There is inevitably controversy over how best to ‘come to terms with’ Carl Schmitt (11 July 1888–7 April 1985), particularly in terms of various claims concerning his contemporary relevance. The present chapter addresses these two themes. This book takes as its primary guide the writings (as distinct from the biography) of this ever-controversial German jurist and professor of public law at the Universalities of Cologne, Bonn and Berlin. Can these provide us with a potentially useful tool-kit of claims, techniques and, perhaps, a combination of relevant insights and dreadful – if still instructive – warnings?

But which particular version of Carl Schmitt can claim topical relevance for present purposes? Thalin Zarmanian has recently argued that:

What cannot be deferred in this way are biographical approaches, particularly those which seize upon Schmitt’s relationship with the Nazi movement (Koenen 1995). Since Schmitt’s first publication in 1912 through to 1932, Schmitt had ignored emerging neo-Nazi and Nazi positions within his chosen scholarly fields, and through the entire Weimar period this disdain had been fully reciprocated by Nazi legal, constitutional and political theorists. Schmitt had opposed Hitler’s movement both within his late Weimar writings and in his own political engagements, where he contrived with General Schleicher to outmanoeuvre Hitler, despite the latter’s strong parliamentary representation.

Through an expansive interpretation of the role and powers of the directly elected German President under Article 48 of the Weimar Constitution, he had sought to enhance constitutional bulwarks directed precisely against extreme unconstitutional movements such as Nazism and Communism (Schmitt 2004b). This was particularly the case where these strategically deployed legal and constitutional means, and thereby threatened to secure parliamentary majorities. Schmitt regarded President Hindenburg’s decision in January 1933 to appoint Hitler as Chancellor in a Nazi-Conservative coalition to be utterly insane. He interpreted this development as both a personal reverse to his own ambitions of becoming a leading constitutional adviser to Schleicher, and – more widely – a political disaster and retrograde step for the entire German people (Kennedy 1988: xlix, n 91; Kennedy 2004: 116). In this respect, Schmitt’s personal opinions and political judgements were broadly consistent with his pre-1933 publications, particularly Legality and Legitimacy and Guardian of the Constitution (Schmitt 2004b and 1931 respectively).

Attempts to read his subsequent embrace of the Nazi-Conservative coalition as if this represented the logical culmination of the allegedly Nazi implications of his earlier studies, involves a gross falsification of the historical record. It suggests the improbable, indeed incredible, proposition that Otto Kirchheimer, Franz Neumann, Leo Strauss, Ernst Fraenkl and Walter Benjamin – all broadly sympathetic readers of Schmitt – were somehow incapable of recognising a fascistic body of work for what it really was. A similar point applies to an earlier pioneer of Schmittian studies in the English-speaking world, Joseph Bendersky, also from a Jewish family background.

This always threadbare and unconvincing strategy of misrepresenting both his personal position, and that of his previous works, as broadly compatible with the ideology of Hitler’s Nazi-Conservative coalition regime, completely unravelled within three years. From the start, representatives of hard core Nazism within and beyond the fields of legal and constitutional theory, who had been contributing to Hitler’s project for many years, were highly suspicious of this new ‘convert’. They recognised that Nazi ideology in this area had – for clear and obvious reasons – avoided any positive reference to Schmitt’s Weimar publications whatsoever (Bendersky 1979: 320–1).

There are at least four clear reasons for this. First, these writings were widely and rightly identified as distinctly incompatible with, and largely directly opposed to, their own ideology and immediate political aims of seizing state power and subordinating it to the Nazi leadership. In particular, many Nazi scholars associated Schmitt with political Catholicism, a movement to be repressed as incompatible with their own revolutionary project of dismantling all forms of authority other than that of the Nazi leadership. Secondly, Schmitt’s Weimar writings exhibited a strong conservative statist dimension, drawn partly from Max Weber as well as Thomas Hobbes. This rejected the idea that the modern democratic state could ever legitimately be instrumentalised to the point where it became little more than a mere device for the realisation of any specific party political agenda (Surin 2005: 186–7). Instead, it embodied a distinct public sector ethos, and thereby constituted: ‘the ultimate and decisive authority’. The modern state was duty-bound to fight off and, if need be, defeat by authoritarian means all such particularistic challenges (or ‘indirect powers’) emerging from civil society, in particular from both Communist and Nazi movements aspiring to destroy democracy from within (Schmitt 1996a: 19–20; Schmitt 1999).

