Models of Extra-Legality and Illegality: Carl Schmitt’s Lengthening Shadow
Chapter 5 This chapter focuses on Carl Schmitt and others who can be considered as exponents of either ‘extra-legal’ or ‘realist’ models of emergency powers. The realist school, examined in the final section of this chapter, insists that ‘legal rules and norms are too inflexible and rigid to accommodate the security needs of states’ (Gross and Ní Aoláin 2006: 11). The Extra-Legal Measures model ‘suggests that under extreme circumstances, public officials may act extra-legally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions’ (Gross and Ní Aoláin 2006: 11). Gross and Ní Aoláin argued that this extra-legal model, in which they found attractive features, was qualitatively different from Schmitt’s doctrine of exception because it served to ultimately preserve the rule of law. This distinction, in reality, is artificial and cosmetic. To appreciate that, it is first essential to further examine the role played by Schmitt’s theories in the transition from the German Weimar Republic, which he initially sought to uphold, and Hitler’s fascist regime, which Schmitt served, relatively seamlessly. Carl Schmitt’s jurisprudence has been described as a ‘dark shadow’ (Gross and Ní Aoláin 2006: 162). It must be said that the shadow is getting longer. It is not just that Schmittian conceptions are echoing through the assertions of exceptional executive power in Washington and other capitals. Nor is it just that legal theorists are having difficulty finding models of emergency powers that differ fundamentally from those of Schmitt. Attempts are being made to positively rehabilitate Schmitt and make his authoritarian views respectable. Even if his views are still not embraced positively, some scholars (for example, Salter 2012; Croce and Salvatore 2013) insist that his theories deserve respect, and even admiration. Croce and Salvatore argue that Schmitt’s legal theory needs to be reassessed and more greatly appreciated ‘in its own right’ rather than in the light of his ‘political thinking’. They complain that ‘too often the literature about him and his works fails to notice the central role played by law in his theory’ (Croce and Salvatore 2013: 1–2). This is to suggest that Schmitt’s jurisprudence can be understood outside the context in which he sought to first justify the frequent anti-democratic resort to rule by presidential decree under the Weimar Republic, and then the fascist dictatorship of the Nazis. Salter goes further. He portrays Schmitt as a valiant anti-Nazi who, by supporting an expansive interpretation of the emergency powers of the German president under Article 48 of the Weimar Constitution, sought to ‘enhance constitutional bulwarks directed precisely against extreme unconstitutional movements such as Nazism and Communism’ (Salter 2012: 10). Salter favourably emphasises Schmitt’s ‘ambitions of becoming a leading constitutional adviser’ to General von Schleicher, with whom Schmitt ‘contrived’ to ‘outmanoeuvre Hitler’ (without mentioning Schleicher’s own plans for a military dictatorship). Further, Salter asserts of Schmitt: 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 … Nothing in his work actually reveals a necessary transition from Schmitt’s conservative-statist anti-liberalism to totalitarianism and Nazism. (Salter 2012: 10, 12) The kernel of Salter’s claim is that Schmitt’s backing for authoritarian forms of rule by the German corporate and military elite between the defeat of the 1919 revolution and the handing over of power to Hitler in 1933 was somehow incompatible with his enthusiastic backing for Hitler’s despotic rule as ‘Führer’. For Salter, Schmitt was perfectly justified in asserting that the ‘modern state was duty-bound to fight off and, if need be, defeat by authoritarian means’ all challenges with a particular political agenda, such as ‘both Communist and Nazi movements aspiring to destroy democracy from within’ (Salter 2012: 11). Salter attributes Schmitt’s subsequent direct service to the Nazis as merely ‘shameless political opportunism’ (as if they were irrelevant to Schmitt’s theorising), although he concedes that Schmitt ‘never public apologised, or accepted any personal responsibility for, his complicities’ (Salter 2012: 14–15). Such views are not new, but they are resurgent. Since the 1980s, in particular, efforts have been made to make Schmitt respectable. Bendersky and Schwab are among those in that period who depicted Schmitt as respectful of some features of the rule of law, and basically hostile to core Nazi doctrine (see Bendersky 2014; Schwab 1992). Even Schmitt’s anti-Semitism has been described as mere ‘lip-service’ to fascism (Scheuerman 1997: 1744). Commentaries of an ‘apologetic’ character emerged in stark contrast to the post-World War II denunciations of Schmitt’s role. Most notable was a special issue of Telos, a journal of ‘critical theory’, in 1987 devoted to Schmitt’s work. According to the Telos