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Home , Authority, Carl Schmitt, Hans Kelsen, Otto Brunner, Political theology

Carl Schmitt. Political : Four Chapters on the Concept of . Chicago: University of Chicago Press, 2005. lii + 70 pp. $13.00, paper, ISBN 978-0-226-73889-5.

Reviewed by Christian J. Emden

Published on H-German (October, 2006)

There can be little doubt that 's emerged contemporaneously with the end of the : Four Chapters on the Concept cold war, Schmitt's theories continue to fall on of Sovereignty (1922) has turned out to be one of much fertile ground, even though most scholars the most important texts in modern political are cautious enough to point out that they do not thought--for better or for worse. In a broad attack share the implications of Schmitt's thought.[4] In‐ on both traditional theory and ‐ deed, Schmitt himself--despite his rhetoric of sophical , Schmitt seeks to ground the Eigentlichkeit, his rhetoric of expressive authen‐ political order of the modern state in what has ticity--was well aware that his own thought was in aptly been called a "metaphysics of existence."[1] many ways marked by the political surroundings Postulating a structural analogy between jurispru‐ of the early 1920s. Only a few years after its inau‐ dence and theology, Schmitt introduces a concept guration, the Weimar had proved in‐ of sovereignty that is not derived from basic con‐ creasingly fragile. While external political and so‐ stitutional norms, as in the case of left-liberal le‐ cial circumstances made it difcult to realize gal scholars in Weimar like . many of the central constitutional provisions, and [2] Instead, Schmitt defnes sovereignty almost ex‐ while the presumed unity of the new German clusively from the perspective of the state of state after the First World War was threatened by emergency--"the exception," as he notes (p. 5). Po‐ a great variety of interest groups and radical po‐ litical order, in words, cannot be safeguard‐ litical parties, many scholars of in Ger‐ ed by constitutional provisions, but by an extra-le‐ many were critical about the validity of the con‐ gal , that is, by that which by defnition stitutional provisions.[5] In contrast, for instance, cannot be part of constitutional arrangements to Kelsen, whose neo-Kantian led (pp. 7, 11-12).[3] him to assume that constituonal order could be Given the much-discussed crisis of liberalism derived from a "basic norm" entirely void of any in the late twentieth century, which ironically actual political content, Schmitt opted for a radi‐ calized version of the Hobbesian paradigm: em‐ H-Net Reviews phasizing that the authority of the state is based was published last year, these realities had on the "exception" and on the sovereign's "monop‐ changed once again. Schmitt's thought proved to oly to decide," he concluded, "authority proves be enormously adaptable and, after September that to produce law it need not be based on 11, was repeatedly used to show how central "con‐ law"(p. 13) With this step Schmitt distanced him‐ cepts of public law change under the impact of self both from and from Kelsen, political events," as he put it in 1922 (p. 16). whose position he attacked in much detail in Po‐ Seen against this background, the new edition litical Theology (pp. 18-24).[6] of Political Theology is noteworthy more for It is interesting to see, of course, that the frst Stong's new foreword, running over 29 pages, edition of Political Theology was published short‐ than for the translation itself. As far as I am ly after the showed signs of aware, the translation has not been revised or up‐ distress and that the slightly revised second edi‐ dated in any way and is identical to the 1985 edi‐ tion, published in 1934, came out after a series of tion. Schwab follows Schmitt's German with much political events that had entirely dissolved the accuracy and delivers an elegant translation that constitutional provisions of the : leaves nothing to be desired. The translation itself the "coup against " in 1932, the Nazi is based on the second German edition of seizure of power in 1933, and the so-called Röhm Schmitt's text from 1934, which notoriously omits Putsch of 1934, which allowed Hitler to eliminate some passages from the 1922 edition, in which any competition for power within the NSDAP.[7] Schmitt cited favorably from the work of the Ger‐ The disappearance of the Weimar Republic man-Jewish legal scholar Erich Kaufmann (p. 1) At frames Schmitt's theoretical speculations about the same time, it is important to note that Schmitt the origin of political order. As he noted himself: does not (not even in his foreword to the 1934 edi‐ "When theories and concepts of public law tion) explicitly endorse the National Socialist change under the impact of political events, the movement. Schmitt's precise relationship to the discussion is infuenced for a time by the practical National Socialist establishment, together with his perspectives of the day. Traditional notions are , is a matter of debate among Schmitt modifed to serve an immediate purpose. New re‐ scholars. Possible responses range from an out‐ alities can bring about ... a reaction against the right denial of Schmitt's antisemitism, as in Gopal 'formalistic' method of treating problems of pub‐ Balakrishnan's The Enemy (2000), to a reduction lic law" (p. 16). of Schmitt's thought as exclusively antisemitic, as Clearly, the German editions of Political The‐ in Raphael Gross's study on this subject.[9] ology were part of this process, but it is also inter‐ As is often the case, Schmitt's own position esting to realize that the same can be said with re‐ becomes much clearer once we take into account gard to its English translations. When George which understanding of public law he criticizes: Schwab's frst translation was published by MIT "liberal normativism and its kind of 'constitution‐ Press in 1985, the cold war was at its height and al state'"--largely the position of Kelsen, but also the political realities of a world dominated by Per‐ the Weimar Constitution as a whole--are de‐ shing and SS-20 missiles suggested a global ver‐ scribed as "distorted," "deteriorated" and "degen‐ sion of Schmitt's friend-enemy distinction favored erate" (pp. 1, 3). Although Strong also cites these in The Concept of the Political (1932) that few in passages, he does not note the rhetoric of degen‐ the face of political idealism.[8] Schmitt himself eration that marks Schmitt's foreword to the sec‐ died in April 1985. When the second English edi‐ ond edition of Political Theology (pp. vii-xxxv, xxi‐ tion, with an added foreword by Tracy B. Strong,