The final reason is that defenders and advocates of hardcore Nazi ideology also knew that Schmitt’s theoretical writings ‘lacked’ the defining commitment of Nazism to a distinctly racist and pseudo-biological form of analysis (Bendersky 1979: 321). Equally significant is the fact that his pre-1933 publications had developed an interpretative or social constructionist cultural theory of representation, broadly akin to that of Max Weber’s contributions to interpretative sociology. This, of course, remains diametrically opposed to any type of naturalism, particularly Nazi forms of biological reductionism (Schmitt 1996c). In many places, Schmitt’s writings displayed dialectical forms of argumentation and analysis closer to Hegel, and especially Hobbes, than writers such as Nietzsche on whom Hitler’s movement had at least pretended to draw direct inspiration.

Schmitt rarely engaged in express forms of methodological reflection. However, on those occasions where his works articulate a methodology, he recognised its indebtedness to the phenomenological approach of Edmund Husserl, who was a German national from a Jewish background. Indeed, in 1928 Schmitt expressly credits Husserl’s method with supplying him with an optimal conception of equality and identity as a subjectively lived reality appropriate to his theory of constitutional democracy (Schmitt 2008a: 10 n 2; Schmitt 2008b: 265). Fredric Jameson has rightly identified how Schmitt’s Nomos of the Earth displays Husserl’s clear influence with respect to its ‘spatial thought’ (Jameson 2005: 200; cf. Schmitt 2003). I would add that some of Schmitt’s most cited works, particularly The Concept of the Political, adopt a Husserlian ‘eidetic’ approach to identify, partly through a process of distinguishing, essential qualities of ‘the political’ as this manifests itself experientially over time (Schmitt 1996a).

Furthermore, Schmitt’s writings from 1912–33 ‘lacked’ indications of anti-Semitism, even of that ‘moderate’ (relative to Nazism) anti-Judaic religious form which was common amongst defenders of Catholicism (and German Lutherism). Furthermore, Schmitt was known to be personally associated with, and helpful to, many Jewish friends, colleagues and graduate students, including Leo Strauss and Erich Kaufmann. Some of these were also well known and vocal leftist enemies of Nazism, such as Neumann, Kirchheimer and Benjamin (Bendersky 1979: 319–21).

Between 1933 and 1936, Schmitt’s defensive and dishonest attempts to smooth over these discrepancies and thereby reap the material spoils of such collaboration for his career, succeeded in not only alienating most former colleagues and friends, but also ruining his personal reputation. Of course, this repackaging utterly failed to convince the Political Intelligence Division (SD) of the SS, who kept Schmitt under surveillance, that he was anything other than a political opportunist and turncoat from the conservative opposition to Nazism, who had jumped on the Nazi bandwagon primarily to save his own skin. By 1935–36, it had become increasingly obvious to SS officials that Schmitt was someone who was playing mere lip service to the distinctive features of Nazi ideology, particularly grotesque displays of anti-Semitism, to save himself from the bloody fate suffered by his mentor General Schleicher (and the latter’s entire family and political aides). In addition, it may have become obvious that he had been seeking to shamelessly advance his career in a context where many major rivals – such as Hans Kelsen – had already been forced to emigrate to escape political and anti-Semitic persecution (Dyzenhaus 2006: 84).

What is certainly clear is that in 1936 there was a powerful SS public campaign against Schmitt, which included public condemnation in semi-official publications, followed by his denunciation by Hitler’s deputy Rosenberg. Rosenberg rightly pointed out a series of contradictions between Schmitt’s conservative-statist and political theological orientation on the one hand and, on the other, the content of Nazi ideologies that prioritise race and the Nazi movement itself (Bendersky 1979: 320; Scheuerman: 1999: 288 n 55). After such attacks he was stripped of his various official and semi-official positions in Nazi-affiliated academic organisations. Indeed, he may have only survived the fate of Schleicher because it was Herman Goering who had originally appointed him to a largely ceremonial post of Prussian State Counsellor. Goering’s overblown personal vanity clearly resented ‘his’ personal appointee being publicly undermined by medium and low ranking SS officials – even where, from the perspective of strict Nazi ideology, these attacks would, he accepted, possess substantive merit (Bendersky 1979; 315, 318; Dyzenhaus 2006: 86).

In each of the cases listed above, there are good reasons explaining why the exposure of such disastrous endorsements has been taken seriously by academic commentators but has not prompted a frenzy of book-burning. The central reason is the important distinction between the activities of academics as individuals within a given historical context, and the contemporary scholarly implications of their works for us. Fortunately, such exposure has not prevented the works of these personally disgraced writers from remaining in print, being widely translated and critically discussed by leading scholars of all political persuasions in terms of both the validity, and utility, of their ideas and styles of analysis.