editors, ‘the left can only benefit by learning from Carl Schmitt’ (Piccone and Ulmen 1987: 14). Further Telos editions devoted to appraisals of Schmitt appeared in 1996, 2002, 2005, 2009 and 2010 (Salter 2012: 17). To say the least, apologias for Schmitt are attempts to rewrite history. In reality, as will be demonstrated in this chapter, Schmitt’s Weimar-period writings not only helped pave the way, both politically and legally, for the German elite’s transfer of power to the Nazis, but a clear thread runs through Schmitt’s writings before and after Hitler’s anointment as German chancellor in January 1933. Above all, Schmitt sought to bolster the power of the German capitalist state, both against the threat of socialist revolution at home and against Germany’s great power rivals, notably the United States. The difficulties that legal academics have in differentiating their emergency powers frameworks from those of the German Weimar Republic and Nazi-era jurists are hinted at in Gross and Ní Aoláin’s summation: Some have argued that the Extra-Legal Measures model resembles, and follows in the footsteps of, another seemingly extra-legal model of emergency powers, namely Carl Schmitt’s theory of the exception … We suggest that, if anything, Schmitt’s theory of the exception is akin to models of constitutional necessity. (Gross and Ní Aoláin 2006: 162) The very fact that Schmitt’s doctrines can be considered as analogous to the theories of necessity found in Anglo-American law underscores one of the central theses of this book – that every capitalist constitution, no matter how formally liberal and democratic, contains within it the capacity to authorise dictatorial rule in the name of saving the existing order from domestic threats, as well as external ones. Indeed, there is much to be said for this categorisation of Schmitt as an advocate of accommodating necessity within a constitutional model. Schmitt himself saw his theories as essential to maintaining the German state against the danger of either a communist-led working-class revolution or a Nazi-led seizure of power. Ultimately, the inherent logic of his views saw him accommodate himself to the fascist regime, as a means of ensuring the strength of the state against its domestic left-wing opponents and foreign rivals, particularly Britain, the United States and the Soviet Union. The Nazis, in turn, found his theories useful as a means of seeking to justify and sanctify their violence and tyranny. Despite the Weimar Republic’s formal adherence to democracy and civil rights, there was an underlying political continuity between it and the Nazi regime, which were both directed against the working class and the prospect of socialist revolution. Nevertheless, Schmitt’s conceptions will be examined here as an equally logical outcome of models of extra-legality which presuppose an unlikely return to democratic normalcy, or at least some form of popular mandate, after emergency rule. Regardless of whatever claims are made by proponents of extra-legal measures models about a totalitarian regime eventually having to be accountable to the population for its repressive conduct, such theories are conducive to terrifying, intimidating or coercing people into accepting anti-democratic outcomes. Schmitt’s role and the evolution of Hitler’s reign serve as illustrations of that reality. Significantly, when Hitler was sworn in by President Paul von Hindenburg as German chancellor in January 1933, the Nazi leader made a short speech pledging to uphold the Weimar Constitution, respect the rights of the president and return to normal parliamentary rule after the next elections (Kershaw 1998: 423). Within one month, those vows were ditched, following the Reichstag Fire, when Hindenburg authorised an emergency decree to suspend the constitution’s civil liberties; and within 18 months, Hitler had usurped the powers of the presidency after Hindenburg’s death. Schmitt’s notorious embrace of, and legitimisation of, the Nazi regime after Hitler was appointed German chancellor was reviewed in the Introduction. What must be emphasised is that Schmitt’s theories were developed during the Weimar Republic of 1919–33, which was imposed on Germany in the wake of the German Revolution of 1918–19. That revolution first saw the overthrow of the Kaiser and the monarchy; the taking of power of a Social Democratic government; and then the bloody suppression by that government of the further socialist-led workers’ uprisings of 1919 (see Chapter 2). Schmitt was a trenchant critic of the concessions made to liberalism in the Weimar Constitution of 1919, which enunciated a long list of fundamental civil liberties and rights. He indicted it for pretending that legality determined the holding of political power rather than sovereignty, which included the power to suspend the entire existing constitutional order. While he lambasted the naivety and deceitfulness of liberal democracy, and its weakness in the face of revolutionary