunctional parliament, must catalyze legislation within it). Schmitt, Constitutional Theory, 370-371.

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b. Majority-Forming Objective Third c. State/President as a Third Party (as an Independent Social Power) d. Statal Mediator/President as assuming the Open Decision

Each escalation in this scale seems to correspond to a greater degree of factionalism within society, reflected in its parliament. And each escalation requires a corresponding escalation in the Reichspräsident’s interventionist role. In the first instance, the state, represented by the Reichspräsident, merely mediates between different social interest groups to help arrive to a definite decision.258 In the second instance, the “interest complexes” are divided enough where they effectively neutralize one another.259 The Reichspräsident’s role, then, is effectively to cast a tie-breaking vote – to participate in legislation – based on whichever he believes best represents the public interest. In the third instance, the Reichspräsident not only casts a decisive vote but contributes to deliberation about what constitutes the public interest, to “guarantee the view of the majority represents a fair balance among interests” and that they remain committed to the constitutional ideal of justice.260 At this point, the Reichspräsident becomes the guardian and becomes representative – his neutrality changes qualitatively.261 This third stage is triggered when political factionalism is sufficient for the state itself to be ruptured. Yet Schmitt believes parliamentary action is still possible at this point and the Reichspräsident’s power, even if it is an independent power now, is merely one among the many other powers within parliament.

Should parliament become nothing more than an arena of political pluralism and the constitution become merely an instrument employed by one group in power to dominate the others, Schmitt believes the Reichspräsident, the only legitimate representative of the political status, is compelled to make (soft) political decisions alone.262 Either the state ceases to be a state (that is, it passively allows politicized factionalism). Or the state brings about unity through a decision on its political status and ensures the perpetuation of that order. Given that the president has no actual legislative powers – and that, given the failure of parliament, there will be no forthcoming legislation at all – this final capacity of the president would have to come through the exercise of the powers granted by Article 48,2 – to pass measures to deal with an emergency.

Schmitt’s discussion of the use Article 48 is consistent with this account. The end of Article 48 is to enlarge the area of the state’s initiative to cope with some external situation undermining the status quo.263 That is, to protect the safety and order of the public, as defined by Weimar’s Absolute Constitution (I turn to Schmitt discussion of Weimar’s Absolute Constitution in the next chapter).264 In opposition to the legislative acts of parliament, the Reichspräsident could

258 Schmitt, Der Hüter der Verfassung, 143. 259 Schmitt, Der Hüter der Verfassung, 144. 260 Schmitt, Der Hüter der Verfassung, 145, 147. 261 Kalyvas, Democracy and the Politics of the Extraordinary, 157. 262 Schmitt, Der Hüter der Verfassung, 148-149. 263 Schmitt, "The Dictatorship of the Reich President," 306. 264 Schmitt, "The Dictatorship of the Reich President," 304; Schmitt, Dictatorship, 175.

Page | 187 Leviathan Run Aground: Chapter 5 only issue measures through Article 48 and measures have no power to change the constitution.265 That the president can determine when the status quo is being undermined by internal enemies is categorically different from having any legitimate authority to abrogate the status quo itself.266 The constitution itself could only be changed through Article 76.267 The Reichspräsident’s role – rather than seeking to expand the use of or appropriate Article 76 for his own ends – was to constrain and reduce constitutional change through parliamentary exercise of Article 76. As noted above, the apparent incorporation of sovereign and commissarial dictatorship into the Reichspräsident’s authority is a product of 19th century efforts to rationalize the state of exception entirely – in which any extra-legal actions (that is, actions violating any individual constitutional laws) by the dictator would appear to be an illegitimate exercise of sovereignty.268 In fact, however, the irrationalism of mass democracy necessitates the return to the guardian’s extra-legal authority, constrained by the Absolute Constitution.

Schmitt’s ideal of the Reichspräsident as guardian of the constitution seems to have been modeled on Friedrich Ebert, who invoked Article 48 fairly regularly.269 Schmitt catalogued Ebert’s every use of Article 25.270 And he approved of Ebert’s use of Article 48 to defend the basic idea of order in Weimar’s Absolute Constitution.271 Schmitt approved of actions devoted to the defense of Weimar’s order. Ebert was a liberal democrat who could decide on his friends and was committed to a political principle – he had decided for a form of liberal order that had positive content and recognized its enemy. He was not so committed to value-neutrality that he was willing to stand by and allow Weimar to dissolve in conflicts between the Freikorps and the Spartikusbund. Schmitt thought Ebert understood what his oath to the constitution meant. He could act as the guardian of the constitution precisely because he recognized the substantive decisions contained in Weimar’s Absolute Constitution.272 Hindenburg, on the other hand, suffered his “oath trauma” because he could not distinguish an amendment procedure from an existential commitment.

At the same time, Schmitt warned that this power was contingent on the personal qualities of the man elected and that, were a disingenuous guardian elected Reichspräsident, too much power would be in the hands of an enemy: “with a new president, the Weimar Constitution could

265 Schmitt, "The Dictatorship of the Reich President," 310, 314, 316; Schmitt, Dictatorship, 176. 266 Schmitt, Dictatorship, 175. 267 Schmitt, "The Dictatorship of the Reich President," 314. 268 Schmitt, Dictatorship, 177. 269 Kelly, The State of the Political, 178. 270 Carl Schmitt, "Reichstagsauflösungen (1924)," in fassu gs tl ufs t aus d Jahren 1924-1954. Materialien zu einer Verfassungslehre, ed. Carl Schmitt (Berlin: Duncker & Humblot, 1958), 27. 271 Schmitt, "Reichspräsident und Weimarer Verfassung," 26-27; Schmitt, Der Hüter der Verfassung, 139, 140; Schmitt, "Reichstagsauflösungen," 15; cf. Bendersky, Carl Schmitt: Theorist for the Reich, 34, 74, 100, 112-113, 124; Reinhard Mehring, Carl Schmitt: Aufstieg und Fall (München: C.H. Beck, 2009), 162, 220, 240; Cristi, Carl Schmitt and Authoritarian Liberalism, 63-70. 272 Schmitt, Constitutional Theory, 81.

Page | 188 Leviathan Run Aground: Chapter 5 appear entirely differently without a word of the text of the constitution having been changed.”273 That is, this office, too, was subject to contingency and the survival of the constitution hinged on the degree to which it had real, concrete defenders. Better to keep enemies out altogether.

As parliament broke down, Schmitt envisaged the role of the Reichspräsident as including the authority to constrain irrationalist movements and preserve the constitution against centrifugal movements like Nazism and Communism – to derail populism, not to represent it. This guardian was to serve as a commissarial dictator, the final bulwark against the total breakdown of order and the eruption of the state of nature. It maintained the Absolute Constitution – the core of the state’s normality – in the face of the disruptive indirect powers. The context in which he advocated the emergency powers of the Reichspräsident was one in which parliament really was divided between plural total movements, some of whom were devoted to the annihilation of the Weimar Constitution. While Schmitt argued for an interpretation of the Reichspräsident’s powers to make decisions, he envisioned them as decisions representing the Absolute Constitution of Weimar and whose legitimacy was so constrained.

Writing in 1914, Schmitt argued, characteristically, “no law can self enforce; there are only men, who can be installed as guardians of the laws and who are wary of guardians themselves, who do not benefit from being installed as guardians.”274 There, Schmitt likens the guardian to Plato’s Philosopher-King or Fichte’s Ephorat, who ensure the state as a whole adhere to Recht.275 He sees this Guardian as a direct power, a vis coactiva, capable of not merely giving moral advice but ensuring the law actually has concrete efficacy. Plato’s hand in the construction of Schmitt’s guardian, and by extension, his understanding of dictatorship, casts this institution in a different light than it normally receives. Dictatorship reflects the rationalistic bent of Schmitt’s state theory: the state and its branches ought to bear substantive rationality and realize the rule of reason concretely. Ready to act in those exceptional circumstances when normal institutions faltered, Schmitt envisaged an ultimate guardian prepared to swoop in from above. It appears as an extension of Schmitt’s theory of the state as an imperium rationis.

Read in the context of his state theory, Schmitt’s theory of dictatorship does not appear to be a (poorly veiled) attempt to smuggle in deformalized law. While clearly still open to abuse, it seems highly unlikely that dictatorship was proto-fascist. Instead, Schmitt's theory is a rather romantic approach to the exercise of power. Yet the consequences of Schmitt’s romantic theory of dictatorship, when anyone who lacks the ideological and rational purity required to fully execute it, are the same as those readings that attribute tyrannical motives to Schmitt. A highly idealized dictatorship is highly vulnerable to abuse. Nevertheless, it is a mistake to attribute corrupt motives to Schmitt for his construction – for the same reason it is a mistake to attribute corrupt motives to Plato for his Republic. Hans Kelsen had it right when he depicted Schmitt’s

273 Schmitt, "Reichspräsident und Weimarer Verfassung," 26-27. 274 Schmitt, Der Wert des Staates, 83 (my translation). 275 Cf. Schmitt, Der Hüter der Verfassung, 7.

Page | 189 Leviathan Run Aground: Chapter 5 theory of the Guardian – of the dictator – as naïve in the power it placed in a virtuous individual to serve as the upholder of Recht in the last instance.276

Conclusion

This chapter investigated three core components of Schmitt’s state theory: state, constitution, and dictator. It showed how Schmitt interpreted these components in light of his concept of decisive status. Schmitt seeks to restore the state’s monopoly over that decisive status because he believes if the state does not do it, factions in society will struggle to assume it. And the outcome of the politicization of society will be civil war. But the positivistic mechanization of the state and relativization of the constitution have led to the very problems of the absence of a decisive political status – of internal factionalism that leads a political community toward the state of nature. This positivistic approach had further negative consequences for the institution of dictatorship. Schmitt opposes this trajectory with his historically rooted counter-interpretation: the state as giant man and mortal god (as well as mechanism), the constitution as Absolute (as well as Relative). The dictator, understood in light of these reinterpretations, had a different constitutional value and purpose than its positivistic interpretation allowed for. This substantive reinterpretation of state and constitution serves as the basis for Schmitt’s reinterpretation of the meaning of the Weimar Constitution itself, discussed in the next chapter.

276 Kelsen, Wer Soll Der Hüter der Verfassung Sein?, 49.

Page | 190 Leviathan Run Aground: Chapter 6

The Absolute Constitution of 20th Century Liberal Democracy: Carl Schmitt and Militant Democracy

In the old Aristotelian three-part classification – monarchy, aristocracy, and democracy –, modern democracy would be unrecognizable. – Carl Schmitt Der Begriff der modernen Demokratie

Political liberalism also supposes that a reasonable comprehensive doctrine does not reject the essentials of a democratic regime. Of course, a society may also contain unreasonable and irrational, and even mad, comprehensive doctrines. In their case the problem is to contain them so that they do not undermine the unity and justice of society. – . Political Liberalism, xviii-xix

Introduction

Schmitt thought the 20th century state’s legitimation crisis was caused in part by an overestimation of the range and meaning of popular sovereignty – democracy’s “triumphal march.” His contemporaries, including Hans Kelsen, Richard Thoma, and Gerhard Anschütz, had argued limitations on democratic amendment procedures, such as those outlined in Article 76 of the Weimar Constitution, were illegitimate. They argued that as long as a democratic majority adhered to procedural constraints, it had the right to do whatever it desired – including revolutionizing and reconstituting the state. Kelsen, in particular, had explicitly defended the unrestricted will of the majority as long as it adhered to established legal procedures. Kelsen defended this type of democratic legitimacy because he believed there was no political basis to determine right beyond majority will. This interpretation led him, along with other Weimar constitutionalists, to conceive of its constitution as nothing more than a collection of individual laws open to infinite amendment.

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Schmitt believed his contemporaries’ fetishization of democracy, understood in the above terms, had blinded them to over two millennia of political science canon. He thought it was absurd to believe 20th century democracy had somehow vanquished tyrannical government.1 Their interpretation of the Weimar Constitution was out of touch with Weimar’s political reality, especially the destabilizing effects of modern mass democracy. And he thought their theoretical interpretation of the constitution had the practical consequence of limiting the state’s ability to respond to radical revolutionary movements, such as the NSDAP and KPD.

But Schmitt was confident it was possible to restore Weimar’s Absolute Constitution. Doing so would empower the state to deal with its insurrectionary parties. And, like Neurath’s ship, he thought Weimar’s constitution could be rebuilt “at sea,” without a revolution, by clarifying the relationship between Weimar's written laws and its deeper political legitimacy. So Schmitt broke it down into its core components to identify its “Absolute” core. Despite his later embrace of Nazism, Schmitt’s late Weimar work opens a window into his constitutional and state theory in which he attempts a robust defense of Weimar’s bourgeois Rechtsstaat in order to deny Weimar’s extremists the means to subvert the state and constitution. In doing so, Schmitt offers a different defense of the liberal democratic state than we are accustomed to think about today. The last chapter has shown Schmitt’s state theory owes large debts to Hobbes and Hegel. This chapter builds on this account further, showing how Schmitt’s state theory includes individual rights, but theorizes and defends them in a way liberals may not recognize. In doing so, he provides an alternative theory of rights in modern states.

Beyond this alternative account of rights in the state, this window shows an alternative way to understand the legitimacy of liberal democratic states today. It provides insight into a constitutional institution today known as “militant” or “streitbar” [constrained] democracy. Militant democracy is a type of liberal democratic constitution that guards against certain forms of popular sovereignty and prevents constitutional suicide. Jan-Werner Müller defines it as a “democratic regime which is willing to adopt pre-emptive, prima facie illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime.”2 Its most well-known mechanisms are the absolute (“eternal”) entrenchment of core constitutional principles, such as basic rights and democracy, against amendment and the use of political bans against certain illiberal and antidemocratic (extremist) parties. Schmitt’s state theory highlights how militant democracy is militant, above all, against unconstrained democratic will-formation, thereby giving political theorists today a different way to approach it.

This chapter outlines Schmitt’s defense of Weimar through his concept of the Absolute Constitution and links it to militant democracy. To do so, it is divided into four sections. The first section situates the discussion by challenging the prevailing interpretation of Schmitt as an

1 Carl Schmitt, "Absolutismus (1926)," in Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916-1969, ed. Günter Maschke (Berlin: Dunker & Humblot, 1995). 2 Jan-Werner Müller, "Militant Democracy," in The Oxford Handbook of Comparative Constitutional Law, ed. Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012), 1253.

Page | 192 Leviathan Run Aground: Chapter 6 overwhelmingly illiberal thinker. The second looks at how Schmitt applied his theory of the Absolute and Relative Constitution to Weimar. It examines Schmitt’s critique of the prevailing interpretation of the Weimar Constitution as above all “democratic” and how he theorized Weimar’s counter-constitution in its liberal basic rights. It argues that, despite the predominance of depictions of him as an illiberal thinker, Schmitt devoted his late Weimar texts to a defense of Weimar’s basic rights and attempted to entrench those rights against democratic revision. The third section looks at additional institutions Schmitt theorized for the sake of defending Weimar’s Absolute Constitution against extremists and relativization, which eventually took effect in Bonn. The final section concludes by looking at how Schmitt offered an early theory of militant democracy with his theory of Weimar’s counter-constitution. It also outlines a normative theory of militant democracy based on Schmitt’s state theory.

1. Carl Schmitt’s “Relentless” Illiberalism

As I argued in Chapter 3, Schmitt was not a democrat but instead was preoccupied above all with the effects of mass democracy on the stability and authority of states. But what of Schmitt’s attitude toward liberalism? As discussed, the reigning interpretation of Schmitt today is that he was the paradigmatic 20th century illiberal – that illiberalism is the defining feature of his thought. He is most often accused of being “relentlessly” illiberal; others dismiss him as, at best, opportunistically or “ironically” liberal.3 His emphasis on the decision and the qualitatively total

3 Jan-Werner Müller, "Carl Schmitt and the Constitution of Europe," Cardozo Law Review 21, no. 5-6 (2000): 1781; Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (New York: Cambridge University Press, 2008), 124; Cf. 114, 182, 127, 141; John P. McCormick, "Fear, Technology, and the State; Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany," Political Theory 22, no. 4 (1994): 644-645, 647; William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 255; Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt, and Franz Neumann (Oxford: Oxford University Press, 2003), 229-231; Duncan Kelly, "Carl Schmitt's Political Theory of Representation," Journal of the History of Ideas 65, no. 1 (2004): 133-134; John P. McCormick, Ca l S m tt’s C t que of Liberalism: Against Politics as Technology (Cambridge: Cambridge University Press, 1997), 5-6; Jürgen Habermas, "Sovereignty and the Führerdemokratie," The Times Literary Supplement, September 26 1986, 1054; Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven: Yale University, 2003), 1ff; Ulrich K. Preuss, "Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution," in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, ed. Michel Rosenfeld (Durham: Duke University Press, 1994), 154; Ellen Kennedy, ""Introduction: Carl Schmitt's Parliamentarismus in Its Historical Context"," in The Crisis of Parliamentary Democracy (Cambridge: The MIT Press, 1988), xxxv-xxxvi; Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge: The MIT Press, 1992), 232, 237-240; Chantal Mouffe, The Return of the Political (Londo: Verso, 1993), 121; Emanuel Richter, "Carl Schmitt: The Defective Guidance for the Critique of Political Liberalism," Cardozo Law Review 21, no. 5-6 (2000): 1631; David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997), 38; John P. McCormick, "Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt's Legality and Legitimacy," in Legality and Legitimacy, ed. Jeffrey Seitzer (Durham: Duke University Press, 2004), xlii; Jeffrey Seitzer, "Carl Schmitt's Internal Critique of

Page | 193 Leviathan Run Aground: Chapter 6 state is believed to totally preclude liberalism. The (incorrect) understanding of him as some sort of democrat has led some to conclude he opposed democratic legitimacy to a morally and politically bankrupt liberalism.

Yet both Nadia Urbinati and Renato Cristi have argued Schmitt was actually deeply ambivalent about liberalism.4 Renato Cristi has argued Schmitt was actually a theorist of “authoritarian liberalism.”5 And, in a claim that seems to agree with the substance of what Urbinati and Cristi argued, Andreas Kalyvas has argued that Schmitt sought to deny constituted powers the ability to amend the “constitution,” which Kalyvas recognizes Schmitt had essentially theorized as inviolable.6 I show how in Weimar’s most desperate moment Schmitt theorized a way to defend “basic liberty rights” from the NSDAP’s and the KPD’s intentions to amend them out of existence. Contemporary discussions of Schmitt largely overlook this defense, perhaps because it fits so poorly with the prevailing interpretation. But if Schmitt did seek to defend the Weimar state because of the legitimacy of basic rights, then interpretations arguing Schmitt was “relentlessly” illiberal will need to be revisited.

As discussed in Chapter 3, Schmitt theorizes liberalism as stemming from a decision for Liberté, a decision for the protection of the private freedom of individual citizens against abuses of state authority and power. Schmitt argues that Liberté leads to two principles of the state: a distributional principle and an organizational principle. Parliamentary democracy is a significant part of how that organizational principle has been translated into state form – historically. But Schmitt emphasizes that the legitimacy of parliamentary democracy, or any state form a “bourgeois Rechtsstaat” takes, is second to its political decision to guarantee a sphere of individual freedom and right against interference from either the state or other individuals. Thus, although parliamentary democracy has succeeded as a state form to concretize this political decision historically, it is neither necessary to guarantee it nor the only way to do so.

Put differently, Schmitt theorizes “liberalism” as two distinct political forms. On the one hand, it describes a positive decision for state form. On the other, it describes the political decision for the state’s content and telos. The former, parliamentary democracy, is merely a means to the latter’s individual protections and freedoms. This distinction is apparent in his 1926 “Introduction” to The Crisis of Parliamentary Democracy but only becomes theoretically explicit in his 1928 Constitutional Theory. There, Schmitt first identifies liberalism as a negative political decision “against” state form, absolutely constraining it with basic rights and the system

Liberal Constitutionalism: Verfassungslehre as a Response to the Weimar State Crisis," [Verfassungslehre.] Canadian Journal of Law and Jurisprudence X, no. 1 (1997): 203-205. 4 Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998), 54-55; Nadia Urbinati, "Schmitt's Critique of Liberalism," Cardozo Law Review 21, no. 5-6 (2000): 1647, 1649. 5 Cristi, Carl Schmitt and Authoritarian Liberalism, 6ff. 6 Kalyvas, Democracy and the Politics of the Extraordinary, 138, 141.

Page | 194 Leviathan Run Aground: Chapter 6 of checks in balances in §§12-16 of Constitutional Theory.7 Any state form is distinct from this “bourgeois Rechtsstaat” component of the constitution.8 And it is only when he turns to state form that parliamentarism comes up, in §§24-28 of Constitutional Theory. Parliamentarism is theorized there as a “public” form of liberalism, concretized through value-neutrality and a constitution’s amendment procedures.9 Because it is merely a procedure, parliamentarism is “indecisive” insofar as that procedure can realize any content. Schmitt described Liberté, on the other hand, as a political-existential decision: a commitment, not a procedure.

