Schmitt extended his critique of liberal constitutional ideologies to include the related topic of the operation of ‘liberal cosmopolitan’ ideologies and the ‘ideology of humanity’ within international law as distinct variants upon liberalism more generally (Zolo 2002). Finally, it may prove useful to briefly outline Schmitt’s distinctly illiberal and broadly Hobbesian model of law as an expression of power and authority. Is this able to retrieve a number of the material and socio-legal dimensions that liberal ideologies typically need to exclude precisely in order to vindicate, and then give a spurious impression of legitimacy for, their own approach? Will the distinctly ideological nature of liberal projections become clearer if we view them from the alternative perspective of a Schmittian model of law?

The concept of ‘strategic myth’, which constitutes a major theme for the second half of this work, will be clarified in a later section devoted to this topic.

The politics of law and the law of politics

How are the expressions ‘politics’ and ‘law’ of this book’s title best interpreted in this context? Perhaps, they are best understood as discrete and mutually exclusive fields, or as mutually dependent practices?

Schmitt defines political activity as an emerging product of a polarisation around relations of group affinity, neutrality and hostility. In ‘exceptional’ moments of perceived national crisis, the sovereignty of the state becomes emphatically present by the executive seeking to mobilise citizens against a ‘public enemy’ identified and named as such by these leaders (Schmitt 1996a; Schmitt 2005a: 6, 13). Politics is a public and collective phenomenon, not to be confused with purely interpersonal animosities and conflict between private individuals for example. In this sense, even religions with universalistic and otherworldly aspirations, such as Christianity, can become emphatically political whenever theological-doctrinal differences lead, for instance, to schisms, sectarian conflicts, inquisitions, religious-creedal wars, contested reformations etc. By the same token, economic life becomes intensely political whenever it results in the formation of opposed social classes consciously engaged in a type of class conflict where one party identifies itself as ‘oppressed’ and/or ‘exploited’ by the other, and therefore seeks revolutionary social transformation through a general strike or other insurrectionary form of direct action (Schmitt 1988: ch 4).

A Schmittian approach to law is committed to the idea that being human involves immersion in ever-present possibilities for collective conflict arising from virtually every conceivable form of social activity. Politics remains a basic concept of human anthropology because we are primarily political animals for whom the unrealistic prospect of the entire disappearance of the political would entail drastic, if perhaps ‘comfortable’, dehumanisation. Whilst political activity endures over time, specific political formations, such as that centred on the medieval or modern state, remain contingent and vulnerable to collapse. Every overtly political phenomenon, including law, can be challenged through effective depoliticisation and apparent neutralisation of conflicts. If successful, these tendencies at least partly deprive the presence of law of its specific political character. Because programmes of depoliticisation, which often take the form of liberal ideological reductions of issues to either ethics or economics, are themselves polemical movements, they remain trapped in – and ironically exhibit – the logic of the political itself. Depoliticisation of law can thus be subjected to the same ironic blowback-reversal as a ‘war to end all wars’, or efforts to end cannibalism by eating the last cannibal.

Depoliticisation strategies can include the promotion of idealistic pacifist ideologies. Typically, these reject the possibility of identifying public enemies because, to the delight of a nation’s real enemies, ultimately nothing is deemed sufficiently meaningful and valuable to defend through the mobilisation of military force, not even pacifist ideals. By contrast, the modern state cannot renounce politics or project the possibility of its dissolution in favour of a communist utopia involving the ‘withering away of law’ and the mere ‘administration of things’. Instead, the logic of the political dictates that it must seek to deploy sovereign power to preserve an effective system of criminal law, together with a police, security and military service capable of preventing state power being seized by such designated enemies, whether these are domestic or international.

The point concerning politics interpreted as the relative degree of intensity of friend and enemy distinctions and oppositions, applies to all distinctive spheres of civil society. Within the legal sphere, this includes testcase litigation in which, for example, victims of defective medicine bring a case against a combination of drug companies and their regulators, law reform controversies where rival social groups take diametrically opposed positions, and even the frequently factionalised internal politics of law schools and academic conferences. Here, individuals meet but frameworks of ideas and assumptions often fail to enter into any meaningful or mutually enriching dialogue.

Equally, specific legal devices, such as judicial review and human rights remedies, provide judges with restricted opportunities for striking down government decisions and entire policies, even in fields such as counter-terrorism and other areas where they are fulfilling specific election pledges. Where this takes place, even on purely technical and procedural grounds that appear politically neutral, the judges will inevitably be accused of engaging in a one-sided form of political partisanship. Judges who overtly change the meaning or scope of a legal doctrine on policy grounds will risk charges of usurping the political role of the legislature. And yet it is widely recognised that the distinction between the faithful application of law and judicial law-making is a hard one to make in practice. This is because application presupposes reinterpretation, and the latter is – to a greater or lesser extent – inevitably selective involving value-driven choices between alternatives.