uprisings, his theories dovetailed with, and helped to consecrate, the frequent resort to emergency decrees during the Weimar period. As reviewed in Chapter 2, Article 48 of the Weimar Republic, which provided for presidential declarations of emergency, was invoked more than 250 times in this period, starting from the outset with the inaugural Weimar president, the Social Democrat Friedrich Ebert. Moreover, both politically and legally, this anti-democratic and draconian mechanism helped clear the road for the Nazis. It placed power in the hands of small number of individuals acting on behalf of the business, landowning and military elites. The National Socialists not only politically exploited the disillusionment of broad layers of people with the fraud of liberal democracy (Kershaw 1998: 379–427). Hitler also took full advantage of Article 48 and other presidential powers incorporated in the Weimar Constitution to initially cloak his dictatorship in legality and then lever himself into supreme power. Schmitt was not initially a Nazi, but he joined up in 1933 and became an apologist for the horrors of fascism, including the persecution of the Jews, as well as the communists, socialists and trade unionists. Thus, there is a clear political and legal logic to Schmitt’s trajectory from an authoritarian critic of Weimar constitutionalism to a jurisprudential handmaiden of Nazism. His theories were aimed originally at bolstering the capacity of the German capitalist state to thwart the threats of the perceived ‘extremes’ of the left and right – communism and fascism. But his doctrines, by legitimising the anti-democratic and repressive measures of the beleaguered Weimar ruling class, assisted in laying the political and legal groundwork for Hitler. Schmitt’s subsequent enthusiastic support for Hitler’s ‘Führer’ principle, as documented in the Introduction, cannot credibly be separated from the entire trajectory of his jurisprudence. More than that, a brief review of the historical record demonstrates that Schmitt was not simply a legal theorist, but a direct participant in the political plots and counter-plots that led to Hitler’s appointment as chancellor in January 1933. Schmitt accepted a professorship at the University of Berlin in 1928, having left his previous position at the University of Bonn. At this point, he was still primarily a law professor and legal scholar; and while highly regarded in his fields of endeavour, he was not actively involved in the highest echelons of the ruling elites. In 1929, however, as the economic crisis intensified in Germany and internationally following the Wall Street Crash, Schmitt became personally acquainted with General Kurt von Schleicher, an adviser to President von Hindenburg. Schleicher was no ordinary general. In 1919, amid the turmoil of the post-World War I German revolution, he helped form the Freikorps units that were used to crush the Spartacus League-led communist uprising and murder its two foremost leaders, Rosa Luxemburg and Karl Liebknecht (Wheeler-Bennett 1967: 35). Schleicher, who by 1929 wielded considerable power, with the military hierarchy’s backing, found much of value in Schmitt’s theories: in particular, the assertion that implied authoritarian powers co-existed with the 1919 Weimar Constitution and that, anyhow, the Weimar Constitution provided only for rules, not the requirements of governing. Schleicher took this to mean that a regime could dispense with democracy as long as it acted within the letter of the law, or at least gave the appearance of acting within the law (Feuchtwanger 1993: 218). There was nothing innocent about this outlook. Like the 1919 repression, it was above all aimed at preserving the power of the ruling class against the threat from below. In the words of one historian, the succession of autocratic presidential governments that began in March 1930 constituted a creeping coup d’état by which the government, acting in the interests of the traditional elites, become more authoritarian and less democratic, a process that culminated with the Nazi regime in 1933: In light of the sources it can now be firmly stated that the fateful transition from parliamentary government to the presidential regime was well and carefully planned in advance. The protagonists, and Schleicher in particular, were not compelled by circumstances or by the hopelessness of the political situation; they acted with cool deliberation and with the intention of drastically altering the constitutional system and the balance of social forces in favour of old élites of the army, bureaucracy and big business. (Kolb 2005: 117–18) Like the rest of the Reichswehr (military) leadership, Schleicher saw democracy as an impediment to military power, and was convinced that only a dictatorship could make Germany a great military power again (Nicholls 2000: 163–4). At the same time, Schleicher shared Schmitt’s concerns that the lack of a stable government would lead to civil war or seizure of