The problem of overlooking this distinction (and thus depicting Schmitt as “relentlessly” illiberal because of his criticism of Weimar parliamentarism) becomes apparent when otherwise careful interpretations of Schmitt become incoherent. Peter Caldwell, who provides a fantastic exposition of Schmitt’s Weimar thought, first argues that Schmitt in fact supported basic liberal rights in his writings, but then argues Schmitt opposed parliament and thus liberalism as a whole.10 Similarly, Dyzenhaus notes Schmitt thought liberalism made a substantive political decision when it committed to the protection of basic liberty and private property.11 But he then argues that, in the end, Schmitt thought liberalism was a decision to avoid decisions.12 Kelly, on the other hand, recognizes Schmitt believed parliament could be legitimately representative and produce political unity, but then later argues (citing McCormick) that, as an extension of his illiberalism, Schmitt thought parliament, was “the very violation of [representation and legitimate state form].”13 These thinkers do recognize Schmitt accorded some degree of legitimacy to liberalism, in particular basic liberal rights, but cannot reconcile that recognition with their interpretation of him as fundamentally illiberal. As a result, some of Schmitt's most interesting arguments end up getting throw out.

Schmitt’s open criticism of liberalism as parliamentary democracy has been addressed and questioned by many thinkers, including Caldwell, Dyzenhaus, and Kelly. Indeed, Schmitt had argued that parliament and parliamentary ideals had become unworkable. But, returning to the argument from Chapter 3, Schmitt’s problem was not what we understand to be liberalism, or even parliamentarism per se, but how these institutions had been compromised by modern mass democracy. He believed the crisis of the modern state sprung from the fact that no state could

7 Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham: Duke University Press, 2008), 78, 189. In his discussion of the Weimar Constitution contains here, he distinguishes, among others, between the decisions for “parliament-representative form of legislative authority and government…[and] the bourgeois Rechtsstaat with its principles, fundamental rights, and separation of powers.” 8 Schmitt, Constitutional Theory, 235, 328-331. Schmitt writes the American Revolution had shown the world the purpose the state, the basic decision of a political unity, could be the securing of Basic Rights. Schmitt, Constitutional Theory, 197. 9 Cristi, Carl Schmitt and Authoritarian Liberalism, 173-176. 10 Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory & Practice of Weimar Constitutionalism (Durhan: Duke University Press, 1997), 102-103, 113-114. 11 David Dyzenhaus, ""Now the Machine Runs Itself": Carl Schmitt on Hobbes and Kelsen," Cardozo Law Review 16(1994-1995): 5, 12, 13. 12 Dyzenhaus, ""Now the Machine Runs Itself"," 1, 13ff. 13 Kelly, "Carl Schmitt's Political Theory of Representation," 133-134.

Page | 195 Leviathan Run Aground: Chapter 6 realize a mass democracy. Because his interpreters have for the most part not recognized the nuances of Schmitt’s theorization of liberalism, they have read his critique of Weimar’s dysfunctional parliament as a blanket rejection of all principles associated with liberalism today, including Basic Rights. But this is a mistake. In fact, Schmitt explicitly insisted that Second Principal Part of the Weimar Constitution (The Basic Rights and Duties of Germans) be treated as the existential decision of Weimar and thus serve as the basis for the substantive constitutional order of the Weimar State. In other words, Schmitt argued the liberal, “bourgeois” Rechtsstaat principles outlined in the second section of his Constitutional Theory, i.e. individual basic rights, were first a legitimate existential, political decision and second the means to legitimately overcome the crisis of the modern state. In making this argument, Schmitt turns out to have provided a novel defense of basic individual rights against the state – and against the tyranny of modern mass democracy.

2. Weimar’s Constitution and Counter-Constitution

Reflecting back on his late Weimar writings in 1958, Schmitt argued he sought to resolve the constitution from its internal contradictions. The contradiction between its First and Second Principal Parts was by far the most significant.14 He described how the Second Principal Part of the Weimar Constitution was actually a counter-constitution opposed to the First Principal Part. This tension was between the design of Weimar’s constituted powers and its ‘basic rights and duties,’ between Weimar’s “functionalist value-neutrality,” with its “fiction of indiscriminate equal chance,” and its “substantive system of meaning.”15 The contradiction amounted to a question of which part of the constitution was superior to, and therefore trumped, the other when they conflicted. Could popular sovereignty do away with the bourgeois Rechtsstaat? Or do the principles of the bourgeois Rechtsstaat absolutely limit popular sovereignty? While these two parts could and did unproblematically coexist with one another in normal times, they were logical opposed and could clash during the constitution’s existentially most important moments. That is, there are exceptional moments in which democracy and Rechtsstaat principles clash.

14 The other two contradictions were each limited to one part of the constitution. The contradiction in the Second Principal Part was that it contained a myriad of rights so far ranging that there was no clear core. I discuss this further below. In the first part, however, he points to the contradiction between parliamentary and plebiscitary democracy. His argument here, which I touch upon in Chapter 3 indirectly, is that in plebiscitary democratic referenda of any type only lead to a more immediate, more irrational, more emotional democratic expression than the already deeply problematic expressions in parliament. Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004), 60-64. Plebiscitary democracy, in other words, was not Schmitt’s ideal – it was merely a more problematic version of everything already wrong with 20th century mass democracy. He goes on to argue that, for these reasons, it is extremely dangerous as an extraordinary lawmaker. Schmitt, Legality and Legitimacy, 91. Moreover, as I discuss below, Schmitt seems relieved that the Bonn Grundgesetz does away with popular referendum. 15 Schmitt, Legality and Legitimacy, 93-94.

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And such clashes demanded a decision on which part ought to have lexical priority over the other.16 In other words, a decision on which principle “trumped” the other.

For Schmitt’s discussion of liberalism, the question of parliamentary democracy, or even plebiscitary democracy, versus the bourgeois Rechtsstaat amounted to a dilemma over the two forms of liberalism he conceptualized. The priority of democracy over basic rights meant Weimar’s liberalism would be a seemingly paradoxical decision for liberalism as formalized indecision, concretized through procedures. It was a decision for a formal procedure, but one without any definite existential content. The priority of the principles of the bourgeois Rechtsstaat, on the other hand, would be a decision for a specific (liberal) form of existence. Schmitt thought the former was relativistic, its legitimacy rested on positive democratic proceduralism. He thought the latter was substantive, its legitimacy rested on the basic commitment to individual liberty. This dilemma between democracy and the Rechtsstaat, between an indecisive liberalism and a political liberalism, will turn out to map onto Schmitt’s discussion of Constitutional Relativization. a. The Prevailing Interpretation: Democratic Value-Neutrality and the Relativized Constitution

Schmitt argued the prevailing interpretation of the Weimar Constitution, exemplified in the work of constitutional theorists, such as Kelsen, Thoma, and Anschütz, seized the first horn of that dilemma.17 Because the decision-making procedures of parliamentary democracy trumped all other articles of the constitution, these thinkers had interpreted the Weimar Constitution above all as a decision for democratic value-neutrality and legal change.18 Their interpretation was for a second-order decision against deciding; in other words, it was a decision for a form of democracy where the seat of power was left empty and undefined. Schmitt argued, then, that Weimar’s leading constitutional lawyers were ultimately committed above all to democracy, which in constitutional terms meant its formal democratic amendment procedures.

Schmitt describes the prevailing interpretation as “functionalist value-neutrality,” by which he means it interprets the constitution and legislation as open to any political goal or aspiration that adheres to the legal procedures in effect.19 He writes, “in the dominant “traditional” theory, no parties, aspirations, organizations, and associations can be illegal because of their goals or the content of their goals.”20 The assertion that political legitimacy boils down to legality – democratic legitimation – is a by-product of a positivist Weltanschauung. He argues that, for the prevailing interpretation, value-neutral legislation produces legitimate law, whatever its content, just as value-neutral elections produce a legitimate governing body, whatever its content.21 The

16 Schmitt, Legality and Legitimacy, 46-47, 50. 17 Dyzenhaus, ""Now the Machine Runs Itself"," 8. 18 Schmitt, Legality and Legitimacy, 47-48; cf. Otto Kirchheimer, "Remarks on Legality and Legitimacy," in The Rule of Law under Siege, ed. William E. Scheuerman (Berkeley: University of California Press, 1996), 77, 94-95. 19 Schmitt, Legality and Legitimacy, 10, 48-49. 20 Schmitt, Legality and Legitimacy, 49. 21 Schmitt, Legality and Legitimacy, 20, 21.

Page | 197 Leviathan Run Aground: Chapter 6 ideal of value-neutrality is institutionalized by the principle of equal chance. It presupposes any group within a political community that wishes to obtain political power should have the possibility to do so as long as they adhere to whatever legal procedures for doing so are in effect. It entails guaranteed political rights, including the possibility to amend the constitution to realize any values.22

Chapter 5 argued that functionalist value-neutrality, institutionalized by equal chance, served as the core of Schmitt’s theory of the Relatived Constitution. And the legitimacy of the Relative Constitution comes from the same principles that make positive law legitimate: adhering to proper procedures to enact law (in this case, constitutional law) yields legitimate law. In the case of Weimar, the prevailing (Relative Constitutional) interpretation centered on Article 76.1, which came out of the First Principle Part of the Weimar Constitution, its organizational component. Article 76.1 reads:

The Constitution can be amended via legislation. However, a decision of the Reichstag regarding the amendment of the Constitution only takes effect when two-thirds of those present consent. Decisions of the Reichsrat regarding amendment of the Constitution also require a two-thirds majority of the votes cast. If a constitutional amendment is concluded by initiative in response to a referendum, then the consent of the majority of enfranchised voters is required.23

For Schmitt, especially the first sentence of 76.1, which lacks any qualification regarding limits to amending the constitution, shows how the Relative Constitution, democratic value-neutrality, equal chance, and openness to all procedurally-valid constitutional amendments are interrelated. For value-neutrality to have any meaning, no ideology can be prevented from having the opportunity to compete for political office. An extension of this equal chance is that any and all beliefs must have the possibility to be enacted constitutionally. Because no aspects of the constitution can be beyond the reach of the amendment process, the constitution must be theoretically treated as a collection of individual laws – at most more difficult to amend than other non-constitutional laws.

Schmitt argues that, although the prevailing interpretation understands the constitution as decisionless, this is not exactly the case.24 Although they do not expressly acknowledge it, they believe that this type of constitution is more than mere domination and is legitimate on some “lower level.”25 It goes beyond being a modus vivendi to an overlapping consensus. Accordingly, even a positivistic and value-neutral constitution moves beyond being merely a collection of laws. Schmitt argues the Relative Constitution actually does make a political decision, just a weak one: its status is defined by its amendment procedure. As long as a party adheres to whatever constraints of legality are in effect when it seeks to obtain and exercise political power,

22 Schmitt, Legality and Legitimacy, 28. 23 Schmitt, Constitutional Theory, 421. 24 Schmitt, Legality and Legitimacy, 29. 25 Schmitt, Legality and Legitimacy, 41-42.

Page | 198 Leviathan Run Aground: Chapter 6 then it can be understood to be a “Friend” of the constitution. Tyranny and enmity in a system of “functionalist value-neutrality” is the violation of whatever positive law there is, especially the second-order legislation governing the legislative process itself. It is a weak decision because it admits revolution of that decision to be legitimate as long as the revolutionaries abide by the enacted procedures. Yet, because there is this basis to determine political legitimacy, Schmitt argues even the Relative Constitution contains a political decision.26

So although the Relative Constitution’s decision is a passive one, Schmitt believes it still decides on a status. And, Schmitt believes, appearances aside, no constitution, not even a Relativized Constitution, can be totally neutral toward itself.27 It does not intend for its substantive elimination. So Schmitt argues that even proponents of value-neutrality implicitly make this argument: they believe democratic elections and amendment procedures are themselves values worth perpetuating and should continue to define a community’s legitimate political relationships – this constitution was not instituted to be an ephemeral constitution that merely stands in until a prevailing majority replaces it with a radically different constitution.28 Proponents of the prevailing interpretation intend for democratic procedures to persist over time. It was on this basis that Kelsen, for example, argued commitment to value-neutrality and democratic principles means one must allow committed antidemocrats, such as Nazis, to have the possibility to revolutionize the state and constitution – to do otherwise, for him, meant abandoning his substantive commitments.29

Was Schmitt’s characterization of Weimar’s leading constitutional theorists accurate? Were they actually committed to functionalist value-neutrality above all else, i.e. the legitimacy of unlimited democratic emendation of the constitution according to the terms laid out in Article 76? Were they actually committed to something like the Relative Constitution?

Kelsen certainly held this view. As discussed in Chapters 1 and 2, Kelsen himself acknowledge that he was above all committed to a positive weltanschauung and that this meant the legitimacy of democratic relativism, the politicized theology of atheism. But Schmitt is primarily in dialogue with Thoma and Anschütz in his discussion of Article 76, even if Kelsen looms in the background. He had public engagements with both, especially Thoma, and was on good enough terms with both to be offered the opportunity to contribute to their then seminal volume Handbuch des deutschen Staatsrechts.30 So circumstantial evidence suggests Schmitt fairly represented their positions.

26 Schmitt, Constitutional Theory, 74ff. 27 Schmitt, Legality and Legitimacy, 27; Cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 2. 28 Schmitt, Legality and Legitimacy, 58. 29 Kelsen, Hans. Die Verteidigung der Demokratie (1932), Cited in Arthur J. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2002), 74. 30 Schmitt contributed an article on his interpretation of the Second Principal Part of the Weimar Constitution. “Inhalts und Bedeutung des zweiten Haupteils der Reichsverfassung.”

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And, in turning to the substance of what they wrote, Schmitt’s representation of Thoma and Anschütz holds. Like Kelsen, both Thoma and Anschütz were leading representatives of legal positivism. So, already implied in their legal theory is a commitment to that value-relativism. Anschütz was explicitly critical of Schmitt’s argument to restrict the range of constitutional amendment through Article 76. “Democracy” ought to prevail, he argued, no matter the content of the people’s beliefs.31 He argued that, now that Germany has participated in democracy’s “triumphal march,” it meant the supremacy of democracy above all other facets of the state.32 In other words, Weimar democracy meant the supremacy of the will and wish of the people, expressed through positive legislation.33

Similarly to Anschütz and Kelsen, Thoma believed “the right of the Reichstag to amend the Constitution through a two-thirds vote was in theory unlimited. This idea of free, democratic self-determination, he argued, was “daring, perhaps, but sublime in its logical consistency.””34 There was no authority beyond popular will. Thoma’s position was adopted in explicit opposition to Schmitt and Bilfinger’s argument for limits on the range of Article 76 democratic amendment powers. He wrote, “from the standpoint of democracy and liberalism, from which interpretation must begin, it would be impossible to evaluate what the resolute and undoubted majority of the people wills and decides in a legal way as a coup d’état or rebellion, even if it subverts the basic pillars of the present Constitution!” Here too one sees the belief that any constitutional change is legitimate as long as it abides by the procedures in effect – even if it appears to be something illegitimate like a “coup d’état.” Thoma seemed to understand rule as either democratic, in which a majority might occasionally “offend some interest and quash some contrary opinions” (tyrannize) a minority, or authoritarian, in which a minority “rules definitively.”35

Schmitt was not manufacturing straw men in describing Weimar liberal democrats as he did.36 Weimar’s leading constitutional theorists believed in the supremacy of the democratic procedures of the First Principal Part of the Weimar Constitution, including the possibility for total legal democratic constitutional abrogation through Article 76. They believed that, no matter the substantive content sought through democratic procedures, the procedures themselves made them legitimate. And the (bourgeois Rechtsstaat) ideal of basic rights was no barrier to such changes. Schmitt describes this position as functionalist value-neutrality. It is value-neutral because it makes no attempt to evaluate the legitimacy or illegitimacy of a popular, democratic will. Thus, it implicitly but clearly denies that there can be a tyrannical majority: the will of the

31 Walter Pauly, "Introduction to Gerhard Anschütz," in Weimar: A Jurisprudence of Crisis, ed. Arthur J. Jacobson and Bernhard Schlink (Berkeley: University of California Press, 2002), 129. 32 Gerhard Anschütz, "Three Guiding Principles of the Weimar Constitution (1922)," ibid., 144. 33 Anschütz, "Three Guiding Principles of the Weimar Constitution (1922)," 147. 34 Peter C. Caldwell, "Introduction to Richard Thoma," ibid., 153; Cf.Richard Thoma, "The Reich as Democracy," ibid., 159, 164. 35 Thoma, "The Reich as Democracy," 170. 36 Cf.Müller, "Militant Democracy," 3-4.

Page | 200 Leviathan Run Aground: Chapter 6 people is always legitimate. It is functionalist because of its commitment to procedure. Legitimacy is evaluated not by normative standards per se but adherence to procedure – but a procedure that is, in the end, as plastic as democratic will. b. Schmitt’s Critique of Weimar’s “Functionalist Value-Neutrality”

Whatever reasonable intentions it may have had, Schmitt thought the theoretical aspiration to seize the first horn of the dilemma and treat liberalism democracy as institutionalizing permanent indecision was impractical and even foolish. Functionalist value-neutrality and equal chance could not realize political stability nor could they generate an overlapping consensus in mass democracy. In Legality and Legitimacy, Schmitt “uncharacteristically” quotes a large passage from his Der Hüter der Verfassung to emphasize how serious a problem he believes this interpretation is.37 There he argues the dominant interpretation of Article 76 makes it into an amendment procedure indifferent toward every content, which deprives the constitution of all political substance. He warns it can be used to bring about any constitutional order oriented by any values – ranging from a Soviet Republic to a National Socialist Reich to a revived German monarchy. He is alarmed that any attempt to defend the state as a bourgeois Rechtsstaat from this sort of constitutional revolution is dismissed as “crude and enraging” by both proponents of the prevailing interpretation as well as by those antidemocratic parties and movements that stand to gain from it. And no matter the intention of its proponents, their uncompromising commitment to functionalist value-neutrality actually empowered movements and parties who would abuse it to enact a constitution hostile to democracy.

But, Schmitt argues, those who defend the legitimacy of the prevailing interpretation are not always truly committed to it. He thinks many of its defenders would concede that, should 75% (or a higher percentage, even) of a population elect an antidemocratic, illiberal, racist party, that party would nevertheless not be a legitimate ruler and neither would its subsequent abrogation of democracy and liberalism – even if it adhered to the functionalist constrains of Weimar’s amendment procedures.38 When they insist, for example, that functionalist value-neutrality does not include value-neutrality itself, he thinks their constitutional theory becomes disingenuous. They have only superficially disagreed with him. For example, Schmitt writes that Thoma eventually admits Schmitt’s arguments to limit Article 76 were legitimate when an illiberal and antidemocratic party reaches the democratic threshold necessary to pass constitutional amendments.39 But he does not reconcile this with his insistence on the unlimited legitimacy of

37 Cf. Schmitt, Legality and Legitimacy, 95. 38 Schmitt, Legality and Legitimacy, 48. 39 cf. Schmitt, Legality and Legitimacy, 47-48. Others do too. Most notably, Kirchheimer, in his critique of Schmitt, argues there are limits to constitutional amendment. He just concludes that it is different than Schmitt’s “basic liberty rights.” He does not seem to be aware of Schmitt’s criticism of the incoherence of grounding a constitutional decision in political rights. Kirchheimer, "Remarks on Legality and Legitimacy," 75-76. The language of Schmitt’s “opponents” betrays their uncomfortable relationship with the consequences of functionalist democracy: it is peculiar that someone who believes a legitimate democratic decision has been made would simultaneously describe having to stick with the consequences as “going down with the ship.”

Page | 201 Leviathan Run Aground: Chapter 6 democratic revisions through Article 76 (thus, arguing democratic constitutional change is always legitimate – as long as it produces a democratic constitution). In such cases, Schmitt believes the commitment to democratic value-neutrality of the Weimar Constitution is only a superficial decision that stands on a more fundamental decision for an Absolute Constitution. In the end, Schmitt argues that, even though they do not admit it, many ostensive proponents of the prevailing interpretation actually share his interpretation: that Article 76 ought to be limited for the sake of preserving the actual core of Weimar’s “Absolute” constitution.

But Schmitt recognizes there are defenders of the prevailing interpretation who do fully commit to the ideal of value-neutrality. These defenders hold that amendments to any articles or aspects of the constitution, including to democratic amendment procedures themselves, are legitimate no matter how illegitimate they may appear. Thus, they would argue for example that, as long as a party legally adheres to the procedures necessary to amend all democracy and rights out of a constitution and replace them with a fascist state, it is politically legitimate. But in this case, he argues, the theoretical commitments of the prevailing interpretation clearly undermine the constitution itself; this constitution does not even try to preserve itself.40 And if Weimar’s Article 76 amendment procedure can be turned on itself, then not even Article 76 can be said to be constitutive of the Weimar Constitution. Its problem is that this is a self-undermining value commitment. Committing to it means one cannot commit to it as an Absolute Constitution – it is merely a placeholder. In the end, it too is theorized as nothing more than an accidental principle of the constitution. But, Schmitt questions, if the amendment principles (Article 76) too are merely accidental, why do defenders of the prevailing interpretation care if it is limited? The answer lies in the defenders’ positivistic worldview. And Schmitt thinks it is too dangerous to treat positivism as the basic existential decision of the constitution because its internal inconsistencies have such clear and problematic practical outcomes for its own admitted goals and values.41 A Relative Constitution must admit that “any goal, however revolutionary or reactionary, disruptive, hostile to the state or to Germany or even godless, is permitted and may not be robbed of the chance to be obtained via legal means.”42 He believes defending this interpretation of the Weimar Constitution is the pinnacle of political irresponsibility when private, indirect powers utilize powerful psycho-technical means to manipulate the masses and “democratically” legitimate their interests. Positivism and functionalist value-neutrality cannot serve as a stable political basis for the state. Positivistic “technicity” merely masks the illegitimate political domination those private powers exercise over the state as a whole.