Where it is not possible to identify actual or at least potential friend/enemy groupings amongst the judiciary, the legal profession more generally, or between different branches of state involved in the separation of powers, then politics within the legal sphere continues to exist. However, it endures in a state of latency or dormancy (Schmitt 1999).

In short, the inclusion of ‘politics’ in my book title refers to the various ways in which our experience of law shows that it is implicated in real or potentially conflictual situations in any field of social action to which it could be applied, including interstate relations. Furthermore, the invariant defining quality of politics is a form of association/disassociation sufficient to generate the differentiation of ‘friends’ from both ‘enemies’ and ‘neutrals’.

On this Schmittian definition of politics, it is possible to imagine – but perhaps only imagine – a utopian global situation of a unified ‘humanity-at-large’ governed by a universally accepted world government of uncontested legitimacy, and free of all polarised oppositions and ‘us versus them’ relations. That is, a totally depoliticised and neutralised context where, for example, international criminal law, war crimes trials and humanitarian law would have become anachronistic, a mere reminder of times past. However, the world in which we now wake up to every morning shows little signs of even approximating this redemptive pipe dream of a secularised heaven on earth, the opium-fantasy of liberal cosmopolitanism all too often deployed as a moralistic benchmark to slander the politics of existing institutional practices of nation states.

Furthermore, this is a field in which law authorises the suspension of its exercise, and in theorising this we are confronted with the instructive mediation and overpowering of such legal measures by real-life events, whose significance is irreducible to their legal meaning and implications. Here, an apparent or presumed difference arises between public law measures and emphatically political realities that embrace terrorism, civil war, revolutionary insurrection and mass civil disobedience or – in Schmittian terminology – ‘the right to resist’. Public law has to answer the question of whether the dictatorial mode of governance authorised by law-suspending emergency powers legislation has remained an exceptional response to extraordinary events predestined to end once the ‘normal situation’ has been restored (Schmitt 2005a: 6, 13)? Alternatively, has it become extended or ‘normalised’ as a ‘sovereign’ form of dictatorship? Answering this question, which Giorgio Agamben has explored, requires reflections that are as much political as legal. In short, the effort of public lawyers to interpret emergency powers measures brings home both the relative difference between law and politics as well as their deeper and inescapable bond.

Law as an ideological practice involving depoliticisation

It is reasonable to expect a book about Schmittian legal theory entitled Law as Ideology, Politics and Strategic Myth to include a section on that aspect of legal experience which can be usefully identified as ‘ideological’ in some, as yet unclarified, sense of this difficult concept. However, Schmitt does not provide an express and general ‘theory of ideology’. What his writings do offer, however, is a fairly detailed and critical account of the qualities and operation of liberal ideologies of legality, together with an equally critical, even polemical, account of the ‘ideology of humanity’. The latter, he claims, is focused primarily upon the discourse of a form of international law decisively shaped by the victors of the 20th century world wars, particularly the United States.

One distinctive feature of ideology, at least within a Schmittian sense of this term, is the strategic misrepresentation of the contents of a particular agenda and set of specific interests associated with it, as though they were somehow universal, that is, as embodying ‘the national interest’, the ‘needs of humanity’, universally applicable ‘human rights imperatives’ etc. Through a policy and practice of disguised monopolisation, coercive homogenisation (one American-specific size fits all) and strategic deception, such forms of ideological misrepresentation seek to displace all other rival agendas and interests. In turn, this is clearly invidious to any surviving domestic or international types of substantive pluralism. Indeed, it risks becoming ‘imperialistic’ wherever a major power, or superpower, successfully implements and institutionalises such a supposedly universalistic orientation. Whilst ideologies and myths can overlap, the qualities just discussed are, perhaps, better classified as the hallmarks of a Schmittian understanding of ideology.

Those seeking to build up a more general Schmittian theory of the ideological dimension of legal discourse could start with his discussion of the ideology of humanity, discussed below, and then cross reference the results to his various accounts of the distinctly ideological aspects of liberalism. Others more interested in a critical analysis of how contemporary international law deploys notions of humanity and its various offshoots, such as ‘humanitarian intervention’, ‘crimes against humanity’ and ‘human rights’, are likely to find the later section devoted to this rich in arguments relevant to their project (Brown 2007).