power by the Nazis or communists. These fears accelerated after the economic catastrophe erupted in 1929. Schleicher devised a plan for a presidential government comprised of a chancellor and cabinet ministers that combined with the power of the army, and the provisions of Article 48 of the Weimar Constitution would be able to essentially bypass the badly divided parliament and more effectively address Germany’s severe economic distress and prevent civil disorder or revolution. Schmitt’s writings in this period corresponded with that approach. He spoke out against changes in the constitution of Weimar during its final years, believing that tampering with the constitution during a time of crisis would undermine the legitimacy of the entire system and invite opportunistic exploitation of the constitutional processes by the communists or fascists. His continued defence of the anti-democratic presidential powers granted by Article 48 was always intended as an effort to preserve the existing constitutional order. Well before Hitler was handed the chancellorship in 1933, Schmitt was arguing for an authoritarian ruler who could claim plebiscitary support, a method later utilised by the Nazis. He depicted parliamentary democracy, based on secret ballots, as a fraud while invoking plebiscitary rule, sanctioning decisions already proposed by dictatorial methods, as a more authentic form of democracy. He wrote in 1926: The stronger the power of democratic sentiment becomes, the more certain seems the knowledge that democracy is something other than a system of registering secret ballots. For a democracy in the vital, not technical, sense, a parliament tied to liberal thinking, appears as a mere contrivance, while dictatorial methods can be not only sustained by popular acclamation but be seen as a direct expression of democratic substance. (Schmitt 1985b: 16–17) This was a script ready-made for the would-be fascist dictator Hitler, even if Schmitt would have preferred a more traditional military-based dictatorship headed by his mentor, Schleicher. The Nazis, too, presented themselves as champions of democracy, in the sense of being the authentic embodiment of the popular will. Schmitt’s version of democracy went hand in hand with his conception of a racially homogenous polity (see below). He dismissed ‘liberal democracy’ as ‘just another form of liberalism intended not for self-identified communities but for the entire human race’. After 1931, when the Nazis and the communists in the Reichstag could block other parties’ efforts to form a government, Hindenburg ruled by emergency decree. His impressive re-election in 1932, against Hitler, signified for Schmitt a mandate for the powerful executive rule. Schmitt urged Hindenburg to govern as a ‘constitutional dictator’, preserving the state under extended use of Article 48, until the threat to the German state had passed. The fallout effects of the German Depression, the spread of street violence and the meteoric rise of Nazi and communist electoral strength in 1931 and 1932 all argued for the need for steady national leadership, able to rise to the challenge of exceptional events. Schmitt published Legality and Legitimacy in 1932, warning of the means by which the constitutional order itself could be overthrown through the abuse of ordinary legal and constitutional processes. Most specifically, Schmitt opposed methods of constitutional interpretation that would permit allegedly anti-constitutional parties such as the National Socialists (NSDAP) or the Communist Party of Germany (KPD) to have the ‘equal chance’ to assume power legally. If such a party were to be allowed to gain control of the apparatus of the state itself, it could then use its position to destroy the constitutional order. Schmitt counselled against interpreting the constitution in ways that allowed laws to be passed through formalistic means whose essence contradicted the wider ‘values’ represented by the constitution. He argued that a political constitution should be interpreted according to its internal essence, rather than strict adherence to its technical provisions, and applied according to the conditions imposed by the ‘concrete situation’ at hand. On the advice of General Schleicher, President Hindenburg replaced Heinrich Brüning as chancellor with Franz von Papen on 30 May 1932. Papen, who was later to serve as Hitler’s vice-chancellor for 18 months, soon took an action in Prussia, Germany’s most populous state, that led to Schmitt’s personal participation in a revealing constitutional law trial in Germany’s Supreme Court. In the ‘Rape of Prussia’ on 20 July 1932, Schleicher had martial law proclaimed and called out the Reichswehr to oust the elected Prussian government of Social Democratic Party (SPD) Premier Otto Braun. Using Article 48 of the Weimar Constitution, Hindenburg named Papen the Reich Commissioner of Prussia. The SPD called for a general strike, but the trade union leaders – believing in Schleicher’s promises