An afterlife for Carl Schmitt?

An afterlife for Carl Schmitt?

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:

Probably no political thinker, and certainly no jurist, has given rise to such conflicting views as Carl Schmitt. As Carlo Galli has noted, Schmitt has been called the worst man in the world and the only German of his time with whom it was worthwhile conducting a conversation. He has been called a sceptic and a dogmatist, a romantic and an anti-romantic, a modernist and an anti-modernist, the thinker who did away with the state and the one who most regretted its death. To some, Schmitt is the thinker who saw disorder and conflict as the source of the political. To others, Schmitt is the last person to point to order as its constitutive element. Schmitt defined himself as ‘the last bearer of the European juridical civilization’. Schmitt ended up being ignored by jurists; many political scientists and philosophers, in contrast, regard his work as a milestone.

(Zarmanian 2006: 41)

The recent, that is post-1985, explosion in mainly leftist scholarly literature on Schmitt, the famed ‘Schmitt renaissance’, has generated multiple images, most of which claim to be offering up the single correct key for unlocking the ‘true meaning’ of this figure (Rust and Lupton 2009: xv–xx). These images can be loosely divided into five clusters: theology, legal and constitutional theory, political theory, biographical, and literary studies. Concerning theology, for example, there is the image of ‘Schmitt the Catholic thinker and political theologian’, where an understanding of his distinctive political Catholicism is judged the key to unlock the meaning of his texts (Meier 1998). Elements of the other approaches will be addressed in different parts of the present study.

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.

And yet, from the middle of 1933, Schmitt abruptly reversed his previous scholarly and political positions that Nazi theorists had rightly recognised as incompatible with their own (Koenen, 1995). He joined the Nazi Party, generally made his peace with the new regime, and then actively collaborated shamelessly for the next three years (Bendersky 1979: 316–22; Salter 1999). From 1933, Schmitt made various defensive attempts to play down his earlier strong criticisms of Nazism as a form of ‘organised insanity’ meriting constitutional prohibition. He also attempted to gloss over his personal support for, and affiliation with, key figures within Hitler’s conservative enemies associated with General Schleicher, who the Nazis had killed in a revenge attack of July 1934 in what became known as the ‘night of the long knives’ (Bendersky 1979: 318).

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).

Thirdly, in response to a context of extended parliamentary deadlock with the Nazis and Communists joining forces in a ‘negative majority’ against government measures, Schmitt had strongly attacked liberal constitutionalists, including legal positivists. He attacked them for absurdly insisting on affording such totalitarian movements an ‘equal chance’ to cynically destroy democracy from within by legal-constitutional means – as if the Weimar constitution was a suicide letter (Schmitt 1931; Schmitt 1932/1988; Schmitt 2004b: 28–36, 47, 88, 94, 98).

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).

Galli and others contest the argument that claims that, given the alleged continuity between his Weimar and Nazi works, Schmitt’s support for Nazism must be seen as the inevitable result of the former. Nothing in his work actually reveals a necessary transition from Schmitt’s conservative-statist anti-liberalism to totalitarianism and Nazism. Galli maintains that Schmitt’s temporary embrace of Nazism was more a consequence of his personal circumstances than his intellectual history, and that during his overtly Nazi years (1933–36) Schmitt barely produced any original work. Instead, he cynically revised and ‘decorated’ his earlier positions to simply curry favour with the new regime and to gain recognition as a Kronjurist (Crown Jurist) within it. Nazism had minimal influence on Schmitt’s overall theoretical perspective, which also explains why his status was strongly contested within core Nazi circles (Galli 1996: 839; Zarmanian 2006: 43).

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).

There is no denying that these facets of Schmitt’s personal behaviour between 1933 and 1936, including his conversion to a strategic form of anti-Semitism, were morally and ethically deplorable (Scheuerman: 1999: 10, 114–16, 123, 127–8, 157–8, 175, 298, 308–9 n 73). They remain a vexing question that Schmittian scholarship cannot responsibly ignore. In this respect, however, Schmitt’s name joins the list of scholars who made deplorable political mistakes by either endorsing or working with tyrannical regimes. This depressingly long list includes Plato, and with respect to Nazism – Paul De Man, Martin Heidegger, Blanchot, T.S. Eliot; and, in relation to Stalinism and militant political Islam, Georg Lukacs and Michel Foucault respectively. During the Stalinist era at least, one could accuse every Western academic who ever joined and chose to remain a member of the Communist Party of endorsing Stalin’s murderously genocidal tyranny, particularly in Western contexts where – unlike Schmitt – they were under no personal threat. The fact is that around 20 million Chinese citizens were killed during Mao’s ‘great leap forward’ and forced industrialisation. Yet, this is rarely recognised by Western Marxists as an objection to their position. Obviously, such comparisons do not excuse Schmitt or relativise his complicity in the sense of minimising it. However, they are relevant to how commentators ought to respond to this episode. These points highlight the dangers of adopting a highly selective perspective on which victims of genocide are judged to be noteworthy and which others, for ideological reasons, are passed over in silence whenever questions of academic collusion with murderous dictatorships are under discussion.

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.

Arguably, a democratic academic culture needs to preserve awareness not only of authors whose biographies exemplify positive role models, such as Franz Neumann, for example, in relation to his opposition to Nazism both within Germany and later as a research analyst preparing research materials for the Nuremberg trials, but also prominent – but now disgraced – figures (Salter 1999). The latter group’s intellectual biographies need to serve as a dreadful warning to those who might, for short-term material gains, be tempted to emulate Schmitt’s ultimately counterproductive actions in the future. The fact that one of France’s pre-eminent leading thinkers during the immediate post-war decades, Jean Paul Sartre, noisily resigned from the French Communist Party in the wake of its ‘patriotic’ support for the French government’s brutal suppression of the Algerian national liberation movement, was and remains highly symbolic; and of course one could add many other names to this list of politically engaged academics. By contrast, and this is especially unforgivable, Schmitt – like Martin Heidegger – never publicly apologised, or accepted any personal responsibility for, his complicities by, for example, accepting ‘denazification’. Unlike virtually all other academic collaborators with Nazism, including judges and lawyers, this rendered Schmitt unemployable in the post-war German University sector (Scheuerman 1999: 4).