Schmittian efforts to analyse legal ideologies as such are already critical in nature insofar as they typically present their cognitive claims as somehow self-evident and objective truths warranting uncritical acceptance. By contrast, Schmittian analysis seeks to expose the strictly relative and contingent qualities of legal ideologies, their artificially ‘constructed’ nature that is perpetually vulnerable to de-construction and – more generally – being reinterpreted otherwise. It thus analyses them against their own grain precisely to emphasise those distinctly ideological qualities and operations that are too often strategically glossed over as part of a self-legitimating strategy.

Yet, Schmitt expressly rejects the idea that ideology can be adequately understood through the lens of a Marxist dichotomy between materialism and idealism. The latter assigns the study of ideology to either an idealist approach, or reduces it to a mere ‘reflex’ or ‘reflections’ of a supposedly underlying material-economic process related to the capitalist ‘means of production’ (Schmitt 2005b: 42–3). The partial autonomy of cultural, intellectual and scientific realms, including those of a Marxist social science reliant upon a science/ideology dichotomy, is thereby subverted. Schmitt objects that Marxist theories of ideology begin by deploying an undialectical opposition between materialism and idealism, locating ideology as a derivative ‘superstructure’ to an all-determining economic sub-structure. As a result, all superstructural phenomena, ranging from religious belief to the scientific theory of relativity, are ‘explained’ in a reductive materialist fashion as mere causal products of underlying capitalist economic relations. This, of course, rebounds back to undermine the scientific status of the Marxist theory of ideology itself, rendering it little more than a ‘caricature’ of an academic approach (Schmitt 2005b: 42–3). By contrast, the Schmittian model of ideology is far closer to the cultural-interpretative orientation of Max Weber’s sociology of law, which – for all its emphasis on material and technological factors – Marxists typically reject as somehow ‘idealist’.

Liberal ideologies of legality

The category (perhaps more precisely categories) of ‘liberalism’ is complex; it needs to be redefined anew and variously within different moral, economic, jurisprudential and constitutional contexts. A Schmittian approach needs to retain some sense that the liberal constitutionalism of Mill and Dicey has some connection with – as well as a range of differences from – both the economic neo-liberalism of Adam Smith and Hayek, and liberal types of moral and political philosophy.

Provisionally, and as far as the present context is concerned, it is useful to identify as a key feature of liberalism the belief that a modern legal order consists of general ‘norms’ (rule and principles) that determine clearly the relationship of supposedly ‘free’ and ‘autonomous’ individual legal subjects to one another, in terms of their ‘positive’ rights and obligations contained, for instance, in various contractual agreements entered into without coercion.

For present purposes, ‘liberal cosmopolitanism’ appears as a tendency within Kantian and neo-Kantian schools of legal and political theory to advance arguments founded upon the presumed validity of abstractly universal categories, including ‘global justice’, as key to the analysis of international law and international relations. It is currently a highly diverse movement that resists a single definition as divergent strands of cosmopolitan approaches span international criminal law, political theory, international relations, social theory and philosophy. However, Chandler concisely sums up a key tendency: ‘The aspiration to engage in, construct, or recognize the existence of a post-territorial political community, a community of broader humanity, has been articulated in liberal terms as cosmopolitanism, driven by global civil society’ (Chandler 2008: 53).

This tendency aims to supersede the traditional centrality of the modern nation state to domestic and transnational legal analysis. It does so by both promoting universalistic approaches to ‘democracy’, ‘human’ rights and ‘rights’ more generally, and endorsing the growth of ‘universal jurisdiction’ within international law and transnational bodies, such as the International Criminal Court. Typically, all counter-arguments founded upon national sovereignty as the least worst vehicle for optimally democratic forms of citizenship and governance, are presumed anachronistic, unduly conservative, even in one sense ‘false’ (Chandler 2008: 53–4).

Liberal cosmopolitanism typically interprets abstract universal categories and spatially-ungrounded entities as if they are transcendent to, and superior than, existing state-centred legal institutions (Zolo 1997). Hence, the concrete rights of citizens provided for by historically specific and politically contestable constitutional arrangements and statutory measures of particular nation states, are relegated to a lower position on the assumed ‘totem pole’ of rights, and indeed earmarked for redundancy and substitution by cosmopolitan alternatives. This is because of their historical contingency, limited territorial scope and particularity.

After such preliminary clarification of terms, let us now turn to Schmitt’s critical analysis of the ‘ideological’ framework of liberal legality. Schmitt does not claim that liberalism is the only ideological practice relevant to the study of law. However, compared with Marxist, Fascist and anarchist ideologies of the state and law, he devotes far more attention to liberal ideological practices. This is presumably because of their status as a historically achieved and pervasive orthodoxy, particularly when advanced in conjunction with both legal positivism and contemporary, that is, secularised, versions of natural law theories clothed in the rhetoric of ‘human rights’. The contradictions stemming from this marriage of incompatible theoretical foundations, which are rightly analysed within jurisprudence as alternatives, hardly requires further comment. Instead, the important thing here is to notice how effective liberal ideology can be in glossing over these and other contradictions; it does so by promoting an interpretative schema portraying a liberal model of legality as if it were a largely rational, coherent, worthwhile and essential element of social life as such. Schmitt’s analysis of this ideological practice is ‘radical’ in the sense that it seeks to go to the root of its core and underlying assumptions, biases and theoretical presuppositions.