Like Kierkegaard’s aesthete, Schmitt thinks the positivist’s refusal to decide – the adoption of a Relativized Constitution premised on indecision – does not actually suspend the decision. It instead relegates agency to external factors, in effect granting it to those willing to decide and act.

40 Schmitt, Legality and Legitimacy, 29; Schmitt, Constitutional Theory, 76. The core right of any being, including the Staatsperson, and the basis for the validity of any political order being in suo essere perseverare. 41 Schmitt, Legality and Legitimacy, 29. 42 Schmitt, Legality and Legitimacy, 48, cf. 10, 46.

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Indecision is still a decision. It is in a way a second-order decision against deciding. A decision to be passive. Although committing to an amendment procedure may appear to be different from a refusal to decide at all, its lack of commitment to any definite content or values (what Schmitt would call its aestheticism) has the same result. As a Relativized Constitution, it can offer no political status; proceduralism relativizes itself.43 By constituting the state around functionalist value-neutrality, the prevailing interpretation contributes to the mechanization of the state, casting aside its authority and opening it up to violent factionalism. A mechanized state is a state only for accidental, contingent reasons.

Schmitt argues the prevailing interpretation, by denying it any clear and fixed content, mechanized the Weimar state and relativized its constitution. He thinks it mistakes the organization of the state for its purpose or telos. Democracy and functionalist value-neutrality were merely means to realize that value. And no matter how ideal those means were for realizing it, the legitimacy of democracy should hinge on that end. Schmitt thus believed the prevailing interpretation of the Weimar Constitution embodied the rationalization and disenchantment of his time. But, he argued, no matter what his opponents argued, legitimacy and right could not rest on whichever positive laws a majority happened to have passed or declined to amend at a particular moment in time.44 But Schmitt thought a democratic bourgeois Rechtsstaat could still commit to a definite political status.45 His theory of Weimar’s Absolute Counter-Constitution aimed to show this by “struggling against a destructive use of the state and the Constitution, against a functionalism that was neutral with respect to truth and values.”46 c. The Counter-Constitution: Basic Rights and Politically Decisive Liberalism

Schmitt described his 1932 Legality and Legitimacy as a despairing attempt to defend the Weimar Constitution “from a form of jurisprudence that refused to pose the question of the friend and enemy of the constitution.”47 At the time, his critics vehemently rejected his attempt, criticizing his main argument, “that the legality of a party can only be denied when the authority to make constitutional amendments is limited,” as “fantasy law.”48 Specifically, it was his efforts to find a way to limit the range of the application of Article 76 that they found to be fantastic. And Schmitt provided reasons to limit Article 76; dismissing his argument as fantasy law avoids engaging with the tensions between democracy and basic rights.

The question of party legality followed from Schmitt’s discussion of the nature and limits of the use of Article 76. It was on the basis of the constitution’s inviolable core that a party’s legality could be assessed and the Weimar state could be defended against insurrectionary movements.

43 Schmitt, Legality and Legitimacy, 27; Cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 2. 44 Schmitt, Legality and Legitimacy, 42. 45 Schmitt, Legality and Legitimacy, 46, cf. 57-58. 46 Paul Noack, Carl Schmitt: Eine Biographie (Frankfurt: Propylaen, 1993). Cited from Cristi, Carl Schmitt and Authoritarian Liberalism, 36-37. 47 Schmitt, Legality and Legitimacy, 95. 48 Schmitt, Legality and Legitimacy, 95.

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Schmitt believed the basis for limiting the use of Article 76 came out of his theory of the Absolute Constitution. If Weimar could be shown to have an Absolute Constitution, this would restrict the range of Article 76 and certain acts would no longer be constitutional amendments but illegal revolutionary acts.

Schmitt argued one did not need to go far to find a basis for Weimar’s Absolute Constitution. He believed it already existed as the Second Principal Part of the Weimar Constitution: “The Basic Rights and Duties of Germans.”49 In a way that reproduces key components of his definition of the Absolute Constitution, he writes “the declaration of basic rights means the establishment of principles on which the political unity of the people rests and whose validity is recognized as the most important presupposition of the fact that this unity always produces and forms itself anew. It also means that the integration of the state unity occurs.”50 He goes on to argue that the articles of the Second Principle Part of the Weimar Constitution “contain a comprehensive political decision of the German people concerning the type of their existence and they provide the German Reich in its present form the character of a constitutional democracy. In other words, it is a constitutional state [Rechtsstaat] resting on democratic principles, yet one that is modified by the principles of the bourgeois Rechtsstaat.”51 So Schmitt explicitly argues liberal basic rights can be a political decision.52 Were they taken to be the political status of Weimar, he believes no legislation to alter Weimar’s Absolute Constitution in any way – no matter how procedurally correct or democratically “legitimated” – could be substantively legitimate.53

Thus, Schmitt thought basic rights could be interpreted to be the existential core of the Weimar Constitution and used to define the identity and status of the Weimar state and the German people.54 And his arguments for the priority of basic rights did not just apply to the Weimar Constitution; they could defend basic rights as the Absolute Constitution of any liberal democratic state, which would set limits to the range of amendment procedures.

So, as Weimar stood on the brink of collapse in 1932, Schmitt argued the basic rights of the Second Principal Part of the constitution were “undoubtedly” “reasonable and justified” guarantees to oppose to the “empty value-neutrality” of the First Principal Part, to positive, functionalist democracy.55 Schmitt argues his interpretation would provide clarity about when parties were a political threat to Weimar, determined by whether their political goals were inimical to basic rights.56 And in a very disarming passage,57 Schmitt argues, were they interpreted as the Absolute Constitution, basic rights would be dictator-proof.58

49 Schmitt, Constitutional Theory, 201-202, cf. 167-252; Schmitt, Legality and Legitimacy, 42, 53. 50 Schmitt, Constitutional Theory, 200. 51 Schmitt, Constitutional Theory, 201-202. 52 Schmitt, Constitutional Theory, 169, 170, 171. 53 Schmitt, Constitutional Theory, 170, 197; Schmitt, Legality and Legitimacy, 57. 54 Schmitt, Constitutional Theory, 90, 156. 55 Schmitt, Legality and Legitimacy, 42, 45, 46, 51; Cf. Cristi, Carl Schmitt and Authoritarian Liberalism, 4. 56 Schmitt, Legality and Legitimacy, 49.

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Yet, Schmitt wrote that, although the bourgeois Rechtsstaat was a substantive basis for political unity, it was still only a negative decision. It did not define Weimar’s state form (whether the state is, for example, a monarchy or democracy). A political decision for the basic rights of the bourgeois Rechtsstaat did not preclude parliamentary democracy. Advocating for the priority of the basic rights in the Second Principal Part of the Weimar Constitution did not mean jettisoning democracy.59 It meant that when democracy and basic rights conflict with one another, basic rights have lexical priority over democracy.60 This is, after all, what it means to have rights. It is only when positive law proceduralism and democratic value-neutrality become instruments of revolutionary change that Schmitt thinks they become illegitimate. The shift to revolutionary acts is defined by the content of the Absolute Constitution. In the case of Weimar, revolutionary acts included Article 76 amendments that would seek to alter or suspend its political status by amending its “sacred” value commitment to basic rights – even if such acts have the requisite majority to be legally enacted.61

In sum, Schmitt thought basic rights should trump democratic procedures in a bourgeois Rechtsstaat Constitution. And it should be emphasized that Schmitt opposes plebiscitary as well as parliamentary democracy when he elevates the core principles of the Second Principal Part of the Weimar Constitution above its Article 76 amendment procedures. As discussed in Chapter 3, Schmitt believes plebiscitary democracy only exacerbates the functionalist value-neutrality of Weimar’s parliamentary democracy. He believes the will expressed by a plebiscite is as irrational, unstable, and manipulable as that expressed by parliament. And he objects to the lower threshold Article 76 accorded plebiscitary democracy, which allowed popular referendums to pass constitutional amendments by a simple majority, bypassing the 67% parliamentary threshold. Schmitt seems flabbergasted by this discrepancy: why on earth would one settle for a 51% threshold from “a people who bursts onto the scene in its complete, though incommunicative, directness, and emotionality” when one requires a higher threshold from parliament, an institution with no less constitutional legitimacy?62 He answers there is “no compelling reason” why plebiscitary democracy should have any greater latitude in amending the constitution than parliamentary democracy. He concludes “the constitution undoubtedly did not intend this.” Weimar’s Absolute Constitution, located in its Second Principal Part, represented the fountain of the state’s political legitimacy and was the source of its authority and stood above its democratic state form, both plebiscitary and parliamentary.

57 Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle, trans. Michael Hoelzl and Graham Ward (London: Polity, 2013), 175f; Carl Schmitt, "The Dictatorship of the Reich President According to Art 48 of the Reich Constitution (1931)," Constellations 18, no. 3 (2011): 313. 58 Schmitt, Legality and Legitimacy, 77. 59 Cristi, Carl Schmitt and Authoritarian Liberalism, 13ff. 60 Schmitt, Constitutional Theory, 93, 202, 235. And he argues that, just as the unconditional acceptance of democratic value-neutrality leads to the disrecognition of guarantees of substantive basic rights values when the two conflict, so too does even the slightest skepticism of democracy’s unconditional validity lead one to seek to embed those guarantees Schmitt, Legality and Legitimacy, 78. 61 Schmitt, Legality and Legitimacy, 48-49, 53. 62 Schmitt, Legality and Legitimacy, 64.

Page | 205 Leviathan Run Aground: Chapter 6 d. Schmitt’s Rights Typology

But Weimar’s Second Principal Part contained a vast array of rights, ranging from basic individual liberties to economic rights to religious and educational freedoms to rights of the civil service and it is not immediately clear which rights should serve as Weimar’s Absolute Constitution.63 Schmitt was not unaware that the Second Principal Part of the Weimar Constitution was overflowing with rights. In fact, he argued that because Preuß’ constitution had been diluted by subsequent additions of rights, the bourgeois Rechtsstaat core of the Weimar Constitution was not immediately apparent.64

Schmitt distinguished Weimar’s Absolute Constitution by looking at Preuß’ original draft. He argued Weimar’s Absolute Constitution should be the “Basic Liberty Rights of the bourgeois Rechtsstaat” along with guarantees of private property.65 He provides a rights typology66:

63 I am indebted to David Dyzenhaus for bringing this to my attention and urging me to resolve it. 64 Schmitt, Legality and Legitimacy, 50; Cf. Schmitt, Constitutional Theory, 203ff. 65 Schmitt, Constitutional Theory, 332; Schmitt, Legality and Legitimacy, 79. 66 Schmitt, Constitutional Theory, 209.

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Schmitt believes for a right to be classified as a basic liberty right, it must be conceived of as an individual right against the state.67 It must be something that defends an individual’s private life against public interference. This definition excludes “political status rights,” such as the right to vote and equal chance (the third column). It also excludes “rights to state services,” such as the right to work (the fourth column). Schmitt argues that both these set of rights are rights to the state. Schmitt is emphatic that rights like that of civil servants to their papers (Article 129) are qualitatively different from basic rights like freedom of the person (Article 114).68 This distinction does not deny the legal validity of these rights. Like with democratic amendments and positive legality, Schmitt’s distinction only denies that they are part of Weimar’s existential core, its political status. Schmitt thus argues they are distinct from basic rights, they are subordinate to basic rights, and they are not protected like those basic rights are. They not a part of Weimar’s Absolute Constitution.

Basic rights are those rights described in the first two columns in the Schmitt’s chart. He argued that the “rights of the isolated individual” from the first column, which included freedom of conscience and rights to private property, were unambiguously guaranteed as basic rights. Those rights in the second column, “rights of individuals in connection with other individuals,” are a grey area in his typology. Schmitt believes they “must be considered genuine basic rights as long as the individual does not leave the nonpolitical condition of mere social relations and so long as only the free competition and the free discussion of the individual is recognized.”69 Because these rights can be the means for society to politicize, i.e. they could be exploited by disingenuous groups to act violently against the status or other social groups, Schmitt believes they must be guaranteed but their use must be guarded over.70 Ambiguity over what he means exactly is obviously problematic – but Schmitt leaves us little to go off. The state’s duty, it seems, is to monitor when these individual associative rights make two leaps: from social to political and from an individual right to a group right. If both leaps occur, then Schmitt believes the state must take steps to depoliticize their use.

Because the state has the authority to decide what constitutes politicization and how to respond, Schmitt’s guarantee of social rights does directly empower the state with alarming discretionary powers. Schmitt’s focus seems to be on the logical coherence of the constitution itself and not the potential abuse of the constitution by its representatives. Most problematically, Schmitt trashes the right to equality before the law (Article 109). He categorizes it as a political right, rather than a right of the individual. It is difficult to make sense of this decision, since it is obviously the right of an individual against the state – moreover, equality before the law need not apply to citizens at all. A charitable reading could argue he did so because Article 109 includes other rights related to citizenship – but even so, his argument is obviously wrong. It is difficult to

67 Schmitt, Constitutional Theory, 203-209, 218. 68 Schmitt, Legality and Legitimacy, 79. 69 Schmitt, Constitutional Theory, 203. 70 Schmitt, Constitutional Theory, 204.

Page | 207 Leviathan Run Aground: Chapter 6 see how equality before the law either can be used to undermine the Absolute Constitution. Moreover, it is no clear how it is a right “to” the state rather than against the state’s interference. Equality before the law protects isolated individuals against the power of the state and, under Schmitt’s own rubric, clearly should have been classified as a basic right.

3. Defending the Absolute Constitution of the bourgeois Rechtsstaat

Besides the threat posed by democratic value-neutrality, Schmitt discusses several other threats to the state and constitution and offers institutional solutions to them stemming from his theory of Weimar’s Absolute Constitution. Aside from the absolute entrenchment of basic liberty rights and the empowerment of a “guardian” to take action in cases of parliamentary failure and emergencies (as discussed in Chapter 5), his solutions included bans against unconstitutional parties, legal constraints on “negative” majorities, and a stronger federation of the Weimar state. a. Limitations on Negative Majorities

Parties too weak to enact laws still had power. By always opposing the majority and coordinating their actions with other minority parties, weak parties could undermine parliament’s functionality even in normal times. In his Constitutional Theory, Schmitt warned about the potential of “negative” majorities of unconstitutional parties to sow the seeds for revolution by rendering parliament impotent and making it look incompetent. Recognizing their potential there, Schmitt theorized a way to prevent them from undermining the state. Schmitt calls cases like this merely an “accidental” majority and writes it is “in most cases useless logically, juristically, and politically” because it only aimed at debilitating the state. Specifically, when a majority of Reichstag members aimed not to govern but to demonstrate how the Reichstag and the democratic state were political failures (which the communists and Nazis actually did later cooperate in doing in Weimar), value-neutrality and political rights like equal chance empowered them to do so.

Schmitt realized that Article 54’s no-confidence vote to dissolve the Reichsregierung was a powerful tool in the hands of unconstitutional parties when they were strong enough to act as negative majorities. He warned that Article 54 could be used to empower a (negative) majority in the Reichstag to oppose the Reichsregierung on political grounds and make legislation impossible and even topple the government.71 For example, the KPD and NSDAP opposed every Reichsregierung because they rejected the constitution itself. When they dominated the Reichstag, they forced the Reichspräsident to decide between two equally undesirable and destabilizing options: to dissolve the Reichstag using Article 25 (and hope reelections would produce a majority actually interested in governing) or allow the Reichsregierung to be dissolved. Neither option would yield a working legislative body in Weimar.

71 Schmitt, Constitutional Theory, 364.

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Schmitt wrote the problem was there was nothing in the use of Article 54 to guarantee a majority was “positive” and would actually govern.72 A majority of the Reichstag might be able to take down the Reichsregierung and stall the Reichstag but, because they were substantively heterogeneous, offer up no functional alternative. For Schmitt, negative majorities were another symptom of the quantitatively total state: too weak to govern by themselves but strong or reckless enough to impede others.73 Without seeking a positive majority to replace the government the Reichstag had just expressed its lack of confidence in, Article 54 becomes “an act of pure obstruction.”74 In those cases, Schmitt argues, there is no duty to resign, even; the government need not recognize a vote of no confidence by a majority unable to organize a stable new government.75 His point is that Article 54 like Article 76 could be (and later was) instrumentalized by democratically legitimated parties in their goal of thwarting and overthrowing democracy itself. b. Bans on Unconstitutional Parties

Stemming from his arguments that political rights are distinct from basic rights and therefore do not hold absolutely, Schmitt argues that the very presence of parties deeply opposed to the core commitments of the Weimar Constitution in the Reichstag could be a threat to the Weimar state. They could use the power of public office to further their revolutionary goals by actually thwarting effective governance. But beyond blocking parliament, they could also use the veneer of holding public office and their privileged access to public opinion to shroud and “legitimate” their ideals, thereby broadening their base. As described in the above table, Schmitt argued political rights, such as equal access to public office, are qualitatively different from and subordinate to basic liberty rights. Political rights, while important, are not a part of the Absolute Constitution. By conceiving of political rights in these terms, Schmitt believed Weimar had a means to weaken the power of potential revolutionary parties: if individuals or groups exploited political rights to undermine basic liberty rights, their political rights can be legitimately limited.76 As an example, Schmitt discusses the opposition of both the KPD and NSDAP to Weimar’s basic rights and its bourgeois Rechtsstaat.77 Because of the incoherence between their political goals and Weimar’s Absolute Constitution, Schmitt argues they ought to be denied political rights to participate.

The theoretical basis for Schmitt’s differentiation between the right of a political party to participate and the right of an individual to believe seems to come from Hobbes’ distinction

72 Schmitt, Constitutional Theory, 365. 73 Carl Schmitt, Der Hüter der Verfassung, 4th ed. (Berlin: Dunker & Humblot GmbH, 1931), 87-91. 74 Schmitt, Constitutional Theory, 366. 75 Peter C. Caldwell, "Controversies over Carl Schmitt: A Review of Recent Literature," The Journal of Modern History 77, no. 2 (2005): 372. 76 Schmitt, Legality and Legitimacy, 47-51. 77 Schmitt, Legality and Legitimacy, 48.