to include them within a reconstituted government – ordered their members to stay at their jobs (Wheeler-Bennett 1967: 253–5; Kershaw 1998: 369). The justification for the martial law declaration was the Prussian regional government’s alleged inability to maintain order in the face of civil unrest. Prussia was the largest of the German states, containing two-thirds of Germany’s land mass and three-fifths of its population. Though the state government was controlled by the Social Democrats, the Nazis made significant gains in the April 1932 election. The Social Democrats made considerable efforts to block the rise of the Nazis with legal restrictions on their activities and various parliamentary manoeuvres, but fascist violence continued. Papen, himself an anti-Nazi rightist at this point, regarded the imposition of martial law as having the multiple purposes of breaking the power of the Social Democrats in Prussia; controlling the Communist Party; placating the Nazis by removing their Social Democratic rivals; and simultaneously preventing the Nazis from becoming embedded in regional institutions, particularly Prussia’s huge police force. The Prussian state government appealed Papen’s decision to the Supreme Court and a trial was held in October 1932. Schmitt was among three jurists who defended the Papen government’s policy before the court. Schmitt argued that the Prussian state government had failed in its foremost constitutional duty to preserve public order. He further argued that because Papen had acted under the authority of President Hindenburg, Papen’s actions had been legitimate under Article 48. In keeping with his theory of exception, Schmitt insisted that the office of the president was sovereign over the political parties and was responsible for preserving the constitution, public order and the security of the state itself. Schmitt argued that with the Prussian state’s failure to maintain basic order, the situation in Prussia had essentially become a civil war between the political parties. Therefore, imposition of martial law by the chancellor, as an agent of the president, was necessary for the restoration of order. Flowing from his conception of a normless exception, Schmitt further argued that it was the president, rather than the court, that possessed the ultimate authority and responsibility for upholding the constitution, as the court possessed no means of politically enforcing its decisions. Ultimately, the court decided that it, not the president, was responsible for the legal defence of the constitution; but the situation in Prussia was severe enough to justify the appointment of a commissarial government by Papen, though Papen had not been justified in outright suspension of the Prussian state government. Essentially, the Papen government won, as martial law remained in Prussia, and the state government continued to exist in name only (Wheeler-Bennett 1967: 253–5; Kershaw 1998: 369). General Schleicher’s Prussian coup, explicitly championed by Schmitt, laid the basis for Hitler’s installation as German chancellor six months later. In fact, Schleicher had been prepared to anoint Hitler in the immediate aftermath of the Prussian coup. On 5 August 1932, Hitler and Schleicher held a secret meeting, in which Hitler demanded that he become chancellor and the Ministries of the Interior and Justice go to Nazis; Schleicher could remain as Defence Minister. Schleicher was willing to accept Hitler’s arrangement, but Hindenburg refused, preventing Hitler from receiving the chancellorship at that point (Wheeler-Bennett 1967: 257–8). Throughout the following crucial months, Schleicher ousted Papen to become chancellor himself. He hoped to attain a majority in the Reichstag by gaining the support of sections of Nazis for his government (Turner 1996: 24). According to the historian Kershaw: Schleicher’s aim was an authoritarian regime, resting on the Reichswehr [the military], with support from the National Socialists. The idea was to ‘tame’ Hitler, and incorporate the ‘valuable elements’ from his Movement into what would have been essentially a military dictatorship with populist backing. (Kershaw 1998: 366) In the end, Schleicher’s manoeuvres with sections of the Nazis led by Gregor Strasser collapsed in the face of Hitler’s intransigence, whereupon President Hindenburg installed Hitler as chancellor to replace him (Kershaw 1998: 366–423). During this crisis, Schmitt was once more heavily involved in the machinations. He backed an alternative dictatorial plan by Schleicher: By late January, when it appeared that either Papen or Hitler might become chancellor, Schleicher concluded that exceptional measures were required as a last resort. He requested that the president declare a state of emergency, ban the Nazi and Communist parties, and dissolve the Reichstag until stability could be restored. During the interim Schleicher would govern by emergency decrees …. (Bendersky 2014: 184) The Schleicher plan was based in part