Schmitt argues that, as a complex system of distinctly ideological thought, political commitment and belief, liberalism rests upon a series of largely taken-for-granted dichotomies (Schmitt 2004a: 52). The suspicion of liberal thought towards executive action in general, and administrative and judicial discretion in particular, rests upon the perceived need to set up ideal standards, and then depict institutional realities both through their lens and as their embodiment. These idealisations are founded upon the following distinctions treated as mutually exclusive and ‘either/or’ dichotomies (Schmitt 2004a: 97):

Such ideological practices seek not only to make clear-cut and radical distinctions between supposedly mutually exclusive phenomena but also bestow constitutional legitimacy only upon one side, or half, of the various pairings and oppositions set out above. For example, generally applicable statutes are defined as exhibiting the essence of valid law in general because they manifest the principle of ‘equal treatment’ central to the liberal reinterpretation of the rule of law, whilst, at the same time, firmly disqualifying the other side of this pairing: namely, ad hoc discretionary measures directed at specific contexts, institutions or groups (Schmitt, 2004b: 81).

According to liberal ideology, the legislative state is characterised by the inappropriately named liberal principle of the ‘rule of law’ where ‘“laws govern” not men, authorities or non-elected governments. More precisely: laws do not rule; they are valid only as norms’ (Schmitt 2004b: 4). In other words, insofar as state officials follow the implications of legal norms that authorise and govern their functions, no one in particular ‘rules’ in the sense of being able to assert individualised and personal authority over others. Whilst there is clearly a relationship of ‘subordination to authority’, this concerns not the citizen’s relationship to public officials but rather the latter’s subordination to prior legal norms, which alone authorise their actions in relation to individual citizens. An extreme liberal normativism reduces the conception of the state to that allegedly closed and unified system of norms comprising formal constitutional provisions. Hence, the constitution is treated as the state, with the ‘state treated as something imperative that corresponds to norms, and one sees in the state only a system of norms, a “legal” order, which does not actually exist, though it is valid in normative terms. The legal order, nonetheless, establishes an absolute concept of the constitution because a closed, systematic unity of norms is implemented and rendered equivalent to the state’ (Schmitt 2008a: 63). Lacking any share of state sovereignty, which is ascribed exclusively to law itself, the official’s authority over a citizen stops at the point where they attempt to act beyond the authorisation stemming from the meaning of relevant norms, that is, to exercise extra-normative power: ‘There is no ruling and no [law free] power at all anymore. Whoever exercises power and government acts “on the basis of law” or “in the name of the law”. He does nothing other than what a valid legal norm permits jurisdictionally’ (Schmitt 2004b: 4). Here, regulation by generally applicable norms prevails to the point where ‘all other public functions and substantive affairs must be subordinated to them’ (Schmitt 2004b: 3). This normative reductionism has negative implications for the analysis of welfare state discretion, which will be discussed later.

Because sovereignty attaches to a system of norms, not to specific officials or individuals by virtue of their extra-normative status as serfs, freeman and lords, earlier feudal conceptions of hierarchical social power at whose apex stands a divinely appointed monarch, no longer apply. In this sense, within a modern legislative state ‘where only impersonal, valid norms are applied’, there is no longer any ‘rule’, ‘governance’, ‘obedience’ and ‘subordination’ at all. The sole criteria for the legitimacy of state actions and the ‘state exercise of power’ are that of their ‘legality’. In other words, the system of legislative norms comprising the legal and constitutional systems is therefore ‘closed’, in the sense that either a government act is recognised as legitimate because it is validly authorised by prior norms, or it is not (Schmitt 2008a: 62). There can be neither extra-normative sources of constitutional legitimacy, nor extra-normative grounds for challenging the legitimacy of coercive state actions:

Schmitt gives the example of affronts to liberal standards stemming from allegedly ‘arbitrary’ forms of judicial sentencing that fail to ‘faithfully enforce statutes’, or where judges personally invent new criminal offences not based upon prior statutes, established rules and strictly legal principles (Schmitt 2004a: 28). According to this ideological projection, discretionary decision-making within the legal sphere allegedly represents the unwarranted and unnecessary intrusion of ‘subjective’ factors into a process that both can, and should, be strictly ‘objective’. Schmitt claims that such decision-making is redefined as a fall from grace (Schmitt 2004a: 65).