Page | 209 Leviathan Run Aground: Chapter 6 between confessio and fides.78 Private belief (fides) cannot translate into acts eroding the foundations of the public sphere (confessio). Private beliefs, even those opposed to the political status, are tolerable as long as they remain depoliticized. But when individuals and associations become indirect powers threatening the nature of the peace the relativizing status achieves, a qualitative shift, they cross the threshold of tolerability because it risks reintroducing the state of nature. The state cannot tolerate such private beliefs. Just as Hobbes excepted private individual belief from the public “cujus regio, ejus religio,” so Schmitt theorized Weimar could tolerate radical individual beliefs but not politicized illiberal antidemocratic movements that attempted to revolutionize the constitution. There was no way to stop a private Nazi, but the state had to prevent the Nazi party from using government to undermine the legitimacy of Weimar by obstructing or subverting it. Thus, by adapting Hobbes’ concepts to the 20th century, Schmitt justified bans on those political parties existentially opposed to Weimar. c. The Federated State [Bundesstaat]

Finally, Schmitt cautioned that tensions between Weimar’s Länder (individual states, such as , Bavaria, and Nord Rhine-Westphalia) and the Reich itself could be another means for revolutionaries to exploit democracy to further their goals of undermining the state and constitution. He wrote that the Länder were the walls behind which extremist parties could hide and consolidate their power.79 For example, the NSDAP used Bavaria as its safe haven and grew within its relative safety. Another example of the problematic dynamic of Reich and Länder came from Prussia. Prussia was two-thirds of the entire Reich. And because the Prussian capital was also located in Berlin, Berlin housed two centers of government and two parliamentary bodies: the Prussian Landstag and the Reichstag. And the Prussian police were large and strong enough to potentially constitute a military power strong enough to balance the Germany army itself. Were the Prussian Landstag seized by extremists, it may not even matter if the Reich itself was still constitutionally secure. For Schmitt, Prussia had the potential to become a political and military counter-power to Weimar and to turn the Reich into a “colossus with feet of clay.”80

Schmitt argued Prussia could not be permitted to become a counter-power within Weimar’s federated structure. Were the NSDAP or KPD to take Prussia, they would be in a position to directly threaten the Reich. By staging a revolution in Prussia, they could trigger civil war within the Reich itself. And this problem would actually come to a head in the Preußenschlag.81

78 Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein (Chicago: University of Chicago Press, 2008), 54-56. 79 Gabriel Seiberth, Anwalt des Reiches: Carl Schmitt und d P o ss „P uß contra Reich" vor dem Staatsgerichtshof (Berlin: Duncker & Humblot, 2001), 231. 80 Seiberth, Anwalt des Reiches, 217. 81 The political pluralism in Weimar’s Reichstag was paralleled in its Länder. And although the Prussian Government had been dominated by the SPD until 1932, Prussia too had become a microcosm for the party political-situation of the entire Reich. There, powerful and well organized political movements with affiliated paramilitary organizations confronted one another as political “enemies” committed to using any and all means to

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In the Preußenschlag, Schmitt drafted ordinances to thwart the NSDAP’s attempts to hold a legal revolution in the Prussian Landstag and weaken the power Prussia could use through Weimar’s federated structure. He also advised Hindenburg, via von Schleicher, to use Article 48 to unify the Reich and overcome opposition from both the SPD and the NSDAP to collapsing Prussian power. Schmitt described his participation in the Preußenschlag as an attempt to prevent the NSDAP from finding any subsequent handholds in its ascent to power without giving it rallying point to further contest democratic legitimacy. He believed the Reich had to bypass the factional acquire the state and wield its machinery to impose their Weltanschauung across it. And as the SPD’s base of support eroded in Prussia, extremist parties expanded. Schmitt’s concerns about the dynamic between Prussia and the Reich, between two extremism and the state, played out in reality in the events leading up to the “Preußenschlag” of July 20, 1932. And – in a rare moment for political and constitutional theorists – Schmitt had the opportunity to put his theory into direct practice when he represented the Reich in Prussia vs. Reich, the constitutional trial over the legitimacy of the Preußenschlag. The Preußenschlag installed von Papen as “Commissioner” of Prussia – effectively ending Prussia’s independent status as a Land. Dyzenhaus, who offers the best analysis in English, argues this decree removed the last pillar of legitimate democracy in Weimar when it removed the SPD from power in Prussia (David Dyzenhaus, "The Concept of the Rule-of-Law State in Schmitt's Verfassungslehre," in The Oxford Handbook of Carl Schmitt, ed. Oliver Simons and Jens Meierhenrich (Oxford: Oxford University Press, 2014), 16-22; Dyzenhaus, Legality and Legitimacy, 30-37; David Dyzenhaus, "Legal Theory in the Collapse of Weimar: Contemporary Lessons?," The American Political Science Review 91, no. 1 (1997): 122-127.). Yet, although Prussia had been controlled by the SPD until April 24, 1932, it was not the Preußenschlag that upset the balance of power. After the April elections, the SPD no longer commanded a plurality of the vote. Instead, the NSDAP had triumphed in the elections and won a plurality. Moreover, after April it was the NSDAP and the KPD who commanded a majority in the Prussian Landstag. It was with the April elections that Prussia ceased to be the pillar of Weimar democracy. Sensing its loss of power, the Prussian SPD led by Braun passed an eleventh hour revision to election law that allowed it to remain in office as a “permanente Geschäftsregierung” [permanent caretaker government] to govern until a legitimate alternative coalition formed (Seiberth, Anwalt des Reiches, 43ff, 93ff; Dyzenhaus, "The Concept of the Rule-of-Law State in Schmitt's Verfassungslehre," 17.). This revision prompted a legitimation crisis: the NSDAP argued the SPD changed the rules of the game to keep itself in power, violating democratic neutrality and its right to the cabinet as Prussia’s largest party. The SPD counter-argued that the NSDAP could not form a legitimate majority coalition. Although our sympathies naturally fall with the SPD, its decision to alter the electoral law did effectively kick down the ladder of democracy, changing the nature of democratic equal chance altogether (Cf. Caldwell, "Controversies over Carl Schmitt: A Review of Recent Literature," 369-371.). On the other hand, Braun and the SPD were right to try to find ways to keep the NSDAP out of office, recognizing the unconstitutional nature of the party. In effect, their actions were consistent with Schmitt’s own concerns about unconstitutional parties even if they did not resolve the problematic dynamic of Prussia and Weimar. As noted above, Schmitt argued that there is no duty to resign in the case of negative majorities in his discussion of Article 54. Caldwell notes that Schmitt’s participation in the Preußenschlag raises doubts about his theory. But with all the other problems of the Prussian state, especially the counterpower it posed to the Reich, however, Schmitt believed the situation was too grave to attempt an SPD-led minority coalition there. (Caldwell, "Controversies over Carl Schmitt: A Review of Recent Literature," 372-373; Cf. Dyzenhaus, "The Concept of the Rule-of-Law State in Schmitt's Verfassungslehre," 19-20; Dyzenhaus, Legality and Legitimacy, 82.) Neither the SPD nor the NSDAP would tolerate the other’s control over the Prussian Landstag because both saw the other’s actions as illegitimate and unconstitutional. Rather than risk the situation escalating into civil war, von Schleicher asked Schmitt to constitutionally prevent Prussia from becoming a political counterpower to the Reich, should it fall into the hands of the NSDAP (Seiberth, Anwalt Des Reiches, 144.). Schmitt drafted an ordinance [Verordnung] to keep the police out of the hands of the NSDAP and an attempt to ban paramilitary organizations and unconstitutional parties like the NSDAP. He also advised von Schleicher to exercise Article 48 to unify the Reich and circumvent any potential violent confrontations between the SPD and NSDAP and between Prussia and the Reich.

Page | 211 Leviathan Run Aground: Chapter 6 conflicts occurring in its Länder if Weimar’s Absolute Constitution was to be maintained.82 This meant reinforcing the legal unity of the Reich against Prussia – the state within the Weimar state. d. Reflections from Bonn

In his 1958 remarks to Legality and Legitimacy, Schmitt notes that his arguments against the unlimited use of Article 76, rejected in Weimar, found express recognition in Article 79 of the 1949 Bonn Grundgesetz.83 Schmitt argues the Grundgesetz realized the very principles upon which he had insisted 18 years earlier in his struggle against a relentless “value-neutral, positivistic” opposition. Schmitt believed the principles underlying the Article 79 eternity clause of the Grundgesetz can be construed in terms of the distinction between Absolute and Relative Constitution, between legitimacy and legality.

Even before he explicitly endorsed Article 79 in 1958, Schmitt wrote a lengthy analysis of the Bonn Grundgesetz in 1949 under a pseudonym.84 This analysis has been almost entirely overlooked in English,85 yet it reveals how he thinks the Weimar Constitution should have looked if it were to successfully uphold the Absolute Constitution. Schmitt summarizes the Bonn Grundgesetz by writing “the Federal Republic of Germany is not only a democratic and federal

82 Looking at how other theorists, such as Kelsen ( Hans Kelsen, "Das Urteil des Staatsgerichtshofs Vom 25. Oktober 1932," Die Justiz 9, no. 2/3 (1932). ), Kirchheimer (Otto Kirchheimer, "Verfassungsreform und Sozialdemokratie," die Gesellschaft 10(1933): 32. Cited in Seiberth, Anwalt des Reiches, 131. ), and Fraenkel (Ernst Fraenkel, "Verfassungsreform und Sozialdemokratie (1932)," in Gesammelte Schriften, ed. Hubertus Buchstein and Rainer Kühn (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 518ff, 525-529. ), reacted, one finds a consensus that the premises of the Preußenschlag, preventing the NSDAP seizure of Prussia for the security of Weimar itself, were well grounded, legitimate and necessary. Kelsen’s account in is particularly revealing. He argues “The policy and goals of Prussia and the Reich ought to be unified. If a Landsregierung could impede public security and order were it held by certain movements (i.e. the NSDAP), it was legitimate for the Reich to assume power. The Weimar Constitution had created this problem by providing insufficient effective guarantees for its maintenance. Therefore, it fell to the president to do so through Article 48.” To that effect, he writes Hindenburg’s measure [Maßnahme] was constitutional; the constitution provided the possibility for ensuring coordination of the different tiers of institutional power in line with the Grundnorm implicit in the Constitution. cf. Seiberth, Anwalt des Reiches, 195-198. 83 Schmitt, Legality and Legitimacy, 95-96. 84 Carl Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland (1949-1950)," in Carl Schmitt und die Liberalismuskritik, ed. Klaus Hansen and Hans Lietzmann (Opladen: Leske + Budrich, 1988); Cf. Hans Lietzmann, "Carl Schmitt Alias Dr. Haustein: editorische Anmerkungen zu einem politischen Konzept zwischen ,,Occasionalität" und Opportunismus.," ibid. 85 Jan-Werner Müller seems to be the only thinker to have taken it up. But he summarily argues Schmitt wrote it merely in a desperate attempt to earn some money. Müller, A Dangerous Mind, 62. But when one looks at the substance of what Schmitt writes in the context of his earlier analysis of the flaws in the Weimar Constitution and the solutions he proposes, this fails to explain the substance of what Schmitt wrote. The similarities between this anonymous argument and his other writings are remarkable. Schmitt actually restates, in “un-Schmittian” terms, many of the same constitutional arguments he made in Weimar. Most importantly, he approves that the architects of the Bonn Grundgesetz decided on an Absolute Constitution in the terms outlined in his Constitutional Theory through Article 79. Although he Schmitt (deliberately) avoids using many of his characteristic concepts, the meaning remains the same. One finds Schmitt when one knows how to look for him.

Page | 212 Leviathan Run Aground: Chapter 6 structure. It is above all a Rechtsstaat…”86 He writes “if [the basic rights outlined in Articles 1- 19] really dominate the entire public life of the federation and the states, one can say that Germany is a Rechtsstaat in which the life, liberty, and property of every human being is protected and it is moreover not misleading to speak of the basic rights of the Germans.”87 He argues the Grundgesetz is a major advance because it structures its constitution logically. Rather than putting the “organizational” component first, as Weimar had, it opens with its basic decision to be a Rechtsstaat.88 This positioning eliminates the ambiguity about its political status that had led to the prevailing interpretation in Weimar.

Besides simply expressing its basic decision, Schmitt argues that the Bonn Grundgesetz also commits to it. Its status as a bourgeois Rechtsstaat takes precedence because it argues the basic rights of Articles 1-19 are asserted as existing prior to the state, they are the telos for which the state exists.89 Positive Law, he argues, has been reconnected to idées générales because Bonn’s basic rights link law to its meta-juridical foundations.90 He also anticipates his 1954 claim, writing with approval that Bonn’s Article 79 “Eternity Clause” legally entrenches the constitution’s political decision from any attempts at revision whatsoever. Bonn is thus not merely a mechanical state, it committed existentially to its Absolute Constitution. Furthermore, Schmitt notes that popular referendums are not included in the Grundgesetz, which will further buttress its constitution against radical democratic revision.91

Schmitt writes the Grundgesetz also provides for a definite guardian (Hüter). However, it is not the Reichspräsident, but the courts, culminating in the Federal Constitution Court, who are its guardian.92 It seems likely that he would be satisfied that there is an explicit guardian, especially that the guardian had the power to overrule democratically “legitimated” decisions against the Absolute Constitution.93 The most important power of the courts is to declare explicit Enemies of the constitution. The interpretation of core political concepts like “democratic” or “just” is not left open in a way where they could be interpreted against the basic decision of the Grundgesetz.94 Schmitt’s also finds his typology of basic rights in the Grundgesetz: according to Article 21, parties can have their political rights restricted or they can even be banned for violating Bonn’s constitutional principles and, according to Article 18, individual liberty rights in connection with other individuals may also be forfeited when they are abused in the struggle against the basic democratic order. Schmitt notes, in contrast to Weimar’s weak federalism, there Articles 31 and 37 assure the legal superiority of Federal law over Land law and authorize the

86 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 194. 87 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 181. 88 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 176. 89 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 194. 90 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 178-180, 181, 189. 91 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 181. 92 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 191ff. 93 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 177, 178ff. 94 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 177-178, 180, 193-194.

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Federal government to use coercion in extreme cases against the Länder for the sake of preserving political and legal unity. Finally, Schmitt notes with approval how the Bonn Grundgesetz has a mechanism to prevent the recurrence of negative majorities’ abuse of the vote of no confidence, the “so-called constructive or positives votes of no confidence” of Article 67.95

Schmitt's remarks on the Bonn Grundgesetz show that he believed it was an improvement over the Weimar constitution. Bonn had learned from the errors that had crippled Weimar. Most importantly, it decides for itself and provides mechanisms to prevent democratic legitimacy from being abused to destroy the constitution and revolutionize the state.

4. Carl Schmitt, Karl Loewenstein, and Militant Democracy

Schmitt argued the Weimar Constitution – any liberal democratic constitution, for that matter – faced a choice when its two constitutive principles conflicted: between democratic legal change and basic rights, value-neutrality and Liberté, Relative Constitution and Absolute Counter- Constitution.96 Under normal circumstances, these two principles coexist unproblematically. Yet in exceptional circumstances, like a political and economic crisis, the existential opposition between them can erupt and demand a decision on which ought to have priority.

But it was only a choice in theory, Schmitt thought, because the decision for total value- neutrality only led to “system suicide.”97 Unconstrained democracy and value-neutrality lead to chaos and tyrannical government.98 Schmitt vehemently opposed this constitution – but he did so with another.99 He argued basic rights could be the foundation of legal order in the substantive sense he proposes; they could serve as Weimar’s “superlégalité constitutionnelle.”100 Were liberalism to restrict its value-neutrality to matters beyond its own liberal order and existentially commit to liberalism and elevate basic rights beyond the reach of revision, it would establish itself as a qualitatively total state and become political liberalism.

Renato Cristi describes Schmitt’s theory as “authoritarian liberalism,”101 i.e. “a form of liberalism that stands opposed to purely normative liberalism.”102 This definition makes sense especially when one considers Schmitt’s discussion of philosophical anthropology: the dogma of

95 Schmitt, "Das Grundgesetz der Bundesrepublik Deutschland," 187. Article 67 reads, “A vote by the expressing its lack of confidence in the Federal Chancellor only brings about the government’s resignation if the opposition that issued the vote of no confidence simultaneously (and with the majority of all the members of the Bundestag) proposes a new Federal Chancellor who has their confidence.” 96 Schmitt, Legality and Legitimacy, 46-47. 97 Schmitt, Legality and Legitimacy, 48, 58. 98 Schmitt, Constitutional Theory, 235-236, cf. 202ff. 99 Schmitt, Legality and Legitimacy, 94; Cristi, Carl Schmitt and Authoritarian Liberalism, 175. 100 Schmitt, Legality and Legitimacy, 57. 101 Cristi, Carl Schmitt and Authoritarian Liberalism, 6. 102 Renato Cristi, "The Metaphysics of Constituent Power: Schmitt and the Genesis of Chile's 1980 Constitution," Cardozo Law Review 21, no. 5-6 (2000): 1754.

Page | 214 Leviathan Run Aground: Chapter 6 political liberalism holds human nature to be naturally “evil” and required some measure of authority to prevent a state of chaos from erupting – what Cristi calls “normative” liberalism, which produces value-neutral proceduralism, does not. Schmitt had theorized a state that could defend and enforce basic liberal rights unconditionally. Its legitimacy lays in realizing a rational political status rather than a will, which provided it with a basis to overrule popular sovereignty in those cases where its will conflicted with basic rights. Schmitt’s theory indeed straddles authoritarianism and liberalism.

But there is another way to characterize Schmitt’s theory of the Absolute Constitution when applied to liberal democratic states. When one considers the institutions Schmitt theorized – the concept of the Absolute Constitution (the absolute entrenchment of the core principles of the constitution), bans on “unconstitutional” parties, and a guardian who can authoritatively determine the Friends and Enemies of the constitution and the limits of legitimate constitutional change – his theory ends up looking a lot like Karl Loewenstein’s theory of “militant democracy.”103 And, as I have argued, Schmitt argued his constitutional theory has a lot in common with the main institutions outlined in the Bonn Grundgesetz, which is arguably the paradigmatic militant democracy constitution. These overlaps may reveal something about the nature of militant democracy itself.

103 I suspect that Loewenstein’s militant democracy might have been substantially influenced by Schmitt and a welcome contribution to the literature would be a scholarly analysis of Loewenstein’s pre- and post-Weimar state and constitutional theory. Loewenstein’s militant democracy is a substantial departure from his earlier constitutional writings. In 1931, before the fall of Weimar, Loewenstein, like Kelsen, Thoma, and Anschütz, argued against limiting democratic constitutional change (through Article 76), arguing explicitly against Carl Schmitt. Yet, as I describe below, Loewenstein’s theory of militant democracy overlaps substantially with Schmitt’s theory. Thus, in the span of 5 years or less, Loewenstein’s theory about the relationship of constitutionalism and democracy seems to have undergone an almost total reversal. When taken in conjunction with Loewenstein’s familiarity with Schmitt and his work and Loewenstein’s post-war remarks about how Schmitt’s “constructive criticism” of the Weimar Constitution, particular in his Dictatorship and Constitutional Theory, diagnosed its defects and offered a potential remedy to it, there is a good deal of circumstantial evidence pointing to Schmitt’s influence on Loewenstein. What remains, then, is to see whether there is any substantial evidence to confirm or deny Schmitt’s influence. The most explicit contrast with Loewenstein’s militant democracy comes from his 1931 Habilitation, Erscheinungsformen der Verfassungsänderung, in which he was highly critical of key features of Schmitt’s state and constitutional theory – especially Schmitt’s attempts to limit the exercise of Article 76. In his Habilitation, Loewenstein argued the Weimar Constitution was infinitely amendable as long as Weimar’s Reichstag adhered to the procedures outlined by Article 76. Speaking of the Reichstag, he writes “The legislative [Gesetzgeber] organized as a constitutional legislator [Verfassungsgesetzgeber] faces no substantive limits to constitutional change, even to the point of the total abrogation [Totalaufhebung] of the constitution, as long as they adhere to the essential forms shown to be absolutely necessary in this study; therefore, Carl Schmitt’s theory of the material limits to constitutional amendment has to be rejected.” Karl Loewenstein, Erscheinungsformen der Verfassungsänderung: Verfassungsrechtsdogmatische Untersuchungen zu Artikel 76 der Reichsverfassung (Aalen: Scientia Verlag, 1968), vii (my emphasis).

Page | 215 Leviathan Run Aground: Chapter 6 a. Karl Loewenstein’s Militant Democracy

Karl Loewenstein first coined the term “militant democracy” in 1937. He argued democratic principles had, across Europe, enabled antidemocratic and illiberal parties to exploit democracy for legal revolution. In response, he wrote, “democracy must become militant” – by which he meant democracy should set measures to limit how democratic procedures could be used against a liberal democratic state’s constitutional core. His argument is in some ways an affirmation of constitutionalism over democracy. But he pushes militant democracy beyond constitutionalism: Loewenstein argues democracies ought to defend themselves proactively against its enemies, including potential or latent threats. The most important features of Loewenstein’s theory are the absolute entrenchment of constitutional principles beyond the reach of democratic emendation;104 restrictions on the political rights, like equal chance, of antidemocratic or illiberal parties and movements105 (and the distinction of political rights from basic rights106); the appointment of a clear “guardian” of the constitution and the legitimacy of the use of exceptional acts against enemies of the constitution;107 controls on “political” uses of the media and other demonstrations against the heart of the democratic state;108 and the federation of states to prevent the formation of extremist safe havens.109

Like Schmitt’s theory of the Absolute Constitution, Loewenstein’s militant democracy is above all concerned with preventing the subversion of a constitutional democracy by an emotionally- driven “ochlocracy.”110 Also like Schmitt’s theory, Loewenstein argues that the core principles of the democratic state must stand beyond the reach of popular revision.111 Finally, he argues like Schmitt that even democratic government requires consensus on the “fundamentals” of the state; that total plurality can undermine the state. In a passage worth quoting at length, he writes,

104 Karl Loewenstein, "Militant Democracy and Fundamental Rights, I," The American Political Science Review 31, no. 3 (1937): 424, 430; Karl Loewenstein, "The Demise of the French Constitution of 1875," The American Political Science Review 34, no. 5 (1940): 874-876, 885, 888-889. 105 Loewenstein, "Militant Democracy and Fundamental Rights," 423, 424; Karl Loewenstein, "Dictatorship and the German Constitution: 1933-1937," The University of Chicago Law Review 4, no. 4 (1937): 541. 106 Karl Loewenstein, "Militant Democracy and Fundamental Rights, Ii," The American Political Science Review 31, no. 4 (1937): 645-648, 651-654; Loewenstein, "Militant Democracy and Fundamental Rights," 425-427, 430; Karl Loewenstein, "Legislative Control of Political Extremism in European Democracies I," Columbia Law Review 38, no. 4 (1938): 601, 602; Loewenstein, "Legislative Control of Political Extremism in European Democracies I," 596. 107 Loewenstein, "Militant Democracy and Fundamental Rights," 432; Loewenstein, "Militant Democracy and Fundamental Rights," 430; Loewenstein, Erscheinungsformen der Verfassungsänderung, 157ff; Cf. Karl Loewenstein, "Observations on Personality and Work of Professor Carl Schmitt," (Karl Loewenstein Papers: Amherst College Archives and Special Collections, 1945), 1-2. 108 Loewenstein, "Militant Democracy and Fundamental Rights," 425-426; Loewenstein, "Legislative Control of Political Extremism in European Democracies I," 601, 602. 109 Loewenstein, "Militant Democracy and Fundamental Rights," 427. 110 Loewenstein, "Militant Democracy and Fundamental Rights," 418; Karl Loewenstein, "Monarchy Gains Lost Ground in Europe," Social Science 11, no. 3 (1936): 240. The term ochlocracy actually comes from ’ Histories. The term Aristotle used to describe an untempered rule of the majority was simply “democracy.” 111 Loewenstein, "Legislative Control of Political Extremism in European Democracies I," 591-592.