2 H-Net Reviews ii )--a rhetoric that cannot be found in the frst Schmitt's alliance with the National Socialists edition of 1922. is a tricky issue, especially since it tends to polar‐ The alternative to what Schmitt regards as a ize much recent scholarship along ideological degenerate liberalism can be found in faultlines not always fruitful with regard to a bet‐ a passing reference to the "elements of the politi‐ ter understanding of Schmitt's political and legal cal unity"--that is, "state, movement, people"-- thought. Strong himself opts for an interpretation which, needless to say, is a less direct way of sim‐ that seeks to take into account the ambiguities of ply noting that the political order is a one- Schmitt's own remarks on this matter before, dur‐ party state (p. 3).[10] Ironically, however, Schmitt ing and after the Second World War. Precisely be‐ himself, striving for a strong authoritarian state, cause it is certain to be controversial, and precise‐ does not realize that the identity of state, move‐ ly because it nevertheless seeks to achieve a more ment and people actually replaces the very con‐ neutral ground, I should like to quote his interpre‐ cept of the modern state with a "völkisch" notion tation at length: "The present volume, reissued of political unity.[11] with a new foreword but otherwise 'unchanged' in a second edition in November 1933, after But back to Strong's foreword, which--as I Schmitt had joined the , can ... be read have noted earlier--is the most interesting part of on one hand as a document relevant to Schmitt's this new edition of Political Theology. Much of decision to see himself as allied with the NSDAP, what Strong has to say is, of course, of an intro‐ and what that allegiance meant. To see the choice ductory nature and intended to make a wider au‐ that Schmitt (or Heidegger, or many other Ger‐ dience familiar with Schmitt's thought. For stu‐ man philosophers, theologians, artists, as well as dents who frst encounter Schmitt's ideas this par‐ people from all walks of life--not just in Germany, ticularly welcome contribution situates Political and not just then) made as blind or ignorant or Theology in the wider debates of modern political born from venal ambition, is, I think, to misun‐ thought. Indeed, Strong's new foreword is more derstand their thought and their life. It is also to concise and balanced than George Schwab's origi‐ sweep under the table what appeared as the ap‐ nal introduction, which is also included in this peal and apparent necessity of such a movement, edition. Although the bibliographical references and to avoid serious engagement with why it ap‐ in the footnotes were obviously compiled in a peared as such.... Schmitt came, as did Heidegger, hurry and often lack precise page numbers, from a rural, Catholic, petit-bourgeois upbringing" places of publication, and so on, this well-written (pp. x-xi; xxix). and well-researched introduction reaches far be‐ yond Political Theology. It might be doubted that At least to some extent, then, Schmitt's back‐ Schmitt really was the "leading during the ground infuenced his attraction to a radical ex‐ Weimar Republic"--at least it seems so from our pression of power that could be found in the abso‐ own point of view at the beginning of the twenty- lutism of Catholic doctrine as well as in a certain frst century, when Hugo Preuss and Kelsen are understanding of the political that already gained rarely read in any detail (p. vii). Schmitt clearly shape in the fnal years of the Wilhelmine Empire. was the most controversial and most public of the Indeed, this attraction to power becomes obvious Weimar and, as a consequence, Strong is in his recently published diaries from 1912 to particularly interested in Schmitt's transition 1915.[12] But once he had positioned himself from conservative public lawyer in 1922 to out‐ more clearly as a constitutional lawyer critical of spoken member of the NSDAP between 1933 and the Weimar "Parteienstaat," Schmitt's Catholicism, 1936. coupled with a fascination for authority, shaped a body of constitutional thought, the implications of