Liberal ideologies make the assumption that the discretionary ‘interventions’ of state officials into the workings of civil society will always be questionable unless they can be clearly shown to meet at least two decisive tests: first, that these officials are clearly acting with definite and express authority under a specific power; and secondly, that such officials are exercising their decision-making strictly in accordance with the precise requirements of a given set of legal norms or ‘meta-rules’ (‘rules’ of statutory interpretation, the doctrine of precedent, statutory guidelines etc) (Schmitt 2004a: 85–6). Where these two vital tests are met, the belief is that the validity of a decision will become explicable not in terms of the subjectivity and personal authority of those who actually decided the case, their ideological background, gender, generation, class, race, economic interests and so forth, but rather in terms of the objective meanings of the relevant norms themselves (Schmitt 2004a: 18).

On the dubious assumption that the dichotomies it projects are well-founded and strictly necessary to legal thought, liberal ideology promotes the idea that one can study both law and parliamentary law-making as independent topics in their own right; and to the exclusion of the highly pragmatic and selective application and enforcement of law by a variety of different institutions and agencies.

According to Schmitt’s analysis, liberal ideologies aims to promote a strictly rule and meta-rule-based type of decision-making because this is supposed to represent a defining characteristic of a properly functioning modern constitutional state enshrining the rule of law. This feature allegedly sets it apart from, and superior to, the comparative ‘lawlessness’ of both earlier feudal regimes and more recent socialist governments (Schmitt 2004b: 18). Schmitt suggests that liberals follow Hobbes in believing that the only alternative to a legalistic model of decision-making strictly governed by given and determinate rules, neutral procedures and meta-rules, is a return to a proverbial state of nature. That is, a condition of unimaginable strife, desperate disorder and insecurity of both life and property, an ‘orderless struggle of all against all’ (Schmitt 2004a: 62). For example, liberalism requires modern courts to renounce outcome-driven, moralistic or ad hoc forms of decision-making, sometimes equated with equity, in which judges decide in favour of whichever party they find most deserving in terms of criteria of justice and good conscience. According to Schmitt, liberalism thereby generates a distinctly positivistic view of law and the preconditions of a stable, and hence predictable, type of legal order based upon a closed and autonomous system of coherent rules and principles – or ‘legal norms’ (Schmitt 2004a: 65). This positive ideal claims that, properly understood, law consists of a closed system of rules, underpinned by even more general principles.

In short, according to liberalism’s approach, the only legally significant aspect of disputes consists of how such situations can be reinterpreted in terms of – and through the lens of – doctrinal rules, and those requirements and tests for specific remedies contained in these norms. As already noted, the latter is defined as a closed and generally coherent system of rules and principles. This system is supposed to be utterly detached from the clash of interests, or compromise agreements, or even the distinctive internal way of life of the sub-cultural order of a concrete institutional order within which it is taking place (Schmitt 2004a: 94). Whilst the norms themselves are presumed to be ‘in order’, a generally seamless web lacking contradictions or gaps, the existence of a clash of material interests between the parties to a dispute, and hence factual ‘disorder’ in the real-life field of application, is deemed to be entirely irrelevant. Their only relevance is as a source of ‘evidence’ for a doctrinal argument relating to the applicability of a particular legal norm and remedy (do the facts fall inside or outside the doctrinal requirements of a rational legal order), the result of which is to pronounce a certain action as either lawful or unlawful:

Liberal ideology thereby relies upon its own projected dichotomy between norms and facts to justify its assertion that the concrete application of legal provisions to empirical matters both can, and should, operate as an almost mechanical process akin to a train company adhering to the stipulations of its own published timetable, or even the purchase of bottled drinks from a vending machine (Schmitt 2004a: 53). In each case, the users of the system who conform to pre-given and determinate normativist requirements can, according to liberal ideology, reasonably expect to receive a measure of certainty of outcome. This is because each element of the legal system follows set rules, routine adherence to which regularly trigger standardised results in an orderly, and hence predictable, fashion. It is their comparative autonomy vis-à-vis every instance of their application that allows us to identify these rules with a high degree of certainty (Schmitt 2004a: 65).

According to liberal ideology, doctrinal certainty is possible because judges can arrive at a single correct answer to legal questions if, but only if, they strictly apply the objective tests and requirements contained in the clearly identifiable contents of the relevant norms. This is because the ‘answer’ to any distinctly legal question arising during litigation is assumed to be already substantially contained in the objective meaning of the inviolable norms themselves (Schmitt 2004a: 65). However, certainty in relation to the meaning and applicability of legal doctrine is possible only if those who interpret and apply the law succeed in subordinating their subjectivity to the ‘objective’ meaning of the contents of these rules themselves, thereby respecting the principle of legality already discussed.