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Evidently parliamentary government is workable only where unanimity about the fundamentals of national values is unbroken. In the absence of such unanimity, the strain of how to harmonize conflicting conceptions on the therapeutics to be administered to the ailing body politic resulted in most states in destruction of the policy-forming process through parliament, and, in consequence thereof, in economic disintegration and even chaos. More and more the legislative body torn by internal dissensions, became incapable of expeditious action or any action at all.112

Like Schmitt, Loewenstein sees factionalism – caused by the disagreement over the fundamental political “decision” of the state and constitution – as the defining threat to the 20th century democracy. The democratic state cannot tolerate those who reject the rules of the game. And, like Schmitt, Loewenstein argues these “fundamental” decisions are the basis to distinguish total from partial constitutional revisions.113 He conceives these fundamentals as the inviolable core of the constitution. And movements substantively opposed to “democratic” constitutional fundamentals and who would seek to alter them if they had sufficient popular support can be legitimately denied political participatory rights.114 Loewenstein’s militant democracy thus holds a substantive conception of what the constitution and democracy look like and it uses them to guard against pathological forms of democratic behavior.

Although “militant democracy” is for the sake of defending the “democratic order,” it employs mechanisms remarkably similar to Schmitt’s Absolute Constitution. Despite its name, Loewenstein’s militant democracy does not seem to be primarily concerned with preserving “democracy.” It is about preserving the deeper core of the constitution, which Loewenstein calls “fundamental rights,” against democratic subversion. It is also about denying “unconstitutional” parties access to those legal democratic procedures and using state authority to overcome constitutional emergencies and its enemies. Insofar as the spirit and logic of democracy includes an openness to democratic revision of even core constitutional features and a toleration of the political goals of its constituents,115 Loewenstein’s militant democracy is undemocratic. That is, although democracy still plays a role in militant democracy, it is in a contained form and an at best secondary consideration. In this regard, Loewenstein’s theory seems to have a substantial overlap with Schmitt’s constitutional and political theory – as he himself suggests in his 1945 remarks on Carl Schmitt.116

112 Karl Loewenstein, "The Balance between Legislative and Executive Power: A Study in Comparative Constitutional Law," The University of Chicago Law Review 5, no. 4 (1938): 583. 113 Loewenstein, "The Demise of the French Constitution of 1875," 874ff. 114 Loewenstein, "Militant Democracy and Fundamental Rights," 424, 430. 115 Loewenstein believed democracy did until he converted to a more authoritarian orientation in 1933. 116 Loewenstein, "Observations on Personality and Work of Professor Carl Schmitt."

Page | 217 Leviathan Run Aground: Chapter 6 b. An Alternative Rights-Based State Theory

Jan Werner Müller recently wrote that militant democracy appears to lack “a proper normative theory.”117 This may be due in part to the way Loewenstein theorized it. He was more concerned with establishing practical institutions to deal with the immediate threat of fascism than with providing a substantive legitimation for those institutions. Many thinkers confronting it today are less comfortable with Loewenstein’s theory, worrying for example that militant democracy betrays democracy’s legacy of self-determination and self-legislation.118 Militant democracy may not sit well with these thinkers because, aside from its name, it is not so much a theory of democracy as a peculiar, and extreme, theory of constitutional commitment. But it does not sit well with traditional liberal theory either, because it draws hard limits on toleration and gives state authority substantial latitude in defending itself. For these reasons, “militant democracy” may not sit well with the core ideals of liberal democracy at all. Yet, for lack of alternative ways to conceive of it, theorists have struggled to define and defend it as an institution. But conceiving of militant democracy as an extension of the liberal democratic tradition may be the wrong approach. Its similarities with Schmitt’s state theory provide an opportunity to approach militant democracy differently than it has been so far.

Although Schmitt saw his state theory as embracing a facet of liberalism, it does not sit well within the liberal tradition. Peter Caldwell, Duncan Kelly, and Nehal Bhuta have shown that Schmitt inherits and stands in the 19th century tradition of German state theory that understands, Bhuta writes, the state as “a comprehensive unity of social life and an order of domination authorized to guarantee the moral relations of this .”119

While this 19th century “Hegelian” approach to the state may overlap with the liberal democratic tradition on certain issues, there are reasons to be reluctant to classify it as emerging from that tradition. In particular, it collides against the ideals underlying the social contract tradition. It theorizes the state’s existence, before that of the individual and subordinates individual status to that of the state – even as the state guarantees individual rights against it. Through this genealogy, Schmitt may be better understood as taking up a theory of rights based on a far older tradition than liberalism. While Schmitt’s immediate relationship to this tradition comes through his early study of Jellinek and Sohm, it began with the ancients and runs through seminal thinkers like Hobbes (in Schmitt’s interpretation) and – most importantly – Hegel.

117 Jan-Werner Müller, "A “Practical Dilemma Which Philosophy Alone Cannot Resolve”? Rethinking Militant Democracy: An Introduction," Constellations 19, no. 4 (2012): 536-537; Cf. Marcus Thiel, ed. The 'Militant Democracy' Principle in Modern Democracies (Burlington: Ashgate, 2009), 4-5; András Sajó, ed. Militant Democracy (Utrecht: Eleven International Publishing, 2004), 9, 11. 118 Melissa Schwartzberg, Democracy and Legal Change (New York: Cambridge University Press, 2007), 2, see also 193, 197, 200-201; Müller, "Rethinking Militant Democracy; Patrick Macklem, "Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe," ibid.: 575. 119 Nehal Bhuta, "The Mystery of the State: State-Concept, State-Theory and State-Making in Schmitt and Oakeshott," Department of Law (EUI, 2014), 11, 16.

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Hegel aimed to reconcile Greek and Roman ideals of political life as the realm of reason and the highest form of individual existence with modern ideals of individualism. He argues freedom consists in the possession of rights and the absence of domination. But it departs substantially from the liberal tradition. He understood rights along the lines of the Roman concept of libertas – as opposed to licentia.120 Licentia was the freedom to will arbitrarily, a power to do whatever one likes without constraint or qualification. But the absence of constraints only leads to anarchy. Arbitrariness is not actually meaningful freedom: in a condition where anyone can do anything, Hobbes’ bellum omnium contra omnes reemerges.121 Thus, were everyone guaranteed subjective freedom (licentia), the outcome would be arbitrariness and eventually political chaos. The freedom of Libertas, on the other hand, begins with the renunciation of the arbitrary willing of licentia. If everyone is to enjoy freedom, there must be constraints on every individual’s will through law and guaranteed basic rights. This ideal also holds that meaningful freedom can exist only in a rational, law-bound order. Because libertas is not naturally occurring but must in a sense be imposed, it requires political authority. Individual rights could not exist outside that political authority.122

But beyond the effects of purely subjective freedom like licentia, Hegel argued that living in a community in which the state and political institutions were merely an instrument for the satisfaction of individual self-interests or living in a community unguided by “reason” would be to live in a state of incomplete freedom.123 The state alone was capable of realizing a rational, normative order in the world.124 So, not just rights but Right [Recht] itself was not possible outside of the state. Meaningful individual freedom therefore depended on the state’s authority to impose a rational order. It was thus normatively desirable to live in a rational state. But, conversely, Hegel argued that a Platonic-like state that did not provide for some degree of subjective freedom was not human at all – and therefore could not provide for meaningful individual freedom either.125 Full ethical life, Sittlichkeit, can come about only when both conditions are realized. The trouble was how to properly balance the two types of freedom.

In this Hegelian tradition, a condition of state’s legitimacy and its end, therefore, was to realize Sittlichkeit.126 A further condition of Sittlichkeit was that it could not be a condition simply imposed on individuals by the state – as it would be if the state ruled merely using positive

120 Chaim Wirszubski, Libertas as a Political Idea at Rome During the Late Republic and Early Principate (Cambridge: Cambridge University Press, 1950), 8; Cf. Steven B. Smith, Hegel's Critique of Liberalism: Rights in Context (Chicago: The University of Chicago Press, 1989), 108. 121 Wirszubski, Libertas as a Political Idea at Rome During the Late Republic and Early Principate, 8; Cf. Smith, Hegel's Critique of Liberalism, 126. 122 Shlomo Avineri, Hegel's Theory of the Modern State (Cambridge: Cambridge University Press, 1974), 101-102; Frederick Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom (Cambridge: Harvard University Press, 2000), 15-16. 123 Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom 155. 124 Avineri, Hegel's Theory of the Modern State, 127; Bhuta, "The Mystery of the State," 31. 125 Avineri, Hegel's Theory of the Modern State, 20-47, 171. 126 Smith, Hegel's Critique of Liberalism, 130.

Page | 219 Leviathan Run Aground: Chapter 6 law.127 Individuals must identify with the moral community and recognize the rational ends of their state as representing a higher (and worthier) goal than the satisfaction of their immediate material needs.128 That is, the constituents of the state must identify with the normative order the state realizes, which is simultaneously the state’s attempt to represent the realm of objective spirit and reason.129 And because a meaningful individual life and Right itself could not exist outside of the state, Hegel argued no state could be justified that was neutral toward its own order.130 Thus, a part of legitimacy meant the absolute authority of the state with regard to the realm of objective reason and the preservation of that order. The state was necessary for realizing complete freedom, a condition of Sittlichkeit.

The rule of law was the state’s tool for realizing Sittlichkeit. It does so through both objective reason and subjective freedom. In terms of objective reason, individuals within the state will ideally recognize that, even if the law contravenes their immediate self-interests and needs, it is nonetheless legitimate because it is for the sake of a higher good and guarantees the commonwealth, both of which they share in and see as a part of their rational self-interest. Beside the politicized order of “objective reason” imposed by the state, this Hegelian state guaranteed a sphere beyond the reach of the political and legal interference through individual rights.131 It institutes a system of legal rights to guarantee a sphere of individual discretion. He called this depolicitized sphere civil society. Within the sphere of civil society, individuals could freely and arbitrarily live their lives however they desired. The depoliticized and “arbitrary” nature of civil society in Hegel’s state theory has been identified as Hegelian pluralism.132

In his earlier writings, Schmitt discusses this Hegelian approach but attributes these ideas to Hobbes. He juxtaposes two types of natural law: scientific and justice-oriented (wissentschaftliches Naturrecht and Gerechtigkeitsnaturrecht).133 Gerechtigkeitsnaturrecht is defined by the rational and God-given qualities of the individual which exist prior to and independent of any political and social institutions that it produces.134 The state is constrained while the individual is unconstrained. Schmitt argues that this Grotian-Lockean tradition of natural law presupposes a certain order is already in effect. But without the determinacy of (individual) rights decided upon and effected by the state, there can be no Right at all.135 There is

127 Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom 139. 128 Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom 221ff; Avineri, Hegel's Theory of the Modern State, 87. 129 Avineri, Hegel's Theory of the Modern State, 87. 130 Smith, Hegel's Critique of Liberalism, 127. 131 Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom 223; Avineri, Hegel's Theory of the Modern State, 47, 143, 167. 132 Avineri, Hegel's Theory of the Modern State, 167; Neuhouser, Foundations of Hegel's Social Theory: Actualizing Freedom 266-267; Smith, Hegel's Critique of Liberalism, 123. 133 Carl Schmitt, Die Diktatur: Von Den Anfängen Des Modernen Souveränitätsgedanken Bis Zum Proletarischen Klassenkampf (Berlin: Duncker & Humblot, 1989), 21, 118. 134 Schmitt, Die Diktatur, 118-119. 135 Schmitt, Dictatorship, 16-17.

Page | 220 Leviathan Run Aground: Chapter 6 no freedom or right in a state of nature. In fact, a state of nature destroys it. Freedom is a human product, something that has to be realized through deliberate actions. Instead, either the rights within this system actually rest on an actual concrete order, which the justification of the system is blind to, or it rests on nothing and will degenerate into a state of nature as individual interpretations conflict and politicize.

Schmitt associates “scientific natural law” with Hobbes. For this theory, although contracting is theorized as an individual act, the individual falls out of the picture in the transition to the state. This tradition theorizes the individual as an atom, whose energy goes into producing the state, which in turn engulfs those atoms into its unified self. In the process, the state attains “unlimited and irrevocable” authority.136 Individuals are, in terms of justification, fully “irrelevant.” And, most importantly, the only moral worth an individual has comes about through the state (until there is a state, no individual can be said to have moral worth because in the state of nature there is no morality). Outside the state, there exists no right and therein lies its value. In Hobbes’ theory, according to Schmitt, the fact of the decision has more importance than the quality of that decision – because the imperative is to create an order in which morality, right, and justice can exist at all.137 Accordingly, the state has priority over the individual and is unconstrained, while, since individuality in a normative sense can only exist within the state, individual status is wholly subordinate to it.

Schmitt offers a rather Hegelian reading of Hobbes. He reads out of Hobbes the role Hegel accords the state in realizing objective reason and Sittlichkeit (which Schmitt too accords the state). This, in turn, suggests the depth of Schmitt’s debts to this Hegelian “lineage.”138 One important overlap is their treatment of individual rights. Although Hegel’s state theory does provide for basic rights and a depoliticized sphere of subjective freedom, it is clearly no liberal theory of rights. Instead it stands in an alternative tradition in which individuals cannot be conceived of outside the state and the order it guarantees. Schmitt, far more so than Hegel, is no liberal. And Schmitt’s account of individual rights and depolicitization ends up sounding a lot like Hegelian “pluralism.” Individual life is “depoliticized,” i.e. left to individuals’ discretion for them to develop themselves however they saw fit. And, like Hegel, Schmitt theorized the rights the state guaranteed were property and basic individual liberties.

Another important similarity is how Schmitt also conceives of the state as fulfilling the opposed values of subjective “need” and objective reason. Hegel’s state appears to be similar to Schmitt’s images of Hobbes’ Leviathan: both see the state as a complexio oppositorium of soul and body – god and machine.139 The state simultaneously satisfies individual “need” through the freedoms of

136 Carl Schmitt, "Thomas Hobbes/Baruch Spinoza (1919)," in Schmittiana: Beiträge zu Leben und Werk Carl Schmitts, ed. Piet Tomissen (Berlin: Duncker & Humblot, 2001), 15. 137 Renato Cristi, "Carl Schmitt on Sovereignty and Constituent Power," in Law as Pol t s: Ca l S m tt’s C t qu of Liberalism, ed. David Dyzenhaus (Durham: Duke University Press, 1998), 193. 138 Carl Schmitt, "Die Andere Hegel-Linie: Hans Freyer Zum 70. Geburtstag," Christ und Welt, July 25, 1957 1957. 139 Cf. Avineri, Hegel's Theory of the Modern State, 134.

Page | 221 Leviathan Run Aground: Chapter 6 civil society, reinforced through guarantees of individual security, property, and liberty rights. But the realm of objective reason the state imposes is far too important to allow individual discretion – even if a democratic will expresses a desire to alter it. The state for Schmitt alone produces the “higher value (peace, order, the good, the constitution, etc.), a jus of lex, to which individuals must align themselves (their “duty towards the state”) if a concrete order is to be maintained or created” – i.e. a condition of Sittlichkeit.140 But Schmitt does not endorse anything like Hegel’s progressive cunning of reason. Instead, although the state produces “the good,” this good was the struggle against a historical process of disenchantment that came to threaten even the state itself. For this reason, the state could not afford to be neutral toward itself or the rational order it provided. And it was conceived in a way that subordinated the individual to the political order the state constituted. The state, as actualizer of all legal norms in reality, was a necessary authority to hold back or restrain the state of nature.141

Schmitt thought the Hobbesian-Hegelian tradition, which recognized the state as the realizer of a space in which justice, right, law, and even individuality can exist and have meaning, was the only way to legitimate a state that did not leave the door open to its eventual subversion. That is, granting individuals “right” before the state – as the Grotian Gerechtigkeitsnaturrecht tradition did – opened the door to the state’s subversion by individuation. The state, whatever status it realized, had to come prior. Approaching state theory in this way, Schmitt is indeed, as Bhuta has argued, an inheritor of the 19th century German tradition of theorizing (and justifying) the state’s order-generating and -maintaining capacity.142

For Schmitt, understanding the state as prior to the individual does not mean abandoning some of the most important ideals of modernity, however. While one must recognize the priority of the state over the individual – for, without the state, there can be no individual –, Schmitt seems to believe this can be reconciled with the core values of the bourgeois Rechtsstaat as he conceives it: basic rights and checks on state power. Even democracy can be reconciled with this conception of the state. What changes is that these values are conceived of as the core end, or constitutive principle of the state rather than as something individuals have simply by existing – as natural right ex nihilo. Conceived in this way, basic liberal rights depend on the perpetuation of the political order guaranteeing them. And it is the same with democracy. And if democracy becomes a weapon against itself or against basic rights, then no matter how “right” popular sovereignty may be, the political order guaranteeing it takes precedence over its practice as well as for the sake of preventing the far worse evil – the re-eruption of the violence of the state of nature that a democratic “revolution” entails. Without the guaranteed practice of the most important ideals of modernity, i.e. liberal freedoms and democracy, their a priori reasonability can end up being irrelevant for human life. Recht is nothing if it is not also real.

140 Bhuta, "The Mystery of the State," 45. 141 Bhuta, "The Mystery of the State," 29. 142 Bhuta, "The Mystery of the State," 3.

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Conceiving of Schmitt’s state theory as an intermediary between Hegel’s state theory and militant democracy suggests that militant democracy may be a misleading term. It seems to have more in common with “authoritarian” liberalism – or perhaps militant constitutionalism143 –, and the 19th century tradition of German state theory, than any contemporary theories of democratic legitimacy rooted in the Western liberal tradition. Certainly, it comes across as a misleading attempt to repackage classical state-centered thought in terms “friendly” to the discourse of liberal democracy.

I have emphasized how Schmitt denies that law can be mere command, i.e. mere positive law, even if it is a popular command. Recht must be rational as well as real. Militant democracy seems to follow this in arguing that the unqualified freedom of democracy in certain spheres of legislation, such as to eliminate itself, is no longer an act of democratic liberty but an act of democratic license. Because such an act is no exercise of freedom it is not something that the state must guarantee. Yet Schmitt also argued that even if Recht is rational, it must also be real. Thus, whatever rights individuals have exist only within the state and the state need not tolerate this particular type of abuse, even if the state’s end is the actualization of those rights in the case of the bourgeois Rechtsstaat. Toleration and freedom, according to this conception, does not mean respecting the legitimacy of democracy to the point of allowing democratic suicide to undermine the reality of law and the political order.

Militant democracy, in a way similar to what Schmitt has argued, holds that the authority of the state was not reducible to the aggregated will of individuals on certain fundamental issues, i.e. that legitimacy has nothing to do with arbitrary wills of individuals, mechanically assembled. Indeed, militant democracy seems to be compatible with a more “authoritarian” state form whenever democracy encounters a “state of siege.” That is, as long as the core of the constitution is preserved, undemocratic decision-making become legitimate under these emergency circumstances and especially when democracy itself becomes a threat to the constitutional core and the state.

The persistence of “authoritarian” institutions like militant democracy in real constitutions today shows that this 19th century statist tradition is alive and well. Dressed in terminology from a different tradition, discussions about the legitimacy of militant democracy have been complicated because it appear as if it militant democracy should satisfy the terms of democratic legitimacy set forth by thinkers like Kelsen. And even if one objects to militant democracy, by approaching it in terms of Schmitt’s theory of the Absolute Constitution, rather than as standing within the traditional liberal theory, would enrich the discussion of the legitimacy and limits of militant democracy because Schmitt’s state theory provides a normative basis to militant democracy. Militant democracy does not aim at guaranteeing “democracy” per se but is far more

143 I am indebted to Andreas Kalyvas for suggesting this name to me. Cristi eventually links “authoritarian liberalism” with Pinochet’s regime.

Page | 223 Leviathan Run Aground: Chapter 6 concerned with guaranteeing “liberalism.” It is on this basis, and through its origins in 19th century thought, that militant democracy can legitimize limiting the range of democratic will.

Here, again, Schmitt aims to push liberals out of their comfort zone by exposing a core existential decision – one we hope we will never have to act on. Which takes precedence: a commitment to basic rights or a commitment to democratic procedure? Schmitt argues that, those who believe democratic procedure has greater legitimacy must confront one of their underlying presuppositions: that democracy cannot be tyrannical, that the will of the people is all there is. Schmitt argues that not only can democracy be tyrannical but far more important to contemporary political practice than democratic procedure are the rights guaranteeing protections against tyrannical majorities. But he grounds this conception not on metaphysical conceptions of human dignity but on the facticity of the state and its constitution.

Conclusion: Shifting the Debate about Militant Democracy

While Schmitt is certainly not best understood as a liberal, it is a gross simplification to characterize him as relentlessly or vehemently illiberal. His defense of basic rights in his reinterpretation of the Weimar Constitution in Absolute terms, while unorthodox, shows he defends some core features of the liberal tradition. Schmitt’s attitude toward liberalism is best described as ambiguous.

The similarities between Schmitt’s theory of Weimar’s Absolute Counter-Constitution, which he thought had been practically produced in the Bonn Grundgesetz, and “militant democracy” provide us with a new starting point to approach a theory of militant democracy today. Schmitt’s theory shows how militant democracy actually answers a basic dilemma between two antitheses in liberal democracy: commitment to democratic malleability or commitment to individual basic rights. These principles can and do peacefully coexist with one another in regular times. But, Schmitt argues, exceptional circumstances do arise in which the tension between liberalism and democracy causes constitutional fissures. In these circumstances a decision between the two is required. Some decide for democracy and argue that absolute limitations on popular sovereignty are not legitimate. Schmitt argues that a stable political order cannot be produced through democratic procedures alone but instead requires a decision for a more fundamental commitment to basic rights. Only basic rights could be the basis for a qualitatively total state, i.e. for a state grounded in a political decision. The then prevailing interpretation for infinite democratic revision relativized the constitution – effectively mechanizing the state and setting the conditions for the loss of its legitimacy and authority. Militant democracy too makes this argument when it denies democratic change to core areas of the constitution – which it understands to be basic rights and the democratic process itself.