3 H-Net Reviews which brought him ever closer to a political order precondition as well as the content of jurisdiction‐ that was diametrically opposed to liberal parlia‐ al competence in such a case must necessarily be mentarism. Strong thus concludes: "[I]t is the real‐ unlimited.... The most guidance the constitution ity of taking power and manifesting sovereignty can provide is to indicate who can act in such a in the use of power that attracted Schmitt: his un‐ case" (pp. 5-7). derstanding of law required that he support Given the debates surrounding the validity of Hitler" (p. xxxi).[13] Schmitt's thought between the Weimar Constitution and the status of the Re‐ 1922 and 1934 is characterized by a remarkable ichspräsident's power to issue emergency decrees, continuity that remains a central aspect of his the direction of Schmitt's argument, which both writings even after the Second World War. But, describes and contributes to a political crisis par Strong, as we shall see, is also interested in why excellence, is obvious: the auhority of the state, Schmitt remains relevant today. crystallized in the person of the (Re‐ Written in April 2005, Strong's foreword ichs-)president, can only be derived from the lat‐ presents us with a detailed account of both cur‐ ter's ability to decide frst what constitutes a state rent Schmitt scholarship and the main trends of of emergency and, at the same time, how to ad‐ the current reception of Schmitt's thought by both dress this emergency. The double meaning of left-wing and right-wing interpreters. This fore‐ Schmitt's German phrase ("Souverän ist, wer über word is written with verve and clarity, looking den Ausnahmezustand entscheidet") is a vexing back at Schmitt's defnition of sovereignty from problem for any translation into English or the perspective of a post-9/11 world, in which a French, which Strong makes clear in an ad‐ number of liberal democratic states have intro‐ mirably insightful discussion (pp. xi-xiv).[14] At duced a new set of emergency powers, often by‐ the same time, and following an observation passing constitutional arrangements and directly made by Schmitt's French translator Jean-Louis strengthening power. Defning state Schlegel, Strong rightly notes that Schmitt's defni‐ sovereignty from the point of view of a decision tion of what actually constitutes an Ausnahmezus‐ that needs to cover the exceptional case not antic‐ tand is notoriously vague (p. xiii).[15] In fact, ipated by existing constitutional provisions, Schmitt himself often equates a number of terms-- Schmitt famously noted: "Sovereign is he who de‐ Ausnahmenzustand, Ausnahmefall, Notstand, cides on the exception.... The assertion that the ex‐ Notfall, and so on--without paying much attention ception is truly appropriate for the juristic defni‐ to the fact that their meaning in state law theory tion of sovereignty has a systematic, legal-logical is slightly diferent in each case (p. xiii).[16] But foundation. The decision of the exception is a de‐ while Strong merely asserts the ambiguity of cision in the true sense of the word. Because a Schmitt's expression, it would be wothwhile to general norm, as represented by an ordinary legal ask whether Schmitt (who must have been aware prescription, can never encompass a total excep‐ of these historically and theoretically diferent tion, the decision that a real exception exists can‐ meanings) opts for a rhetorical strategy that ulti‐ not therefore be entirely derived from this mately makes political order as a whole depen‐ norm.... It is precisely the exception that makes dent on something that lies outside this order-- relevant the subject of sovereignty, that is, the even though Schmitt superfcially suggests that whole question of sovereignty. The precise details "[f]or a legal order to make sense, a normal situa‐ of an emergency cannot be anticipated, nor can tion must exist" (p. 13). By programmatically em‐ one spell out what may take place in such a case, phasizing that the "exception in is especially when it is truly a matter of extreme analogous to the miracle in theology," and by re‐ emergency and how it is to be eliminated. The jecting Kelsen's theory of a basic norm as inviting