In short, on Schmitt’s account, liberal ideology needs to give the ideals of certainty and predictability an extremely high priority as goals for a healthy system of law and well-ordered and stable civil society, in which citizens can trust in the reliability of both legal advice and their various arrangements. The problem that such ideology glosses over and suppresses is that many of the factual events that impact upon legal developments are essentially ‘exceptional’, that is, unpredictable and unexpected. In turn, these can result in judges generating decisions with similar qualities. Positivism betrays its own principle of positivity by discounting this element of the concretely experienced reality of law (Schmitt 2005a: 6–7, 13–15).

The model of ‘normal’ social life presupposed by liberal ideology is that of legalism writ large, that is, a ‘calculable functioning of human relationships … as a mere function of predetermined, calculable, general rules’ (Schmitt 2004a: 53). It is claimed that one result of a general adherence to clear legal rules is that civil society can operate smoothly in a standardised and predictable fashion. The ‘trust’ that members of civil society rightly place in the reliability, security and robust quality of transactions regulated by legal norms would, it is claimed, be betrayed if ad hoc, consequentialist and case-by-case forms of legal decision-making were ever allowed to introduce uncertainty (Schmitt 2004a: 66):

For Schmitt, ‘individualistic legal-certainty’ with respect to both the meaning of legal rules and reliable predictions concerning how these rules will be judicially applied to a range of actual or future factual situations, represents a key ideological value that also gives effect to a vital constitutional imperative (Schmitt 2004a: 66, 90). It provides the basis for other characteristics of liberalism, including ‘well-founded’ attempts to strictly limit the legislature’s deployment of ‘general clauses’ in statutes, such as references to ‘good faith’, ‘reasonable in all the circumstances’ or ‘in the interests of justice’. Such broad terms, often associated with welfare state provisions, are deemed to be problematic. This is because their single correct meaning of the rules within a closed, unified and complete system of strictly internal norms cannot be ‘pinned down’ in advance with any degree of certainty (Schmitt 2004a: 90–1):

Schmitt further claims that such general clauses represent the ‘cuckoo’s egg’ in the nest of ‘the liberal legal system’ (Schmitt 2004a: 91).

Liberalism’s ideological projection of its notion of strict legality is, of course, entirely self-serving because it generates an image of liberal legality as pre-empting an ultimate collapse into anarchy. Liberal ideology thereby raises itself up to the vital and elevated constitutional position of ‘resolute defender’ of threatened legality, order and security. Furthermore, the importance liberal ideology places on the interrelated values of legal certainty, the alleged ‘determinacy’ of doctrine, and the resulting ‘predictability’ of law, sets up an ideal of legalistic decision-making, seldom borne out in practice, thereby precluding empirical issues and analysis (Schmitt 2004a: 65).

More generally, the rule of law principle becomes ideologically reinterpreted to mean the complete domination of the legal system by liberalism’s own preferred definition of law: law as a closed and politically independent system of generally applicable and objective rules. Hence, Schmitt claims that in order to comply with liberal standards of the rule of law, any decision concerning the legal rights and obligations of specific parties in a concrete case must be clearly ‘mediated by pre-established, general norms’ and fully and exclusively manifest the rule of these norms themselves (Schmitt 2004b: 5). Decision-making by reference to extra-normative standards thus violates the expectations generated by liberalism’s ideological model of the rule of law.

Difficulties and contradictions with liberal ideologies

Schmitt argues that, at empirical, policy and conceptual levels, liberal ideologies lead to many negative consequences. The remainder of this section will address these unfortunate results for any realistic form of legal analysis concerning the conception of law, the alleged ‘determinacy’ of legal norms/categories, the inevitably interpretative nature of the legal process and, finally, the creative or legislative aspect of the judicial role. To ensure and reiterate the credibility of its overall ideological orientation, however, these difficulties and contradictions have to be ignored, glossed over or otherwise disguised.

An unduly narrow definition of law

The first cluster of difficulties Schmitt identifies concern liberalism’s ideological deployment and enforcement of an unduly narrow definition of law, and hence legal analysis, research and education. Its positivist or ‘black letter’ model of law effectively reduces the field of law to the study of a closed, given and unified system of doctrinal rules detached from social contexts of emergence and application (Schmitt 2008a: 62 ff). This is because other social and political elements, which prior to the emergence of liberalism were generally considered essential, such as sovereign decision and the re-establishing of either a social order, or sub-cultural institutional orders challenged by a dispute, have been effectively eliminated from legal analysis and discussion.