These similarities suggest that it may be a mistake to conceive of militant democracy as standing within traditional liberal democratic theories of rights and the state. Schmitt’s theory of the

Page | 224 Leviathan Run Aground: Chapter 6 political and the Absolute Constitution shares core features of Loewenstein’s militant democracy. I have shown that one can extrapolate a rich state theory from Schmitt’s writings and that his theory of the Absolute Constitution of a “bourgeois Rechtsstaat” stands upon that theory. Those seeking a proper normative theory of militant democracy could find it in Schmitt’s state theory. While militant democrats may rightly be hesitant to uncritically use Schmitt to construct a normative theory of militant democracy, his state theory is a useful starting point in militant democracy’s path to self-understanding and situation within this tradition of state theory.

Page | 225 Leviathan Run Aground: Conclusion

Conclusion: Quis Custodiet Ipsos Custodes?

If democracy really has nothing to do with Weltanschauung, it can in no sense realize the “full truth” of a state personality and can never be more than one state form among others in political and constitutional technique. – Schmitt, “Der Begriff der modernen Demokratie”

States governed by these bodies of people apparently have no choice then: their only chance of being true imitations of the authentic political system, government by a single person with expertise, lies in never allowing the slightest infringement of their written laws and their time- honored traditions once they have been established. – Plato, Statesman

Carl Schmitt theorized the state in response to the rise of modern mass democracy. He believed the din of democracy’s “triumphal march” had drowned out defining questions of political science. Could democracy be tyrannical? Can a constitution commit suicide? Was there any relationship between popular sovereignty and the rule of reason? Were there objective limits to what “the people” can legitimately will, besides numerical thresholds? Schmitt believed that questions like these were no longer asked as Europe celebrated its democratic revolutions. Yet they remained key questions of political theory. Overlooking them imperiled the state’s constitutional order and its political stability.

In fact, the Weimar state and constitution had exhibited signs of how important these questions still were from its birth. “The state of nature” repeatedly burst through its constitutional order. Whatever semblance of stability the state seemed to take on after 1924 only masked the deep tensions within its constitution and society. Above all, Schmitt argued that Weimar had no defense against revolutionaries exploiting democratic legitimacy. The possibility was there from the beginning for an illiberal, antidemocratic party to obtain political power through democratic

Page | 226 Leviathan Run Aground: Conclusion elections and then kick the ladder down by legally amending democracy and liberalism out of the constitution entirely. Schmitt argued mass democracy provided a “legal” means for democratically disingenuous movements to advance their illegitimate goals, presenting those goals as if they were coherent with the values of the Weimar constitution itself. These movements whipped up an emotionally charged base, obtaining for themselves a veneer of democratic legitimacy and the means to parliament. Once in parliament, they exacerbated Weimar’s crises and struggled against one another to advance their particular goals. By 1930, extremists were strong enough to cooperate in parliament to obstruct vital legislation and debilitate the state. So, even before the Nazi’s “legal revolution” occurred, the NSDAP and the KPD had made Weimar’s parliament appear both impotent and incompetent, which “legitimated” their radical alternatives to liberal democracy in the eyes of many German voters.

Schmitt argued Weimar’s would-be defenders showed little capacity to deal with, let alone an awareness of the nature of looming threat. They had argued there was no basis to declare any values or goals politically illegitimate. What mattered to them was democratic procedure: “functionalist value-neutrality” had become the 20th century’s criterion of legitimacy. As long as it was democratically elected, there was apparently no basis to declare a Nazi or Bolshevist state illegitimate. Schmitt argued Weimar’s defenders had consciously or unconsciously mechanized the state, completing a centuries-long process of political neutralization. But a totally neutralized state, Schmitt continued, was the least desirable state: politicization would leap from state to society and reintroduce the insecurity of civil war.

Schmitt saw the situation in Weimar as the 20th century equivalent of the Confessional Civil Wars and he saw himself as the 20th century Hobbes. He modeled his solutions on Hobbes’ Leviathan. Like Hobbes, he theorized how to neutralize substate conflicts and restore the state’s sovereign authority over the political. Schmitt believed that Hobbes’ state had failed due to circumstances Hobbes could not have anticipated: the unique problems of the 20th century, especially modern mass democracy. Accordingly, Schmitt updated Hobbes’ state theory to address those problems. Schmitt argued that, especially in an age of total movements, mass “irrationalism,” and universal suffrage, the constitution must impose hard limits on what popular sovereignty could accomplish, on constitutional amendments, and even on which parties could participate in democratic institutions. These limits, he argued, had been defined by the constitution itself, which he described with his theory of “the political” and Absolute Constitution. A state constructed on his theory could become more than a merely mechanical state, even amidst the disenchantment of the 20th century. It could continue to fulfill its purpose: to hold back the state of nature and provide a space for a meaningful political existence.

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1. The Significance of Carl Schmitt’s State Theory

This dissertation’s analysis and reconstruction of Schmitt’s state theory matters both for our understanding of Schmitt and for our contemporary constitutional and political practices. In terms of our understanding Schmitt, I have attempted to provide an interpretation of Schmitt’s state theory that is more coherent with his writings than other interpretations and which shows how Schmitt is not a radical aberration in political theory but instead builds (admittedly in a very conservative way) on its canonical texts. Above all, I have shown how Schmitt builds on the work of Hobbes and Hegel. But beyond setting the record on Schmitt straight through a critical reinterpretation, Schmitt’s state theory offers insights into our constitutions today that defenders and critics alike can benefit from engaging with. I have focused on how Schmitt’s state theory can contribute to our understanding of militant democracy. a. Reinterpreting Schmitt

History has not been kind to Carl Schmitt. This unkindness has been deserved to a certain extent. In deciding not to disappear from politics in 1933, Schmitt played an important early role in legitimating the Third Reich and propagating its totalitarian regime and its absurd anti-Semitic, völkisch ethos. And Schmitt wrote despicable things while he participated in and sought the approval of that regime. Opportunistically or otherwise, Schmitt’s decision to act in this way brought grave moral consequences. His irresponsible and unrepentant attitude shows he had a wretched character complemented by a razor sharp intellect.

But Schmitt’s early collaboration with Nazism has blurred the borders between his personal failures and his political theory. Schmitt’s shifting commitments exacerbated this lack of clarity. He first argued there was a constitutional basis to bar Weimar’s extremists from political participation but then, after it had triumphed democratically and legally revolutionized the state, he embraced the Nazi movement. All the while, he argued for the priority of the state and Recht over their constituents. As a “complexio oppositorium,” Schmitt provided ways for defenders and critics to bisect him and approach him as Friend or Enemy.

I have argued that, contrary to what some interpreters have maintained, there is a coherent core that extends throughout Schmitt’s writings and that, despite appearances to the contrary, an original state theory can be extrapolated from Schmitt’s writings. I have made the best attempt to interpret his published writings, correspondence, and diaries to understand him as he understood himself.1 I began my analysis by situating Schmitt among the 20th century legal and political theories and events most formative for his intellectual development.

1 Accounting for these opposed interpretations of Schmitt’s political and legal theory means explaining how he could go from (however reluctantly) defending Weimar to embracing Nazism. There are two dominant explanations. Schmitt was an opportunist out for his own survival and personal gain. Or Schmitt simply always was a Nazi, he just needed Hitler to be elected to catalyze his fascism. Both sides attempt to reduce Schmitt’s

Page | 228 Leviathan Run Aground: Conclusion

Building off of his intellectual context, the first step of this reinterpretation was to argue that Schmitt’s political theology was formulated as a critique of the (then prevalent) theory of juridical positivism. He argued that even positivism had a metaphysics. But positivism was a “disadvantageous” weltanschauung not only because it reflected and exacerbated disenchantment but also because it hid real political decisions when it presented them as if they were natural facts of the world. Schmitt argued there is no neutral ideology – all political theory is polemical, even liberalism or functionalist value-neutrality. To the contrary, he thought the effects of masking their polemical roots opened them up to abuse by private powers who were best equipped to exploit their purported neutrality.

I next argued that, far from being a recognizable democrat (even a plebiscitary democrat, as some believe), Schmitt was like many other well-educated conservative Germans of the early 20th century: disturbed by and distrustful of mass democracy in all its forms. Democracy, Schmitt argued, was becoming tyrannical in the 20th century because it had been freed of normative constraints: no procedure, divorced of its relation to normative legitimacy, could provide a stable basis for political governance. Schmitt thought modern mass democracy reflected the prevalence of an atheistic, positivistic worldview politically and, despite attempts to

psychological motivation for this transition or revelation (depending on the interpretation) to a single underlying factor. And this may be the problem with both interpretations. There are several important factors to consider in attempting to explain Schmitt’s behavior. First, as a conservative, Schmitt’s loyalties rested with the constitution in effect. Second, Schmitt was a reluctant defender of Weimar only – he was not dogmatically attached to its survival. He was happy to see Nazism correct some of the most problematic aspects of it (from his perspective), such as mass suffrage and liberalism’s inability to distinguish its enemies and inability to commit politically. Third, Schmitt had much to fear from the Nazis, especially after the Night of Long Knives. They assassinated his former political mentor and there were good reasons to believe he might be assassinated too. Fourth, one simply had to pay Hitler and the party lip service (although Schmitt went beyond this) – even thinkers whose liberal democratic credentials were otherwise in good order affirmed Hitler and his policies: e.g. Richard Thoma praised the “insight” and “saving deeds” of “our Führer, Adolf Hitler” Peter C. Caldwell, "Introduction to Richard Thoma," in Weimar: A Jurisprudence of Crisis, ed. Arthur J. Jacobson and Bernhard Schlink (Berkeley: University of California Press, 2002), 154. But, fifth, Schmitt was genuinely opportunistic. Schmitt, like other conservatives, hoped to manipulate Hitler into realizing his own policies and goals. Sixth, many Germans, across the political spectrum, hoped for a revitalization of Germany. Schmitt was no exception. After Hitler was elected, this hope actually seemed to be a possibility. Seventh, Schmitt like many other Germans was attracted to authoritarian thought. Hitler – setting aside his departure from Schmitt’s ideals – was charismatic and an authoritarian leader who seemed capable of bringing order to a German state that had been in near total chaos since 1929. Yet, once they were elected, he seems to have genuinely bought into it – and even Hitler – as a possible solution to the mire of Weimar’s government. In late interviews, Schmitt admits that in meeting Hitler, “calm as a Buddha,” he was swept up in his personality. Germany itself seems to have been swept up in the sense of hope that Hitler inspired – and became willing to turn a blind eye to otherwise obviously alarming acts and promises. As I wrote in Chapter 1, Schmitt’s psychology and disposition to Nazism has relevant overlaps with what many revolutionary conservatives experienced from 1928 to about 1938. Although obviously initially (vehemently) opposed to Nazism – for its methods and for its ideology –, Schmitt lowered his guard soon after Hitler’s election and appointment and even became enthusiastic and hopeful about Nazism’s possibilities. But this initial euphoria wore off in a few years and Schmitt realized that whatever Hitler’s Reich was and could become, it was not his idea of the Third Way or of an ideal state. And from that point on, he sought to distance himself from it.

Page | 229 Leviathan Run Aground: Conclusion institutionalize some atheistic order, would only lead to a state of nature. Modern mass democracy was the political reflection of a positivistic weltanschauung.

I then reinterpreted Schmitt’s concept of the political. I argued it is not, as it is often understood to be, exclusively about Enmity. It is a theory of the basis for political cooperation. Schmitt argued that without some shared values that “neutralized” real differences and oppositions within a political community, those differences would politicize and undermine the state. He defined “the political” as the neutralizing status of a political community. And he theorized that the aim of representation was to actualize the political status.

I next argued that Schmitt believed the state must regain a monopoly over the political if there is to be peace, order, and security within a political community. The state should represent and institutionalize that political status, asserting it as a higher value to depoliticize other statuses and create a space for plurality within the state. His theory of the Absolute Constitution complements his state theory and through it he attempted to counteract the Relativization of the constitution, which he thought had led to the state’s instrumentalization and the repoliticization of society. Schmitt’s theory of dictatorship ties into his state theory as an extension of his theory of the political and the Absolute Constitution. He theorized the dictator as the constitution’s representative and guardian of last resort in emergencies.

I conclude by arguing that when Schmitt applied his theory of the Absolute Constitution to the Weimar state, he located the political core of its constitution in basic liberal rights – which he raised above Weimar’s democratic state form. Schmitt argued that the Absolute Constitution of a liberal democratic state could only be found in the basic rights of individuals which defend isolated individuals against interference from both other individuals and the state, no matter how democratically “legitimated” interference might be. He theorized the constitution in this way to counterbalance Weimar’s overheated democracy and overcome what he thought was its deeper problem: the disenchanted functionalist-instrumentalist weltanschauung driving the early 20th century. In the case of Weimar, its democratic “Relative” constitution was being manipulated against itself by disingenuous movements seeking to revolutionize the state. The apparent “neutrality” of democracy was subtly legitimizing indirect powers’ struggles for political domination. By counterbalancing the “functionalist value-neutrality” of Weimar’s Relative Constitution with the basic rights of its Absolute Constitution, Schmitt thought even a disenchanted epoch could develop terms of political legitimacy. I argued that Schmitt’s state theory is not a defense of any type of democracy. Instead, Schmitt constructed an original rights- based state theory to defend the state against the tyrannical potential of 20th century democracy.

It is no surprise that Schmitt insisted democracy and liberalism were deeply at odds with one another. But it may surprise many that Schmitt distinguished parliamentarism from basic rights and endorsed many of the rights we understand today to be essential to the practice of liberalism. Until states understood the rights-based parts of their constitutions as their (Absolute) constitutional core and as values that trumped democratic proceduralism, they would potentially

Page | 230 Leviathan Run Aground: Conclusion consume themselves. Although his argument that “no state can realize a mass democracy” is clearly an exaggeration, Schmitt did diagnose real problems mass democracy presents to political order, including indirect powers, tyranny, domination, “legal” revolution, and how Hobbes’ Behemoth sits on the periphery of all political order, even democracy.

Schmitt argued that democratic states in the 20th century were driven to anarchy because they did not understand democracy’s potential for tyranny. Schmitt, instead, understood tyranny as the absence of legitimate authority and rule. Authority and authoritarianism tend to be dirty words today. But a sober assessment shows that Schmitt’s critique of “functionalist value-neutrality,” of unqualified democratic change, and of the tensions between liberalism and democracy yields a constitutional type that is not so far from many of the constitutional forms many today accept as legitimate or at least take seriously – such as militant democracy or even Rawls’ political liberalism. The core of Schmitt’s political theological argument is that few people are actually anarchists; few believe in a naturally occurring order and harmony somehow ingrained in human nature. Schmitt believed most recognize the need for some limits of every individual’s will in order to achieve some modicum of peace, stability, and even meaning in human life. He argued those who admit this much must acknowledge that some form of authority is indeed necessary. The question is then not whether there should be authority at all but where is authority legitimate? And who decides what the proper domain of authority is? b. Redefining Militant Democracy

Militant democracy’s origins seem to be echoed in contemporary debates about its meaning and legitimacy.2 Jan-Werner Müller has defined it as the adoption of illiberal measures to prevent the democratic subversion of democracy. Müller describes four measures that today’s exemplary militant democratic constitution, the Bonn Grundgesetz, incorporates.3 The first is an eternity clause, preventing any democratic amendments to core constitutional principles (usually changes to articles outlining basic rights, the value of “human dignity,” and democracy itself). The second is the possibility to ban the political participation of unconstitutional parties. The third is the restriction of individual rights when those rights become a danger to the order itself. The final is civic education. The second and third are, respectively, institutional and individual limitations of rights when those become a threat to the liberal democratic political order itself. The institution with the power to determine when to restrict rights is the courts, the branch most removed from the democratic political process itself (and thus the one most likely to be neutral with regard to their application).

2 Bendersky recently gave a talk in which he discussed Horkheimer’s positive disposition toward something like militant democracy and its compatibility with Loewenstein’s theory (and, following my claims above, Schmitt’s Ur- theory of militant democracy). Joseph W. Bendersky, "Horkheimer, “Militant Democracy,” and War," Telos(2009). 3 Jan-Werner Müller, "Militant Democracy," in The Oxford Handbook of Comparative Constitutional Law, ed. Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012), 1258-1263.

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Are these best conceived as illiberal measures though? The first, the restriction on democratic will, does not seem to be. It is what has elsewhere been called mast-binding, a form of constitutional precommitment, admittedly an extreme one. The third is clearly illiberal. But Müller points out that it is strictly a symbolic warning that has never yet had any efficacy in practice.4 Insofar as the restrictions on individual freedoms go no further than the symbolic level (which is where they must remain, if they should exist at all), than individual basic liberties are left untouched by militant democracy. Thus, although they would be illiberal if enacted, this third measure of militant democracy is a paper tiger. The fourth measure, civic education, is a relatively uncontroversial aspect of most if not all states today.

It is only the second measure, because it is efficacious, that is ambiguous.5 But when one looks at the rationale for banning parties, it becomes less so. Banning political parties is aimed at preventing illiberal and antidemocratic beliefs from translating into illiberal and antidemocratic political acts. It does not bear on individuals’ privately held beliefs in themselves. An extremist party’s attempt to democratically realize a genocidal anti-Semitic Christian theocracy (either through its seeking to legalize them or simply through extra-legal violence6) could legitimately be barred from politics. But denying the political legitimacy of those values does not entail a corresponding denial of their private, depoliticized practice – no matter how disagreeable they are to the rest of society. The distinction between public right and private right can be conceptualized best, perhaps, through Hobbes’ (Schmitt’s) distinction of fides and confessio. Because of the distinction drawn between the private and political beliefs, the practice of banning parties is best conceived as a democratic constraint rather than an illiberal one.

Thus, pace Müller’s argument, the same characteristics of his definition of militant democracy can interpreted differently to produce a different definition. An idealized militant democracy consists in three features: first, an extreme, exceptional form of constitutional precommitment to the core values of the constitution defined by basic rights; second, the political disenfranchisement of parties existentially at odds with those core values; finally, civic education in liberal and democratic values. The possibility to deny individual basic rights, the existential core of a liberal state, should not be a mechanism open to states because it is incoherent with the end of the state itself. If militant democracy were merely the eternal entrenchment of core values of the constitution, it could be considered to be a form of constitutionalism precommitment, even if this precommitment is very rigid. But because it moves beyond that with party bans, it becomes something different entirely. So militant democracy is distinct from constitutionalism because of its use of ex ante discrimination. And militant democracy is characterized by its pre- emptive antidemocratic measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime. Militant democracy denies the

4 Nor should it. I doubt it should even remain a component of militant democracy. 5 It is worth noting that the practice of party prohibition is a common feature of democracies today. Gregory H. Fox and Georg Nolte, "Intolerant Democracies," Harvard International Law Journal 36, no. 1 (1995): 37. 6 These are the same thing practically when one does not subscribe to militant democracy – except one is the result of legal legitimation through democratic procedures while the other is not yet.

Page | 232 Leviathan Run Aground: Conclusion legitimacy of certain forms of popular sovereignty. Militant democracy is not best characterized as an illiberal but an antidemocratic political institution in those narrow instances it kicks in. c. Schmitt and Militant Democracy Today

Schmitt adds something to contemporary debates about the legitimacy of constraining democracy through institutions like militant democracy. His arguments against the Relative Constitution have been almost entirely overlooked by contemporary debates. This oversight is unfortunate because his theory reveals weaknesses and gaps in contemporary proceduralist arguments that should either be developed further as a means of critiquing them or used by defenders of democratic proceduralism to strengthen their arguments.

Melissa Schwartzberg recently criticized precommitment, in particular entrenchment, for betraying “one of democracy’s most attractive legacies: the ability to modify the law.”7 While Schwartzberg and Kelsen differ on many key aspects of democratic theory, Schwartzberg does share Kelsen’s concern with the validity of legal entrenchment and opposes Schmitt’s theory of constitutionalism.8 She adapts Kelsen’s arguments about democratic legitimacy to today’s discussions about precommitment and entrenchment. In doing so, she demonstrates both the contemporary relevance of the debates Schmitt engaged in as well as provides an updated argument for unconstrained constitutional revision and popular sovereignty.

Schwartzberg argues that any law, even a state’s constitution, should be open to democratic revision as long as legal procedures in effect for revision are adhered to. Schwartzberg seems to agree with Kelsen9 in conceiving of democracy in relativist-proceduralist terms. She writes “no set of beliefs, and no law, can ever attain the level of absolute and immutable truth.”10 Because there can be no absolute truth, she argues the only measure of political legitimacy one can have is democratic self-rule – no matter where it takes a state.

For these reasons, Schwartzberg argues democracy embodies our deepest political commitment. She writes that democracy, as a political activity, must be an innovative, deliberate legislative activity, recognize human fallibility, and ensure democratic engagement and deliberative legitimacy.11 It must also signal to minorities the potential for the reversibility of laws and decisions – that minorities may persuade the majority of the rightness of their views.