4 H-Net Reviews political relativism, Schmitt renders it obvious provisions: "One can only note in this day and age that he has little interest in the normal situation ... that the today has on its books a (pp. 36; 18-23; 41-42). sufcient number of emergency powers, estab‐ Leaving aside the historical and philosophical lished sine die, to allow the executive free hand at details of Schmitt's account of the structural anal‐ the rule of all aspects of this country. The present ogy between theology and law, it is noteworthy US administration has ruled that certain prisoners that one of the examples for the way in which this in the 'war against terrorism' have in efect no sta‐ structural analogy has survived in is tus at all, not even that of a person charged with a the United States. Even though Schmitt, quite in crime" (p. xxxiii). contrast to Weber, repeatedly attacks the "eco‐ In April 2005 it was, of course, far from obvi‐ nomic-technical thinking" that marks the world of ous that the U.S. would successful‐ "American fnanciers" and "industrial techni‐ ly intervene in the interpretation of such emer‐ cians" as an "onslaught against the political," he gency powers with regard to so-called enemy nevertheless points to the continued presence of a combatants by ruling that "the Executive is bound quasi-theological foundation for American to comply with the that prevails in , which in contrast to European liberal‐ this jurisdiction," that is, the United States.[19] It ism supposedly highlights the defciencies of secu‐ is, as Schmitt himself noted, "the impact of politi‐ larization (p. 65):[17] "It is true, nevertheless, that cal events" that changes our understanding of for some time the afterefects of the idea of public law. But constitutional norms can also re‐ remained recognizable. In America this manifest‐ sist such changes--although it remains to be seen ed itself in the reasonable and pragmatic belief whether the U.S. Supreme Court's decision in that the voice of the people is the voice of God"(p. Hamdan v. Rumsfeld will have any consequences. 49). The idea of God allows for a broad resistance Against this background, the new edition of against the secularization of the political, Schmitt Schmitt's Political Theology is timely in an uncan‐ claims, since the latter remains "the cause and ny way. Most important of all, though, scholars of end of all things, as the point from which every‐ law and political theory and historians of the thing emanates and to which everything re‐ Weimar Republic once again have easy access to turns."[18] Schmitt's counter-revolutionary one of Schmitt's most important texts, which was Catholicism, which becomes particularly manifest out of print for a number of years and could only in the fourth and fnal chapter of Political Theolo‐ be purchased second-hand for a rather handsome gy, is structurally analogous to his idea of an exec‐ amount. Better still, Strong's new foreword pro‐ utive power in the state that derives its authority vides much-needed clarifcation of some of the not from constitutional provisions and that, there‐ most tricky issues in Schmitt's text. fore, can safely disregard such provisions. Notes Indeed, Schmitt's vision of the Reichspräsi‐ [1]. Peter C. Caldwell, dent as safeguarding the constitution through ex‐ and the Crisis of : The Theory tra-constitutional authority ties in almost perfect‐ and Practice of Weimar ly with current proposals by some public lawyers, (Durham: Duke University Press, 1997), pp. at least in the United States, for what is often 100-101. termed a "unitary executive." Strong makes this connection clear in his foreword, thus underlin‐ [2]. On Kelsen, see Stanley L. Paulson, "The ing the continued relevance of Schmitt's thought Neo-Kantian Dimension of Kelsen's Pure Theory as a warning against hollowing out constitutional

5 H-Net Reviews of Law," Oxford Journal of Legal Studies 12 (1992): [10]. Schmitt refers here to his Staat, Bewe‐ pp. 311-332. gung, Volk. Die Dreigliederung der politischen Ein‐ [3]. See also Carl Schmitt, and Legiti‐ heit (: Hanseatische Verlagsanstalt, macy, trans. and ed. Jefrey Seitzer, with foreword 1933). A second edition of the latter was published by John P. McCormick (Durham: Duke University in 1934, shortly after the second edition of Politis‐ Press, 2004), p. 73. che Theologie. [4]. See, for instance, Chantal Moufe, "Carl [11]. See Stolleis, History of Public Law, p. Schmitt and the Paradox of ," 359. in Law as : Carl Schmitt's Critique of Lib‐ [12]. See, for instance, Carl Schmitt, Tagebüch‐ eralism, ed. David Dyzenhaus (Durham: Duke Uni‐ er: Oktober 1912 bis Februar 1915, ed. Ernst Hüs‐ versity Press, 1998), pp. 159-175. mert (: Akademie-Verlag, 2003), pp. 47, 53, [5]. Michael Stolleis, A History of Public Law 60 and 64. in Germany 1914-1945, trans. Thomas Dunlap (Ox‐ [13]. For a more detailed assessment of ford: Oxford University Press, 2004), pp. 24, 33, Schmitt's relationship to the National Socialist and 67. regime, see Dirk Blasius, Carl Schmitt. Preußisch‐ [6]. Schmitt's account of sovereignty also dif‐ er Staatsrat in Hitlers Reich (Göttingen: Vanden‐ fers fundamentally from Weber's account of hoeck and Ruprecht, 2001). For a slightly more re‐ "domination" and "legitimate violence". See Max visionist account, see Ellen Kennedy, Constitution‐ Weber, and : An Outline of Inter‐ al Failure: Carl Schmitt in Weimar (Durham: pretive , ed. Guenther Roth and Claus Duke University Press, 2004). Wittich (Berkeley: Press, [14]. See also John P. McCormick, "The Dilem‐ 1978), 2, p. 941, and Max Weber, "The Profession ma of : Carl Schmitt and Constitution‐ and Vocation of Politics," in Political Writings, ed. al Emergency Powers," in Law as Politics, pp. Peter Lassman and Ronald Speirs (Cambridge: 217-51; 223. Cambridge University Press, 1994), pp. 309-364; [15]. See also Carl Schmitt, Théologie poli‐ 310-311. tique, trans. Jean-Louis Schlegel (Paris: Gallimard, [7]. See Duncan Kelly, The State of the Politi‐ 1988), n. 15. cal: Conceptions of Politics and the State in the [16]. For a detailed account of these terms, see Thought of Max Weber, Carl Schmitt and Franz Hans Boldt, "Ausnahmezustand, necessitas publi‐ Neumann (Oxford: Oxford University Press, 2003), ca, Belagerungszustand, Kriegszustand, Staatsnot‐ pp. 229-255. stand, Staatsnotrecht," in Geschichtliche Grundbe‐ [8]. For the postwar reception of Schmitt, see grife: Historisches Lexicon zur politisch-sozialen Jan-Werner Müller's excellent A Dangerous Mind: Sprache in Deutschland, ed. , Werner Carl Schmitt in Post-War European Thought (New Conze and (Stuttgart: Ernst Haven: Yale University Press, 2003). Klett Verlag, 1972-1997), 1, pp. 343-376. For the [9]. See , The Enemy: An German discussion since the Weimar Republic, Intellectual Portrait of Carl Schmitt (London: Ver‐ see András Jakab, "German Constitutional Law so, 2000); and Raphael Gross, Carl Schmitt und die and Doctrine on : Paradigms Juden. Eine deutsche Rechtslehre (Frankfurt am and Dilemmas of a Traditional (Continental) Dis‐ Main.: Suhrkamp, 2000). An English translation of course," German Law Journal 7 (2005): pp. the latter will be published shortly by University 453-477. of Wisconsin Press.

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[17]. For Schmitt's critique of technology, see Kelly, The State of the Political, pp. 187-198; 200-204, and 212-217; and John P. McCormick, Carl Schmitt's Critique of Liberalism: Against Pol‐ itics as Technology (Cambridge: Cambridge Uni‐ versity Press, 1997). [18]. For a detailed assessment of Schmitt's theological fgures of thought, see Théodore Paléo‐ logue, Sous l'?"il du Grand Inquisiteur: Carl Schmitt et l'héritage de la théologie politique (Paris: Éditions du Cerf, 2004). For a more histori‐ cally oriented interpretation of Schmitt's relation‐ shp to German Catholicism, see Kelly, The State of the Political, pp. 161-164, 182-187, and 198-200. See also Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction be‐ tween Political Theology and , trans. Marcus Brainard (Chicago: University of Chicago Press, 1998;) and Reinhard Mehring, Pa‐ thetisches Denken--Carl Schmitts Denkweg am Leitfaden Hegels. Katholische Grundstellung und antimarxistische Hegelstrategie (Berlin: Duncker and Humblot, 1989). [19]. Hamdan v. Rumsfeld, 548 U.S. 72 (June 29, 2006).

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Citation: Christian J. Emden. Review of Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. H-German, H-Net Reviews. October, 2006.

URL: https://www.h-net.org/reviews/showrev.php?id=12384

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