For example, Schmitt expressly contrasts his own realist interpretation of constitutions as historically specific embodiments of the collective political values and will of a specific people and concrete type of state formation, which helps cement a substantive ‘condition of political unity’ and a concretely existing and distinctive type of order and orientation of a specific state, with the emptiness and formalism of a purely normativist interpretation. That is, a constitution reinterpreted as a ‘closed system of norms’ that allegedly comprises the sole and absolute legal significance of the state itself (Schmitt 2008a: 59). Schmitt thereby aims to highlight the abstract character of any form of legal analysis dominated by the ideological agenda of liberal normativism, its lack of sociological realism concerning, for example, how specific relations of power, command and rule involving concrete forms of supremacy and subordination permeate both public law and concrete forms of the state’s existence, or state forms, such as aristocracy, republicanism and democracy (Schmitt 2008a: 60). It is patently absurd to seek to analyse constitutions, such as those of America, Germany, Ireland and France and post-communist Eastern European states, in purely normativist terms, that is, divorced from any consideration of the successful political revolutions that first made their distinctive value-orientations possible in the first place. The normativism promoted by liberal ideologies cannot but generate a purely formal conception of sovereignty lacking empirical realism, as if laws create, modify and apply themselves independently of interest-driven social actors and institutional processes. As Schmitt notes, ‘It is also possible to designate the constitution as “sovereign” in this [Kelsenian-normativist] sense, although that is in itself an unclear form of expression. For only something existing in concrete terms can properly be sovereign. A merely valid norm cannot be sovereign’ (Schmitt 2008a: 63).

Another difficulty with liberalism’s ideological conception of law concerns its lack of historical analysis and resulting preference for static modes of legal analysis concerned, for example, with ‘the meaning’ of ownership or property or contractual agreement. In this context, Schmitt complains that ‘the sharp separation of static and dynamic has something artificial and violent about it’ (Schmitt 2008a: 61). Indeed, he contrasts such normativism, whose modes of analysis are typically static, abstracted and non-contextual, with more historically oriented and process-oriented approaches to constitutional law. These recognise the ongoing ‘dynamic’ and forever emerging element of social and political will-formation and collective ‘decision’, including revolutions, as an important source and dynamic of law. That is:

Because by means of its law/politics dichotomy liberalism brackets out analysis of ‘the political’ in favour of its own depoliticised and narrow conception of ‘the legal’, it prevents itself from recognising the politics of law, its rootedness in the social formation and ongoing reiteration of collective political will-formation, including the various forms of citizens’ participation within the political process (Schmitt 2008a: 61). And yet the reality remains that successful political and sometimes even social revolutions often lie at the heart of new constitutions and constitutional settlements, such that constitutional history remains one aspect of a wider social history of political transformation. Here, the normative content of such constitutions, its various clauses and articles studied by public lawyers, cannot be understood other than as an articulation of these new and ongoing political realities. Normativism remains fixated upon that which is ‘positive’ or positively ‘given’, and thus fails to recognise the extent to which modern law:

Schmitt argues that liberal ideology’s narrowly positivist and formalistic conception of law, reliant upon questionable dichotomies and one-sided conceptual prioritisations, leads to other difficulties. In particular, liberal-positivism remains overly concerned with internal legal system issues concerning technical origins and respect for meta-rules; it thereby fails to account for the effectiveness of legal norms in practice, the extent to which they are obeyed and achieve their stated or implied goals (Caldwell 1997: 86). Thus, another strand of Schmitt’s critique of liberal ideology is indebted less to jurisprudence than to empirically informed social science studies of law, which today are termed socio-legal studies. His criticism insists that viable forms of legal analysis cannot avoid drawing upon the resources of social science methods and the results of concrete empirical and contextual studies of law in action, which for example treat the constitution as a really existing cluster of institutional practices prevailing at a given time (Schmitt 2008a: 59–60, 62–3).

According to Schmitt, properly conceived legal analysis is an interdisciplinary project that draws necessarily on the detailed results of historical, philosophical and social science studies. This, of course, contrasts most markedly with the normativism of liberal ideology, manifested most emphatically within the ‘pure theory’ promoted by Kelsen conceived of as part of a ‘stand-alone’ form of ‘legal science’. Schmitt thus insists on the appropriateness of a distinctly contextual form of legal analysis, which gives close attention to the ‘problem of the realisation of law’ (Schmitt 2005a: 21). This broader model of law and legal analysis contrasts markedly with how the narrowly doctrinal approach of liberal normativism focuses on norms ‘as such’, to the strict exclusion of questions concerning the nature and differential political impact of both judicial interpretation and application of legal norms and other considerations of the politics of selective law enforcement/non-enforcement.