She believes forms of constitutional precommitment and entrenchment, including militant democracy, deny states the only legitimate political commitments or values possible to have in a

7 Melissa Schwartzberg, Democracy and Legal Change (New York: Cambridge University Press, 2007), 2. 8 Schwartzberg, Democracy and Legal Change, 154-157. 9 As discussed earlier, Kelsen had openly admitted that his arguments about positivism stemmed from his relativism: once one admits there is no definitive truth, one can only conclude in the legitimacy of positive law and the necessity of admitting any democratically legitimated revisions. 10 Schwartzberg, Democracy and Legal Change, 28,178. 11 Schwartzberg, Democracy and Legal Change, 194.

Page | 233 Leviathan Run Aground: Conclusion world without absolute and immutable truths. Precommitment entrenches particular values, presupposes the infallibility (and inherent reasonability) of those values, and denies the legitimacy of revisions to them – no matter how deliberatively reasonable or popular proposed revisions might be. That is, the extreme form of precommitment of militant democracy contradicts the spirit and logic of democracy because it presupposes the infallibility of the framer’s decision to entrench those core principles.12 Constitutional law is presumed to embody reason, this is the basis for its legitimacy. But Schwartzberg argues this is a problematic presumption. First, no matter how reasonable the founders may be, it is a mistake to presume that they could have perfectly anticipated the future and the circumstances under which the constitution would be applied. A second, deeper objection holds it is a mistake to presume the framers’ reasonability to begin with. Constitutions are written in turbulent circumstances by “highly charged assemblies.”13 Therefore, there is little reason to presume that the laws “locked in” are reasonable at all. But even granting that the laws were formulated reasonably and can anticipate the future, Schwartzberg argues that core constitutional laws should not be confused with the moral concepts they aim to guarantee. That is, the positive instantiation of the moral principles underlying (liberal) constitutionalism are not the same as those moral principles themselves and their positive instantiation may introduce real world imperfections into them. Schwartzberg argues framing debates about precommitment in terms of constitutionalism versus democracy or reason versus passion is a misleading practice: the (democratic) revision of basic constitutional law is a “critical activity” and is therefore inherently reasonable.14

Although Schmitt does not offer any direct response to Schwartzberg’s criticism of the assumption of an inherent reasonability of constitutional entrenchment, there are some implicit responses. First, militant democracy only defends an extremely narrow core of the constitution against democratic change. It does not undermine a democracy’s ability to grapple with changed circumstances. It is misleading to describe militant democracy as profoundly undemocratic simply because draws a few fundamental limits to democratic will, simply because it denies amending democracy or the freedom of speech out of existence. Some have even argued that providing for a minimal constitutional core is enabling, not disenfranchising. Thus, the range of democracy is still very rich in militant democracy. It is a mistake to conflate the entire constitution with the narrow scope of the changes militant democracy and precommitment prevent against.

Moreover, the precommitment to that narrow core is not the product of a rash decision from a highly charged, polemically opposed assembly seeking compromise in a turbulent time. Neither is it a recent political experiment or innovation. The realization that democracy can be tyrannical and that tyranny should be guarded against is as old as political theory. And guarantees of legal

12 Schwartzberg, Democracy and Legal Change, 200ff. I thank Nadia Urbinati for pressing me to respond to this point. 13 Schwartzberg, Democracy and Legal Change, 201. 14 Schwartzberg, Democracy and Legal Change, 193.

Page | 234 Leviathan Run Aground: Conclusion protections against the state and against a politicized majority are nearly as old. Schwartzberg’s arguments do not seem to apply to the narrow constitutional entrenchment militant democracy seeks – they are neither the product of hasty constitutional assemblies nor the irrational experiments of constitutional framers. They are the product of the slow accumulation of human political wisdom over the course of millennia. Liberal democracies are not going to reverse on the legitimacy of basic individual freedoms like religion and speech and the value of democracy itself, when it is not turned on those basic individual freedoms.

Schmitt’s does respond to the objection that the constitution merely locks in a positive instantiation of a moral principle, not the moral principle itself. Schwartzberg formulates the objection by arguing that the constitution does not “protect these moral concepts themselves but the positive instantiation of them, which is the product of a constituent assembly.” This (positivistic) separation of law and morality may make sense in the abstract, but when one looks at the actual constitutional provisions that are guaranteed by militant democracy, it falls apart. Schmitt’s argument, that the core of the constitution, the Absolute Constitution, and the preamble to a constitution stand at a bridge between law and politics, rings true. Consider for example Article 1.1 and 1.2 of the Bonn Grundgesetz: “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” Although it is a concrete constitutional law, it is also clearly a (abstract) moral principle. And it clearly aims at human dignity in terms of the liberal democratic ideals, laid out by subsequent articles in the Grundgesetz. And while Schwartzberg is correct to argue that the further legislations or judicial interpretations based on the constitution may be imperfect or undesirable, these further concretizations are not closed to legal change (or judicial revision) like the Absolute Constitution is. It serves to guarantee human rights and demand an articulation of what human dignity means. While there is latitude in the substance of that articulation, it does prevent legal interpretation of a constitution opposed to human dignity. A constitution is more than the positive instantiation of moral principles. The aim of theorizing the Absolute Constitution is to prevent the sort of Relativization that conceives of its core values as merely positive law open to infinite revision and interpretation.

Militant democracy “locks in” the qualities of democracy that are essential to the spirit and logic of democracy – democratic procedures and individual rights that guarantee individuals the possibility to freely formulate political values and practices. Thus, the objection against militant democracy for presupposing the rationality of the founders can be reversed: the rights guaranteed by its extreme precommitment are guarantees of a meaningful democratic process, and best realize the spirit and logic of democracy by ensuring it not become its pathological form while minimally constraining its ability to create and revise its laws.

Schmitt shows framing discussion of entrenchment in terms of precommitment versus non- precommitment, authority versus freedom and neutrality, creates a false polarity. Schmitt argues it is actually a question of which political principles ought to be committed to not whether there

Page | 235 Leviathan Run Aground: Conclusion should be precommitment in the first place. That is, he shows us that this debate is actually about a basic decision between two antithetical commitments: basic rights or democratic malleability. These two commitments can and will peacefully coexist with one another under normal circumstances. But their logical tension can explode into actual conflict, which happened in Weimar. When this happens, a decision between the two becomes necessary. Schmitt’s theory identifies the argument that democratic states ought to decide on a precommitment to democratic revision as actually a commitment to functionalist value-neutrality and therefore a commitment to a Relative Constitution.

As discussed in the last chapter, Schmitt thinks the committing to functionalist value-neutrality is not actually a defensible form of precommitment for two reasons. On the one hand, many proponents of democratic neutrality – despite what they argue – actually stop short of compromising the core of democracy, understood to include basic rights and democratic revision itself. Insofar as this is the case, they only disagree with Schmitt superficially. On the other hand, Schmitt argues that those arguments deeply committed to democratic revisionism are incapable of generating an overlapping consensus.15 That is, positivism cannot be a legitimate foundation for a state because, in the end, it becomes no more than a means for one segment of society to dominate the other using legislation. In both cases, Schmitt argues that in mass democracy the principles of functionalist value-neutrality and equal chance could neither realize political stability nor generate an overlapping consensus.

Regarding the first argument, Schmitt believed many defenders of the Relative Constitution would be unwilling to follow their own arguments to their logical conclusion in exceptional cases. That is, they would concede that, should 75% of a population elect an antidemocratic, illiberal, racist party, that party would not be a legitimate ruler nor would any subsequent constitutional “revisions” abrogating democracy and liberalism be legitimate laws – even if that party adhered to the functionalist constrains of constitutional amendment law. Schmitt used Richard Thoma as an example, who had first criticized Schmitt’s arguments to limit the exercise of Article 76 based on Weimar’s Absolute Constitution but then admitted alterations to the

15 David Dyzenhaus has argued there are some similarities (amidst substantially differences) between John Rawls and Carl Schmitt. Rawls, too, admits militant democratic mechanisms are legitimate in exceptional states. He argues that constitutions have a right of self-preservation, that “justice does not require that men must stand idly by while others destroy the basis of their existence.” (John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1999), 192; John Rawls, Political Liberalism (New York: Columbia University Press, 1996), xviii-xix.). And he argues that antidemocratic and illiberal movements have no right to complain when they are denied basic liberties (Rawls, A Theory of Justice, 190.). But, differently from Schmitt, he qualifies that liberals ought to withhold rights only when political stability or security themselves are endangered (Rawls, A Theory of Justice, 193.). The most important overlap between the two is Rawls presupposition that all citizens within a liberal state embrace “the rules of the game”; all must accept the essentials of liberal democracy. Thus, total movements existentially opposed to and seeking to overthrown political liberalism (“unreasonable” comprehensive doctrines) should be stopped when they become a threat to political order. Rawls and Schmitt obviously were very different thinkers, from very different traditions, writing to address very different circumstances. But these differences make their overlap on this basic issue all the more interesting.

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“sacred” principles of liberal democracy would be inadmissible no matter how popular a majority seeking them was.

Today, defenders of democracy may actually draw the line when democracy becomes a threat to itself and admit that democracy’s “self-consumption” is not a legitimate instance of popular sovereignty. In these cases, their disagreement with militant democracy is superficial either because that defender was reluctant to admit authoritarianism was sometimes necessary or for a lack of logical rigor. Another case of superficial disagreement is between normative definitions of democracy and militant democracy.16 Defining democracy normatively puts the same sort of practical restrictions on legitimate democratic activity as militant democracy does – even if it does not restrict political participation outright, it does restrict certain outcomes of participation. So participation is effectively limited, since participants seeking or producing “illegitimate” or “undemocratic” outcomes have no political recourse through “democratic” institutions. The substantive difference between normative definitions of democracy and militant democracy seems to be that the former is implicit whereas the latter is explicit. But practically both have the same impact on the democratic process.

Schmitt’s second argument is addressed to those deeply committed to democratic malleability or “functionalist value-neutrality.” He argues that “functionalist value-neutrality” is undecided about where its value commitments actually lie. Either the ability to modify law democratically is that constitution’s entrenched principle or not even democracy is a commitment. In the first case, the constitution is Relatived, with its “highest” value being institutionalized through its amendment article. Democratic malleability is the deepest constitutional commitment – in which case the constitution is the decision for the Relative Constitution. This position is actually a form of precommitment. It is just not a very strong form of precommitment because it simultaneously commits to the negation of its “deepest” commitment – begging the question of what “commitment” actually means here.

The alternative is that “functionalist value-neutrality” actually holds that no principle, not even democratic malleability, is inviolable. Here, that the state has taken the form of liberal democratic form today is wholly accidental. This position is an extreme form of positivism – where the existence of the legal procedures in effect at a given moment are all that is necessary to determine legitimacy. Democracy is legitimate now because it happens to be in effect. But should democracy be overcome by another state form through its democratic amendment procedures, this new state form – whatever it is – is as a legitimate as what preceded it. But, if

16 I take a non-normative definition of democracy to be something like the following: “a method of group decision making characterized by a kind of equality among the participants at an essential stage of the collective decision making.” Tom Christiano, "Democracy," in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (2008). Normative definitions of democracy restrict the outcome of democratic procedures. An example is Habermas’ argument that the laws passed through democratic procedures must respect the system of rights that “constitutes a minimum set of normative institutional conditions for any legitimate modern political order” – i.e. that democracy necessarily includes rights. James Bohman and William Rehg, "Jürgen Habermas,"ibid. (2011).

Page | 237 Leviathan Run Aground: Conclusion this is so, it begs the question: does it then matter whether democracy is constrained by some other constitutional limitation? Why be concerned about democracy at all except for fact that it happens to be enacted at the present moment?

Extricating these two positions from one another is difficult. Both Kelsen and Schwartzberg argue that amendments to any articles or aspects of the constitution, including to democratic amendment procedures themselves, are legitimate because of a “commitment” to something like democratic mutability and to unrestricted legal change. Thus, they would argue for example that, as long as a party legally adheres to the procedures necessary to amend all democracy and rights out of a constitution and replace them with a fascist state, these actions are politically legitimate.17

When the theoretical commitment to absolute democratic malleability is rigidly upheld and made the foundational values of the constitution, it can clearly be used to undermine both the constitution and that “commitment.” This is a logical possibility and one that Kelsen recognized even before it became a reality in the case of Weimar. But what does the word “commitment” mean legally and normatively if it is not really a commitment to anything at all? This interpretation of the constitution is incapable of and does not even try to preserve itself – which seems inconsistent with the idea of constitutionalism. And if the commitment to mutability through an amendment procedure can be turned on itself, then not even that commitment can be said to be constitutive of the constitution. This commitment suffers the same defects that Schmitt pointed out in the Relative Constitution.

Kelsen, with “moving words,” famously wrote that “One must remain true to his colors, even when the ship is sinking, and can take with him into the depths only the hope that the ideal of freedom is indestructible and that the deeper it has sunk, the more passionately will it revive.”18 But how are we to make sense of this claim? Is democracy actually a value or is it an accidental form of the state? Kelsen’s reluctant tone suggests democratic malleability is actually a deep commitment for him and that an undemocratic state would somehow be illegitimate – even if established democratically. But his positivism compels him to accept that whatever changed legal situation arises out of democratic revisions is equally legitimate. But if an anti-Semitic, pseudo-fascist totalitarian state was produced through democratic amendment procedures, would someone following this argumentative chain admit to its political and legal legitimacy? Schmitt directed this question, sotto voce, at Kelsen in 1971. Given what we know about Kelsen’s history,

17 Because of their strictly procedural focus, the “content” of those procedures (even the realization of a polity totally lacking in democratic legitimacy) is legitimate according to their definition. 18 Kelsen, Hans. Die Verteidigung der Demokratie (1932), Cited in Arthur J. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2002), 74.

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Schmitt assumed he probably would have answered in the negative – but what does this say about Kelsen’s democratic relativism?19

It seems the only way to make sense of a commitment to functionalist value-neutrality is to interpret it as a “positive” commitment – as both Schwartzberg and Kelsen ultimately seem to have done. But the positivistic commitment to an exercise of democratic will holds regardless of its outcome. The state becomes nothing more than an exercise of “sic volo sic jubeo”: the “I want, I command” of an arbitrary will. And the state is thus mechanized, becoming nothing more than an instrument of (democratic) domination. Besides the well-known problems of political domination, this argument seems particularly irresponsible in an age of mass democracy. Here, private, indirect powers utilize their powerful psycho-technical means to manipulate the masses and “democratically” legitimate their interests. Schmitt argued such a state is no longer even a case of democratic domination but merely the subtle political domination of private powers ruling from the darkness of what he called the antechamber to power. He argued throughout his career that positivism and functionalist value-neutrality cannot serve as a stable political basis for the state. They offer no real foundation for a state or constitution. Facticity alone, even when it is the facticity of overwhelming numbers, does not create legitimacy or right. d. Democracy as Procedure versus Democracy as Status

Schmitt’s criticism of the “functionalist value-neutrality” of unconstrained democratic proceduralism can be understood in a different way. The problem he raises could be reframed as the question of whether 20th century democracy should be understood as a procedure or as a political status. I have discussed in earlier chapters how Schmitt argued that every political body must be grounded in some neutralizing political status: for a political community to have lasting legitimacy and stability, there must be general overlapping agreement or consensus on the basic principles that underlie its institutions. This shared commitment is the fundamental basis for political and constitutional legitimacy, defines the terms of Friendship within the community, and depoliticizes other identifies so they do not erupt into violent conflict. His criticism of Weimar’s functionalist value-neutrality is in part a critique of his contemporaries for mistaking Weimar’s state form, parliamentary democracy and its accompanying legislative procedures, for its political status. Their positivistic worldview had led them to conflate procedural legality with substantive legitimacy. Schmitt’s theory of the Absolute Constitution, and his arguments that Weimar needed to shift the theoretical core from the First to the Second Principal Part of its constitution, was his way of updating state theory to deal with the centrifugal effects of modern mass democracy and positivism. That is, although he believed the triumphal march of democracy could not be avoided, this did not mean resigning to a tyrannical majority whenever one arose.

19 Obviously Schmitt too was incoherent and ought to be held to account for that. But, as I have shown, I believe Schmitt’s theory can be fixed by jettisoning Schmitt’s practice. It seems to me, however, the opposite solution is needed in the case of Kelsen: his practice can be fixed by jettisoning his theory – not the other way around.

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They could be contained by making an authoritative status commitment that constitutionally “trumped” the positive legal procedures its state form employed.

For Schmitt, understanding democracy as a status meant theorizing it as more than a state form. If a state was to have lasting legitimacy, its democratic legislative procedures could only be conceived of as a superstructure resting on the foundational values of that community. It must be linked to some neutralizing status that could create political legitimacy, Friendship among its citizens. Democracy could even be conceived as a status – but it meant theorizing what values were required for “democracy” to generate that community and its neutralizing status in the first place. Schmitt argued democratic procedure alone was insufficient to do this. But a commitment to basic rights could be that status and those values. Thus, a legitimate democratic state had to be erected on a foundation of basic rights, an Absolute Constitution, that denied the most pathological forms of democratic tyranny. A state committed to its status would remain a Leviathan.

2. Beyond Schmitt

Schmitt’s state theory is only a starting point for theorizing democracy as a status or for theorizing militant democracy. There are clear problems with it. I already discussed Schmitt’s inexplicable categorization of equality before the law as a political and not a basic right and therefore one which need not be guaranteed. Obviously, equality before the law must be conceived as a basic right for the protection of an isolated individual from state interference (thereby meeting Schmitt’s own definition of what ought to be a guaranteed right and included in his definition of a liberal democratic Absolute Constitution). Kelsen’s critique of Schmitt’s theory of the guardian of the constitution shows some further problems with Schmitt’s state theory. Another problem is what has changed in the political composition of states since Schmitt constructed his state theory. Schmitt often quoted Heraclitus’ remark that one cannot step in the same river twice. Certainly political problems of the 21st century are not the same as they were in Weimar and whatever can be retained from Schmitt’s state theory would need to be updated to deal with contemporary problems. a. Kelsen’s Critique of Schmitt

Schmitt’s state theory sits at the extreme right of the political spectrum between authoritarianism and democracy. He was so disillusioned by democracy’s failure in Weimar that he came to believe no democracy could be as reliable as a singularly powerful and virtuous ruler. He accordingly sought to (re)unite political responsibility with political power and restore political community and the classical sense of constitution in order to overcome the instability caused by mass capriciousness and private selfishness. He was so alarmed by mass pathos and by the abuse

Page | 240 Leviathan Run Aground: Conclusion of political rights, he was blind to the potential for abuse his own solutions had.20 He did not think about how difficult it would be to guarantee power, virtue, and knowledge were united in a single governor. Precisely because Schmitt’s state theory is such an extreme solution to the problems of democratic extremism, it ends up summoning one demon to fight another.

It is in this vein that Kelsen criticizes Schmitt’s discussion of the guardian of the constitution. Kelsen argues Schmitt is so fixated on threats to the state arising out of parliamentary democracy he ignores similar threats that executive empowerment presents to the state.21 However naïve it is to believe democracy cannot be tyrannical, pathologically irrational, or simply disingenuously manipulated, Schmitt’s solution is no less naïve in believing the same about the executive branch. Whether the guardian of the constitution is parliament or a president, Kelsen argues the question “who guards the guardian?” must be asked.22 Schmitt does not seem to have asked it about his idealized Reichspräsident. He argues that Schmitt upsets the balance of power necessary to a Rechtsstaat by fusing normal executive functions with the authority to determine constitutionality under both normal and exceptional circumstances. In doing so, Schmitt undermined parliament as an institution capable of checking the executive and left no basis to control it if it failed to defend the constitution authentically or abused its powers. In the end, while it was legitimate to limit parliamentary democracy for the sake of stability, it was not legitimate to totally undermine its ability to counterbalance the executive in the process.

Schmitt had theorized the organizational principle of the Rechtsstaat, checks and balances, as a binary balancing scale because he conceived of the judiciary as a mindless extension of the legislative branch, which he dismisses as “en quelque façon nulle.” The only way he thought the legislative could be counterbalanced was by increasing the “weight” of the executive. So Schmitt tips the balance of power in the other direction, risking a tyrant to defend against a tyrant. Instead, Kelsen argues that the guardian of the constitution should be a body that does not wield power directly.23 The judiciary, already at a disadvantage in the balance of power, could offset the troubled relations between executive and legislative and the ideals of the constitution. Kelsen thus argues the judiciary was the branch best suited to act as guardian of the constitution.

Kelsen’s proposal was intended to solve two problems of democratic states at once. First, it would further the ideal of a balance power by offsetting the power of both the executive and legislative with the third branch and move beyond conceiving of internal checks and balances in terms of a simple binary scale. In addition, insofar as the constitution does institutionalize the political status, the branch of government most suited to making rational deductions regarding that status is the judiciary. Ultimately, decisions on constitutionality involve weighing the political “status” against acts of parliament that are intended to concretize that status further. The judiciary is most competent, because of its specialization in the law, to cross the hiatus

20 William E. Scheuerman, Carl Schmitt: The End of Law (New York: Rowman & Littlefield Publisher, Inc., 1999), 107. 21 Hans Kelsen, Wer Soll der Hüter der Verfassung Sein? (Berlin-Grunewald: Dr. Walther Rothschild, 1931), 11-12. 22 Kelsen, Wer Soll der Hüter der Verfassung Sein?, 49. 23 Kelsen, Wer Soll der Hüter der Verfassung Sein?, 5-7.