on Schmitt’s view that ‘a constitutional system could not remain neutral towards its own basic principles, nor provide the legal means for its own destruction’. Yet the liberal, Catholic and socialist press received word of the plan and attacked Schleicher’s plan, and Schmitt’s ideas, as creating the foundation for a presidential dictatorship (Bendersky 2014: 183–8). One scholar summarised Schmitt’s role in this process, and Schmitt’s ready and calculating switch to the Nazi camp, as follows: [D]uring the Republic Schmitt had lent his intellectual support to the attempts of successive authoritarian chancellors, Brüning, Papen, and Schleicher, to usurp the authority of the parliament and govern through the ‘charismatically’ and ‘plebiscitarily’ elected office of Reichpräsident Hindenburg. Schleicher, the figure Schmitt was most aligned to personally, had hoped to carry out such a scheme while outmaneuvering the Nazis, who were gaining popular support – a strategy that Schmitt supported publicly. After failing in this endeavor, Schleicher resigned in January of 1933. When Hitler subsequently became chancellor, Schmitt was invited by Papen, who himself had always been less wary of the Nazis than Schleicher was, to help legalise the new fascist coalition regime … He revised his previous work to conform with party dogma and authored treatises that, sometimes clumsily but always enthusiastically, integrated his Weimar theories into a justification for the power-consolidating National Socialist regime. (McCormick 1997: 266) Far from being divorced from his ‘political choices’, Schmitt’s Weimar-period writings underpinned his active engagement in the crisis of German capitalist rule throughout the Weimar Republic and prefigured his part in helping hand power to the Nazis. Many of the strands of his theorising, including his later justifications of fascism, were present in Die Diktatur, which appeared in 1921. Schmitt insisted that politics must have primacy over legality. More precisely, the state must have the power, and exercise the power, to suppress working-class struggles. Written in the wake of the suppression of the 1919 Spartacist-led uprising, this work makes crystal clear that, while Schmitt was concerned with defending the German state against the supposed extremes of communism and fascism, his central preoccupation was to crush any challenge from the German workers. Die Diktatur was subtitled ‘From the Beginning of the Modern Concept of Sovereignty to Proletarian Class Struggle’. He counterposed ‘sovereignty’ to ‘class struggle’. The state had to be prepared to use extra-constitutional means to preserve itself against internal disorder (the ‘class struggle’) as well as external threats (Wolin 1990: 396). Some authors have contended that Schmitt’s work in general is posited in a sociological vacuum, devoid of socio-economic content or analysis. According to Teschke: Since Schmitt’s method – be it decisionism, the friend-foe distinction, or concrete order thinking – is bereft of any sociology of power, decisionism lacks the analytics to identify what constellation or balance of socio-political forces can activate, in what kind of situation, the politics of the exception and fear. (Teschke 2011: 80) This was the essential class content of Schmitt’s insistence that every government capable of decisive action must include a dictatorial element within its constitution. He was arguing on behalf of the ruling capitalist class: the powerful German manufacturing and military interests that were seeking to reassert their domination and hegemonic aspirations after the defeat of World War I and the 1918–19 revolutionary convulsions. Schmitt was fully conscious of the fragility of the Weimar Republic, which was part of a wider instability following the horrors of the ‘Great War’ and the eruption of the October 1917 Russian Revolution. For Schmitt, crises and states of emergency were not exceptional, but the predominant form of the life of modern nations (Scheuerman 2006a). Rather than the constitution, it was the ‘logic of the concrete exception’ that formed the basis of the state. The state alone retained the ultimate power of decision to suspend political normalcy by declaring a state of exception (Wolin 1990: 396). Schmitt drew a distinction between temporary dictatorship and despotism – between ‘commissarial’ and ‘sovereign’ dictatorship. The former could suspend the constitution, but not promulgate a new one. In order to avoid the shocks and instability that overtook Germany in 1918–19, Schmitt initially sought to uphold the Weimar Constitution, notably by legitimising the use of Article 48, supposedly to save the constitution. But the logic of his stance was to justify indefinite dictatorship. Schmitt’s Political Theology
Models of Extra-Legality and Illegality: Carl Schmitt’s Lengthening Shadow
The Rehabilitation of Carl Schmitt
How to Categorise Schmitt
Schmitt: A Handmaiden to Fascism
How Schmitt’s Weimar Writings Justified His Role