Schmitt recognises that a case can, perhaps, be made for grounding legal analysis in either of these two theoretical positions. However, liberalism’s ideological practice of merging this marriage of incompatibles, and shifting in an unprincipled and opportunistic way between them, cannot but generate all manner of contradictions. Whilst properly enacted legislation providing for the complete nationalisation of private property would be rejected by one strand of liberal ideology as an attack on universal and absolute human rights whose validity is independent of their recognition by the ‘positive-legal reality’ of domestic state law, the other positivist element would surely have to recognise it as valid law. That is, as an actual and positive provision whose normative content needs to be accepted and analysed purely as such, free from any ‘external’ moral or political objections. This is because for such liberal types of legal positivism only positively enacted laws, whose pedigree is fully compliant with given constitutional protocols, count as valid law at all.

The positivist dimension of liberal positivism reduces to the tautology of an uncritical affirmation of what is the case because it currently exists: ‘something is valid when it is valid and because it is valid’ (Schmitt 2008a: 64). Questions of whether property ‘should’, in principle, be privately or publicly owned fall outside the scope of objective legal analysis and jurisprudence respectful of its own limits. In other words, liberalism’s distinctly political project of normativism may perhaps exhibit a certain coherence if considered strictly in its own terms, that is, as a polemical rationalisation of one set of socio-economic interests against all rival agendas. However, when it is articulated in the manner of Kelsenian legal positivism, for example, as a ground for a supposed non-political or ‘pure’ theory of law, blatant contradictions and ‘confusions’ inevitably arise whose ramifications in practice can be disguised but not eliminated.

Exaggerating the determinacy of legal doctrine

Another series of difficulties created by the application of liberal ideology concerns its exaggeration of the ‘determinacy’ of pre-defined legal norms. To vindicate its own assumptions and overall belief system, liberal ideology thus promotes the idea that, within a modern liberal regime characterised by the rule of law and an independent judiciary, legal rules and principles are generally ‘determinate’ that is, definable, stable and – at their core – largely fixed.

To counter the threat of indeterminacy, and hence doctrinal ‘uncertainty’, liberal ideology insists each and every example of law application, no matter the degree of factual variation and uniqueness in the circumstances, both can and should – as a matter of reason and logic – be subsumed as an instance of a general ‘type’ of case for which standardised rules apply: ‘Every law is reduced to the norm, which is separated from the circumstances; the rest is “mere fact” and the opportunity for factual “confirmation of the law”’ (Schmitt 2004a: 62). In other words, to remain rational and scientific, legal analysis should only address the facts of any individual law report insofar as the reason for the decision (ratio decidendi) gives effect to a more general doctrinal rule. Students of law are thus supposed to ‘learn the case-law’ only to illustrate formalistic models of legal doctrine, not to examine the empirical vagaries of judicial practice in this area.

This ideological conception of the ‘determinacy’ of legal doctrines positively reinforces liberalism’s wider model of the rule of law. This is because state officials, including judges, are – it is claimed – positively required to adhere to pre-defined, precise and clear standards, something which allows little scope for legitimate forms of discretion. For those who accept this ideological vision, it follows that a legal decision is ‘correct’ insofar as any other ‘reasonable’ decision-maker, faithfully applying the objectively ‘valid’ legal tests to the properly identified ‘material facts’ of the case, would have been compelled to arrive at the same conclusion. In other words, proper legal analysis must exemplify a type of judgement grounded in a ‘correct’ (that is conventional) identification of the ‘relevant’ law, combined with an equally ‘correct’ interpretation of its determinate meaning and scope of application. Liberalism thus portrays the reality of the legal system through the lens of its ideals of doctrinal ‘determinacy’; it thereby disregards the contrary insight of qualitative social scientific approaches to the legal process that routinely demonstrate the limits of the idea that the formal or paper rules concretely and fully determine legal outcomes.

According to Schmitt, an additional negative consequence stemming from how liberalism exaggerates doctrinal determinacy concerns the self-serving disguise of ideological manipulations of the language of legal devices, such as international treaties and conventions. Imperial states have an interest in exploiting linguistic indeterminacy of legal language, whilst at the same time denying this by claiming their practices are strictly following the letter of the law. For Schmitt, the United States articulates one aspect of its imperial power over international relations and law through its regular capacity to shape how semantic-interpretative issues are determined, and have these accepted as those of the ‘international community’ itself (Schmitt 1932/1988: 199).

This is a point that one of Schmitt’s commentators and – in part – leading exponents within contemporary international law scholarship, Martti Koskenniemi, has further developed. He characterises linguistic manipulation as a vital technique of US hegemonic control and possible contestation, as a concrete example of the friend/enemy distinction that Schmitt claims is characteristic of ‘the political’: