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Carl Schmitt's Historicity Between Theology and Technology Carl Schmitt’s Historicity between Theology and Technology Joshua Reinhold Smeltzer Department of Politics and International Studies University of Cambridge This dissertation is submitted for the degree of Doctor of Philosophy Trinity Hall November 2019 To my loving parents, Penny and Rex Declaration I hereby declare that except where specific reference is made to the work of others, the contents of this dissertation are original and have not been submitted in whole or in part for consideration for any other degree or qualification in this, or any other university. This dissertation is my own work and contains nothing which is the outcome of work done in collaboration with others, except as specified in the text and Acknowledgements. This dissertation contains fewer than 80,000 words including appendices, bibliography, and footnotes, and has fewer than 150 figures. Parts of this dissertation have been presented at: • ‘Carl Schmitt contra Natural Law,’ German Conservatism, Philosophical and Political, Post-1945, Institute of Philosophy, Hungarian Academy of Sciences (12.4.2019). • ‘A Return to Historicity as a Remedy to Crisis?’ Crisis and Renewal in the History of Political Thought, European Society for the History of Political Thought (11.10.2018). • ‘Utopia and Utopianism in the Political Thought of Carl Schmitt,’ Graduate Workshop in the History of Political Thought, University of Cambridge (29.5.2018). Parts of this dissertation have been published as: • Joshua Smeltzer, ‘Technology, Law, and Annihilation: Carl Schmitt’s Critique of Utopianism,’ Journal of the History of Ideas 81(1) (2020), 107-129. • Joshua Smeltzer, ‘On the Use and Abuse of Francisco de Vitoria: James Brown Scott and Carl Schmitt,’ Journal of the History of International Law 20 (2018), 345-372. Joshua Reinhold Smeltzer November 2019 Abstract Carl Schmitt’s Historicity between Theology and Technology Joshua Reinhold Smeltzer This thesis interprets the work of the German jurist and state theorist Carl Schmitt through the lens of a ‘double-historicism’ by using unpublished archival materials – journal entries, letters, manuscripts, and marginalia. Not only were Schmitt’s ideas and writings shaped by his intellectual and political context, but he himself viewed legal and political concepts as historically contingent. The first chapter reconstructs the ‘canonization’ of Carl Schmitt in the field of political theory, focusing on the reception and sanitization of his work in English language scholarship. The second chapter excavates Schmitt’s concept of ‘historicity’ and his turn to the founder of the Historical School of Law, Friedrich Carl von Savigny, in lectures given in 1943 and 1944. I then argue this historical turn is the key to understanding Schmitt’s postwar work, connecting four major monographs published concurrently in 1950. The following chapters show how Schmitt mobilizes historicity as a critique of natural law theories and the right of resistance against tyrannical regimes (chapter 3), the appropriation of Scholastic just war doctrines in the postwar period (chapter 4), Marxism’s weaponization of legality (chapter 5) and utopianism as a form of annihilation of law and the ‘de-localization’ of both nature and man (chapter 6). Schmitt saw both legal positivism and natural law theories as posing an existential crisis to the future of jurisprudence, one that could only be overcome by recourse to a self-reflexive history of the discipline. Acknowledgements I would like to begin by thanking my supervisor, Duncan Kelly, for his numerous comments, advice, and continued support over the course of writing this PhD. I would also like to thank Duncan Bell for supporting my applications and providing comments on draft chapters and articles along the way. I am lucky to have met Edward Jones Corredera, a great friend as well as a sounding board and fruitful source of collaboration over the past four years. Together we organized a year- long symposium on Reinhart Koselleck, organized a conference on ‘Imperial Times,’ and then organized a second follow-up conference on ‘Revolutionary and Counter-Revolutionary Times in Germany and Beyond’ – sadly canceled due to the coronavirus. Edward deserves special thanks for reading and commenting on every single piece of my writing, from blog posts to draft articles. I’m proud of all that we accomplished so far, and look forward to our next collaboration. I would also like to thank Samuel Garrett Zeitlin for his friendship and our many dis- cussions on all things Schmitt related. The intellectual highlight of my time in Cambridge was our semi-weekly meetings in the King’s College coffee shop. Over the course of four to six hours, we would read, annotate, and translate Schmitt’s texts together. These marathon sessions were exhausting, but they also renewed a sense of passion about my research and gave me the will to solider on when writing became tedious. After he had moved to the University of Chicago, I had the pleasure of seeing him again at a conference in Budapest. Somewhere on a bridge over the Danube, I lamented that Cambridge just wasn’t the same without him. He responded, ‘Josh, Cambridge is the people! This is Cambridge!’ As usual, Sam was right. Trinity Hall College supported me with an Atlantic Fund scholarship, without which this dissertation would not have been possible. I have benefitted from grants from the Institute of Philosophy at the Hungarian Academy of Sciences, the Deutscher Akademischer Austauschdienst (DAAD), the Fulbright Commission, the European Society for the History of Political Thought, the Department of Politics and International Studies’ travel fund, and x a Trinity Hall graduate bursary. I would also like to thank Daniel Benton for endowing the Benton Scholars program at Colgate University, which enabled a first generation college student such as myself to attend university. Ten years later and I’m finally finished! Thank you to all those in academia for engaging discussions over the years: Sean Fleming, Emma Stone Mackinnon, Edward Cavanagh, Léonie de Jonge, Alice Musabende, Yoel Mitrani, Greg Conti, Benedek Varga, Boyd van Dijk, Lucian Hölscher, Ferenc Hörcher, Anna Ross, Lucia Rubinelli, Brendan Simms, Lars Vinx, and Mark Somos. I would especially like to thank Nancy Ries and Daniel Bertrand Monk, my undergraduate advisors, for encouraging me to read widely; and Peter Niesen, my supervisor at the University of Hamburg who supported my application and has continued to support me thereafter. I also would like to thank all those outside of academia for keeping me sane: my family, Penny, Rex, Stephanie, Kay, Wes, Anita, Kim, Ted, Ian, Niklas, Julia, Leonas, Harriet, Marc, Lotta, Anton, Wezi, Thomas, Uli, Jonathan and Joshua; and my friends, Ryan Loomis, Hilary and John Higgins, Eileen and Stephan Pott, Aimee Ketsdever, David Kearney, Emma Curran, and Joanna Williams. Finally I would like to thank my husband, Caspar Schwalbe, for convincing me to apply to Cambridge and for putting up with the consequences. A Note on Translations All translations of German texts are my own unless stated otherwise. When quoting Schmitt directly, I have chosen to include the original German text in the footnotes for two reasons: first, in the interest of transparency such that my translations can be verified and criticized, particularly when citing unpublished sources otherwise unavailable to the reader; and second, to maintain the wordplay and conceptual repetition across disparate texts and time periods. I hope the reader will forgive my cumbersome footnotes. Table of contents 1 Carl Schmitt in the Anglosphere: The Canonization of a Political Theorist 1 1.1 The Myth of 1936: The Beginnings of the Schmitt Renaissance . 3 1.2 Historicism or Apologetics? . 11 1.3 Left-Schmittiana: Radical Democracy or Radical Delusion? . 17 1.4 The Afterlives of Saints . 22 2 The Turn to Historicity 29 2.1 Crisis and Prognosis . 30 2.2 Historicizing the Historical School of Law . 45 2.3 The Past Futures of Jurisprudence . 53 3 Law without History? Carl Schmitt contra Natural Law 57 3.1 Defining Natural Law . 61 3.2 Natural Law and World Civil War . 71 3.3 Natural Law, the Right of Resistance, and Collaboration . 77 3.4 An Isolated Perspective . 83 4 On the Use and Abuse of Francisco de Vitoria: James Brown Scott and Carl Schmitt 89 4.1 James Brown Scott and the Vitorian Renaissance . 90 4.2 Carl Schmitt Goes to Salamanca . 100 4.3 Writing the Origins of International Law . 110 xiv Table of contents 5 Schmitt’s Socialisms 113 5.1 Legality and Legitimacy Redux: Marxist Revolutionary Strategy . 115 5.2 Socialism as a ‘Nomos’? ........................... 125 5.3 Electrifying the Earth . 132 6 Technology, Law, and Annihilation: Carl Schmitt’s Critique of Utopianism 137 6.1 Two Phases of De-Localization . 138 6.2 Technology, Utopia, and Annihilation . 144 6.3 Enmity and Utopia . 147 6.4 Utopia, Nihilism, and the New Nomos of the Earth . 152 6.5 The New Crusaders . 156 Conclusion: The State of Historicity 159 References 169 Chapter 1 Carl Schmitt in the Anglosphere: The Canonization of a Political Theorist Shortly after the end of the Second World War, the German jurist and political theorist Carl Schmitt found himself arrested by the American occupying authorities.1 Imprisoned first in a camp in Berlin-Litcherfelde-Süd and then again in Berlin-Wannsee,2 the Prussian State Councilor and Professor at the University of Berlin reached his nadir as an odious figure in the history of German political and legal thought for his association with and support of the National Socialist dictatorship. Even his closest former students, Ernst Rudolf Huber and Ernst Forsthoff, did not write to their former mentor.3 During this period of imprisonment, Schmitt turned his gaze towards the history of political thought, finding parallels in his historical situation to that of Thomas More, or as Schmitt describes him, ‘the patron saint of intellectual freedom.’4 Like Schmitt, More was a lawyer and councilor at the center of political power.
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