Page | 241 Leviathan Run Aground: Conclusion irrationalis and rule on what a legitimate concretization of norms is.24 This deductive process is already a part of the normal behavior of the judiciary. Moreover, he argued that courts were best suited to juridically define the meaning of core existential terms like democracy, justice, equality, and constitutional.25

Schwartzberg, in her criticism of precommitment, is worried by theories like Kelsen’s that empower the will of any branch over popular sovereignty.26 She singles out judicial review for being undemocratic. But this argument does not seem to sufficiently account for the theory behind checks and balances on power. Insofar as the liberal democratic Rechtsstaat limits arbitrary and pathological power, equipping the judiciary against both expressions of popular sovereignty in the legislative (either parliamentary or plebiscitary democracy) and executive is not only reasonable but even realizes a more virtuous form of democracy. The denial of the legitimacy of checking democratic malleability is a denial of the legitimacy of this constitutional ideal. But when popular sovereignty becomes tyrannical, some other institution must be capable of reining it in constitutionally. Kelsen writes that courts naturally exercise a ‘repressive objective function of legality.’27 Courts test the legitimacy of law and repress those laws that are incoherent with the constitution. It makes sense for democratic states to have the constitutionality of legislation reviewed by a deliberative and independent institution nestled within an effective balance of power system.

Kelsen suggests his debate with Schmitt over the proper guardian of the constitution is ultimately a question of politea versus nomoi: should Weimar be governed by a virtuous expression of popular sovereignty (politea) or the ideal of the rule of law (nomoi)? Kelsen seems to argue that having the guardian be established on a democratic basis, either in its parliamentary (i.e. the legislative) or plebiscitary (i.e. the executive) form, was ultimately the hope for politea. But he continued that, rather than explicitly grant the right to make “hard” decisions to a branch of government, even if it were democratically legitimated, the best state form buried them in the rule of law – and the best way to approximate this ideal was to establish the judiciary as the guardian because of its limited power and limited capacity to only make “soft” decisions on the concrete nature of that “Absolute Constitution.” Contrary to what Schmitt had argued, nomoi meant the executive should not guard the constitution. Kelsen argued instead that, if there should be a guardian of the constitution, it ought to be the judiciary.28

A further and somewhat glaring problem with Schmitt’s arguments for the president as the guardian of the constitution was that, in the case of Weimar, the guardian ought to have been President Hindenburg. A Platonic complete guardian, which seems to have been Schmitt’s model

24 Kelsen, Wer Soll der Hüter der Verfassung Sein?, 15, 19, 45. 25 Kelsen, Wer Soll der Hüter der Verfassung Sein?, 17, 24. 26 Schwartzberg, Democracy and Legal Change, 182ff., 187ff. 27 David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford: Oxford University Press, 1997), 151-152. 28 Kelsen, Wer Soll der Hüter der Verfassung Sein?, 24-27.

Page | 242 Leviathan Run Aground: Conclusion for the guardian of the constitution, presupposes the marriage of perfect wisdom and perfect power. Yet therein lay the problem. Hindenburg, as Schmitt conceded, had no clue how to uphold his oath, even if he was well-intentioned. He was probably more manipulable by indirect powers than Weimar’s masses were, as Schmitt himself seems to have later admitted.29 Hitler, who assumed Weimar’s guardianship next, demonstrates a far worse possibility for executive guardianship: when invested in a vicious person, that much power and responsibility is the worst outcome of all – far more dangerous than overheated democracy. Even Plato, after the Republic, was wise enough to realize that the likelihood of this perfect marriage was nearly impossible and that the next best thing to it was legal entrenchment and “the rule of law” not “the rule of man” in any form.30 And Plato also recognized that, even if the best government was virtuous rule by one individual, the worst was its mirror: vicious rule by one individual. How one could distinguish between the two individuals was one of the fundamental questions of political philosophy. The only certain solution seemed to be to circumvent having to make that distinction by entrenching the authority of the law. Unlike Plato, Schmitt did not seem to come to this realization, clinging instead to a romantic notion that the state could indeed be an imperium rationis and that, in the worst case, a complete guardian would be able to guarantee that order. b. Militant Democracy Today

There are relevant differences between the political situation Schmitt responded to in the early 20th century and those the world faces today. Political and constitutional thinkers today seem to agree that the principles of militant democracy in the abstract remain important for the practice of liberal democracy today. Nancy Rosenblum, for example, writes the exercise of militant democracy is at times justified.31 Similarly, Patrick Macklem writes that the European Court of Human Rights has identified that states may legitimately obstruct certain political projects in order to preserve democracy.32

Yet, although the problems militant democracy was designed to contain have not totally disappeared from contemporary politics, militant democracy cannot be simply be dropped onto states and constitutions today and expected to work unproblematically. Despite describing cases where militant democracy is legitimate, both Rosenblum and Macklem question the extent to which it neatly maps onto the problems threatening states today and, by extension, the limits of the legitimate application of militant democratic principles once the threat of physical violence to states has been overcome.33 When it originated, militant democracy was framed by the question of “what counts as a sufficient existential threat to the liberal democratic constitution?” Today,

29 Carl Schmitt, "Im Vorraum der Macht: aus einem Gespräch über den Einfluß auf den Machthaber," Die Zeit, July 29 1954. 30 Plato, Statesman, trans. Robin Waterfield (New York: Cambridge University Press, 2005), 63-70 (297b-301d). 31 Nancy Rosenblum, "Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies," Law & Ethics of Human Rights 1, no. 1 (2007): 21ff. 32 Patrick Macklem, "Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe," Constellations 19, no. 4 (2012): 577. 33 Rosenblum, "Banning Parties," 23; Macklem, "Guarding the Perimeter," 587.

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Rosenblum argues, it should instead be framed by the question of “what constitutes a sufficient attempt to change the relationship of church and state or to undermine the secular religiously neutral state?”34 Factionalism in the 21st century is characterized by the fact that potential threats to the liberal democratic state no longer present themselves exclusively as secular worldviews. Factionalism has become religious once again. And the repoliticization of religion has changed how liberal democratic states can legitimately respond to factionalism without compromising their deepest commitments. Rosenblum is rightly concerned about how bans on political parties can be abused to undermine the core values of the democratic state by inviting discrimination and exclusion against religious organizations and movements.35 She worries about cases where a party does not neatly conform to liberal democratic ideals (even if it is not a threat to liberal democracy) and states use this non-conformity as a basis to deny that party political rights. In the setting of 21st century religious repoliticization, moves to ban “illiberal” or “undemocratic” religious parties can fuse legitimate concerns with sophistry, xenophobia, and outright discrimination.36

The use of militant democratic institutions to stifle non-revolutionary parties (i.e. parties that may be religious in nature but have no antidemocratic or illiberal political aims) is among the most troubling abuses of militant democracy. There is a profound difference between depoliticized and politicized religious parties and movements. Parties, including religious parties, seeking a democratic majority to constitutionalize their illiberal and antidemocratic values are no longer fundamentally committed to the rules of the game – that is to a liberal democratic constitution. But not all religious parties fall under this category. The German Zentrum party, for example, emerged in 1871 as Catholics and Catholic institutions recognized they, as minorities, needed a political voice to guarantee their liberal basic rights were protected from political interference. The legitimacy of the application of militant democracy will hinge on its ability to reliably make this distinction – if it must make it at all.

Jan-Werner Müller notes another significant change between the early 20th century and today. Especially in the West, illiberal and antidemocratic movements now try to subvert the state using violence from without it rather than compete for power within democracy. As long as movements remain external to democratic processes, militant democratic institutions are superfluous to the defense of the core commitments of democratic states. Constraining democracy to preserve the core of the constitution only makes sense when parties threaten from within. Yet, in response to external threats, Western democracies have employed “militant democratic” institutions to create a sort of “state of siege” to defend themselves. These threats are novel because they tend to be non-state actors taking advantage of new and porous borders. Not knowing how to respond to them, states have responded with every means at their disposal – including quasi-totalitarian mechanisms “legitimated” in a logic that resembles

34 Rosenblum, "Banning Parties," 61. 35 Rosenblum, "Banning Parties," 59-60, 71. 36 Rosenblum, "Banning Parties," 71ff.

Page | 244 Leviathan Run Aground: Conclusion militant democracy’s. And the depth and extent of this response has been alarming for liberal democratic commitments.

In the United States, phenomena like the Patriot Act and the NSA’s unrestrained surveillance show extreme cases of the capacity of the state’s authority to be abused. The fear of terrorism was manipulated by the state, particularly the executive branch, to obtain widespread public and Congressional support for a broadened police state, through legislation like the Patriot Act, and to authorize a war and military actions wholly unrelated to 9/11. Although the NSA and CIA argue they have successfully anticipated and prevented terrorism because of their broadened powers, it is unclear whether they have achieved this and at what cost this success has come without any meaningful oversight, especially in terms of the systematic violation of basic rights. Because both of these examples emerge out of acts passed to limit constitutional freedoms for the sake of defending democracy, they could be construed as cases where militant democracy has gone awry. Certainly, both are examples of the democratic state no longer acting for the sake of its stated ends because it has sacrificed its core values, especially basic rights. The Bush Administration in particular has shown that “the state” is no less capable of disingenuous manipulation of mass emotions than indirect powers. The NSA and CIA show the state’s direct power may be no more a “friend” of constitutional ideals than the private indirect powers militant democracy ought to be preventing. And these examples demonstrate the ease with which the state can trample the very rights it ostensibly guarantees and protects – showing how important it is to have institutional checks and balances on the execution of whatever “militant democratic” institutions are deemed necessary.

Neither of the above examples is a convincing case where a democracy must constrain democratic constitutional values for the sake of preserving its deepest commitments. It absolutely sacrifices the state’s existential-transcendental commitments to absolutely guarantee the material need for security. In doing so, it sounds like a mechanized state. Using a tool designed to stop revolutionary political parties from abusing political rights and democracy for another end is disingenuous and demonstrates the threat the state itself can present to democracy and liberalism. In an age of mass democracy, the state’s value consists in its ability to balance against private powers – but once the state can decisively trump all private power it becomes a threat that must itself be contained. Those examples above highlight the tendency of state, and especially executive, power to expand and take advantage of a twisted version of the normative power of the factual. Thus, in addition to “indirect powers,” the state too can be a dire threat to “Liberté” that must be guarded against. The state, no less than revolutionary extremists, can become an Enemy of a liberal democracy’s political status.

But, pace Müller, some enemies of liberal democracy still do seek to revolutionize those states “from within” too. The types of extremism to which Schmitt responded with his Absolute Constitution are undergoing a revival today. Across Europe, right-wing populism is exploiting its

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“democratic legitimacy” to try to undermine the rights of whichever minority it fears most.37 While different in many ways, these are relevantly similar cases to the cases of extremism encountered in Weimar. Schmitt’s arguments can be mapped onto these cases and will continue to do so as long as extremism possess the will to politically mobilize and consciously or unconsciously adopt Leninist approaches to revolution.

In addition, pace Rosenblum, some politicized religions do threaten liberal democracies from within today. In the United States, for example, Christian movements seeking to undermine liberal values and “restore” a Christian state invoke popular support in the efforts to weaken and outright throw out the Establishment Clause. They are representative of a general tension between democratically popularized religion and liberalism. These movements raise Schmitt’s questions about constitutionalism in a new format: would a substantive revision to “the principle of non-establishment, which prevents religious groups from using state power and authority to impose their views on the rest of us or to help enforce their special laws on their members” be a legitimate political goal for a liberal democratic state?38 Were two-thirds of US Congress to propose such an amendment, which was then ratified by three-quarters of states, would that be an amendment to a liberal democratic constitution or would it have changed the nature of the constitution itself in a revolutionary way?

Political theorists today have rightly suggested that the principle of non-establishment alongside constitutional protection for the liberty of conscience and free exercise of religion determines the legitimate or valid political ends of a liberal democratic state.39 The use of terms like legitimate and valid imply that, even if a religiously oriented democratic super-majority was capable of satisfying the legal requirements of constitutional emendation to incorporate, say, its goals of “salvation” into the state’s end, there would still be something substantively illegitimate about its actions: such an amendment would be incoherent with the basic commitments of liberal democratic states. In such a case, Schmitt’s arguments show that militant democracy would be justified in stepping in and denying the party or parties driving this movement its political rights and the substantive illegitimacy of such an amendment, popular or otherwise. Ideally, this hard case will never arise. But it is a possibility inherent to any constitution that contains basic rights and popular sovereignty and has not established the relationship between these two distinct principles. Hard cases like that force a decision between “liberalism” and “democracy,” between the Absolute and Relative Constitution. They force liberal democrats to decide whether militant democracy or democratic revolution best aligns with their core values. In those cases, Kelsen

37 Examples include Norway’s Fremskrittspartiet, Finland’s Perussuomalaiset, Denmark’s Dansk Folkeparti, The Netherland’s Partij voor de Vrijheid, Germany’s Partei Rechtsstaatlicher Offensiv, Austria’s Freiheitlichen Partei Österreichs, Italy’s Lega Nord, Hungary’s Fidesz Party, and Greece’s Golden Dawn. 38 Jean L. Cohen, "Political Religion Vs Non-Establishment: Reflections on 21st-Century Political Theology: Part 1," Philosophy & Social Criticism 39, no. 4-5 (2013): 446. 39 For a recent example, see Cohen, "Political Religion Vs Non-Establishment," 445, 449; Jean L. Cohen, "Political Religion Vs Non-Establishment: Reflections on 21st-Century Political Theology: Part 2," Philosophy & Social Criticism 39, no. 6 (2013): 512, 516.

Page | 246 Leviathan Run Aground: Conclusion argued he would rather “go down with the ship” – even if an amendment undermines the core values of liberal democracy, the state “precommitted” to accept the outcome of a democratic amendment procedure. Schmitt stood against this position, arguing that it was politically irresponsible to condone constitutional amendments revolutionizing the state; the liberal democratic state’s deepest commitment cannot be to an amendment procedure. The basic decision for the essence of the liberal democratic state must be for fundamental rights.

Yet while militant democratic limits to popular sovereignty are undoubtedly essential to the legitimate practice of democracy, the authoritarian power to decide on “constitutionality” can replace one vice with another. The dilemma is how to find the virtuous state form nestled between two vicious ones. Value-neutral democracy risks the tyranny of the majority – or the tyranny of those best equipped to manipulate and exploit the majority – arising from below. Militant democracy risks the tyranny of the state from above. The collapse of Weimar exemplifies the former. But the dangers of the latter are also clear, as exemplified by McCarthyism. In face of this dilemma, I am tempted to agree with Rawls: it is a practical dilemma which philosophy alone cannot resolve. The right of the state over the people to decide on what “counts” as democracy should be drawn. But where it should be drawn may not be formalizable. Eventually, this dialectic returns to Schmitt’s defining question: quis judicabit? Who decides what the constitution means and how to concretize it?

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Appendix

I. In a 1961 letter to Norberto Bobbio, in which Schmitt congratulates him on his edition of Hobbes’ De Cive and mentions that he has been corresponding with Dorothy Krook of Cambridge about Hobbes, Schmitt also encloses an early version of the Hobbes Crystal that he drew for “some young philosophers.” This early drawing, printed below, includes some additional details that elaborate even more (confirming the above interpretation). It was first reprinted in Carl Schmitt, "Brief an Norberto Bobbio (21/1/61)," in Schmittiana: Beiträge Zu Leben Und Werk Carl Schmitts, ed. Piet Tommissen (Berlin: Duncker & Humblot, 2001), 359. It is also included in Carl Schmitt and Armin Mohler, eds., Carl Schmitt - Briefwechsel mit einem seiner Schüler (Berlin: Akademie Verlag, 1995). To the “above,” Schmitt adds that it is Offenbarung, a revelation or epiphany; that is, something that emerges out of nowhere and strikes one. To the “below,” Schmitt adds it is Immanenz, Immanence, or something that emerges out of individuals. Finally, in a postscript to Bobbio, Schmitt adds the following question. “The important question: Is 1-5 (that Jesus is the Christ) interchangeable or not? In Spinoza, it is of course interchangeable; also in Hobbes? [Die große Frage: ist 1 - 5 [that Jesus is the Christ] auswechselbar oder nicht? Bei Spinoza ist es selbstverständlich auswechselbar; auch bei Hobbes?]” Clearly, by 1963, Schmitt had decided the answer to this question was “yes” (at least for himself, if not for Hobbes too) as his Hinweise to The Concept of the Political forward several different veritates that may replace ‘Jesus is the Christ.’

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II. The three affirmations of Catholic civilization are, according to Cortés, “First, that an omnipresent, personal god exists. Second, a personal God, that is everywhere, reigns in Heaven and upon the earth. Third, this God, that reigns in Heaven and upon the earth, absolutely governs divine and human beings” (Cortés, Political Writings, 81). These theological qualities reflect into political order as a monarchy characterized by an omnipresent king (by means of his agents), who reigns over and governs his subjects absolutely. Cortés describes three negations corresponding to these affirmations. The first negation is deistic. While holding that God exists and is personal, it claims God cannot govern human affairs because God is removed from the world (Cortés, Political Writings, 81). For political order, it means that the king still reigns but no longer governs. This is the denial of sovereign exceptionality: the king is subordinated to the constitution. Cortés describes the second negation as pantheistic (Cortés, Political Writings, 82). Although god still exists, god lacks personal qualities. Instead, ‘god is humanity.’ This theology mirrors politically as the depersonalization of power. Power resides in the masses or the people as a whole instead of a tangible figure. The third negation is the denial of god; it is atheism (Cortés, Political Writings, 82). Corresponding to atheism is the annihilation of secular authority altogether. Because there is no higher order, there is accordingly no basis to legitimate any form of secular governance or authority. Spiritually, there is nihilism. This theology is mirrored politically as anarchy – all authority is replaced by individual self-rule.

Cortés political theological account can be depicted according to this table:

THEOLOGICAL/METAPHYSICAL → POLITICAL

1. An omnipresent and personal god exists The king is personal and omnipresent 2. This personal god reigns over heaven and earth The king reigns over his subjects

3. God reigns absolutely The king governs his subjects

Catholic Catholic Affirmations

THEOLOGICAL/METAPHYSICAL → POLITICAL

1. Deism: God is so high/removed from the world that he The king exists and reigns, but governs does not govern (the world is automated) only through indirect legislation

2. Pantheism: God is not personal: he neither reigns nor Governmental power is dispersed governs but is instead immanent through the people as a collective 3. Atheism: There is no god, there is only matter Anarchy - there is no sovereignty or operating according to determinate and inherent laws rule; nor are there any definite

principles by which to orient oneself Enlightenment Negations Enlightenment

Cortés argues it is not accidental that one phase follows on the heels of another – in the end, they all spring from protestant denials of the sovereign nature of god originating in Luther’s declaration against the will and authority, and the possibility of an indeterminate history and future (Cortés, Ensayo, 176). This first denial naturally leads to the final atheistic denial.

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III. Schmitt mentions other examples of political theology (or politicized theologies) besides the typologies discussed above in the process of disenchantment/anakyklosis – indicating his own difficulties in formulating this process: METAPHYSICAL SYSTEM CORRESPONDING POLITICAL EXEMPLARY SOURCE FORM THEORIST(S) Occasionalism (Political) Romanticism Adam Müller Political Romanticism (16-20, cf. 7-8, (Schlegel; to a certain 148) extent Malebranche) Rationalism (Hegelian Marxism (Dictatorship of Marx The Crisis of Parliamentary Philosophy of History) the Proletariat) Democracy (106, cf. 64) Rationalism (Hegelian Rationalist Dictatorship Bonald, de Dictatorship (278); Political Theology Philosophy of History) (Catholic Rationalism?) Maistre, Görres, (53ff.) Cortés "Bergsonism" (Bergson Irrationalism (Sorel) Sorel (Lenin and The Crisis of Parliamentary (Nietzsche?)) - Bolshevism Mussolini are Democracy (66-68); State Ethics and - Fascism derivative) the Pluralistic State (197); Dictatorship (279) Pragmatism (William Pluralism Harold Laski State Ethics and the Pluralistic State James) (197, 204), The Turn to the Discriminating Concept of War (40)

Calvinism (God ~ Authoritarian State Hobbes Leviathan in the State Theory of Power) Hobbes (32-33); Three Types of Juristic Form (60-61) "Deistic Metaphysics" Rule of Rationality "The Dictatorship (84, 90) [The established through pre- Enlightenment"; formulations in Dictatorship are determined (i.e. formal) law underdeveloped and clumsy compared to what he later argues] Cartesian Metaphysics, The Formal Rule of Law Montesquieu, Dictatorship (88, 270); While Schmitt Malebranche's (esp. generality); the Rousseau insists the political theorists are Occasionalism corresponding need for a opposed (Voltaire, "the different institution to Enlightenment," and Montequieu), particularize the law this position and the above appear because "the state" can metaphysically almost identical. issue only universals Calvinism (Covenant Federalism (Federated Althusius Constitutional Theory (126) Theology) Homogenous City-States) "Romantic" Deism Unclear (Republicanism?) Rousseau Constitutional Theory (126) Spinozan Rationalism Republicanism; Doctrine of Abbé Sieyès, Dictatorship (123-125); The Legal (Natura Naturans - Sovereign Power (pouvoir Rousseau World Revolution (87); Constitutional Natura Naturata) constituant - pouvoir Theory (128) constitué) Philosophical Juridical Positivism Karl Bergbohm On the Three Types of Juristic Form Positivism (Comte) (64ff)

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