Political myths underpinning democracy

Political myths underpinning democracy

Schmitt insists that the public legitimation of the authority of democracies is as important an ongoing institutional task as it is for either monarchies or dictatorships. How does Schmitt’s interpretations of political myth connect to the project of promoting and stabilising democracy? The opening premise is that the legitimation and acceptance of any mode of governance is distinctive. It is different in kind from those ultra-rationalistic and strictly cognitive processes that supposedly take place during the verification, or falsification, of a scientific or philosophical hypothesis through the gentle force of better argument based on compelling evidence. Whether such a belief is itself largely mythic is not at issue here. The point, all too clear from the 20th-century history of European and Latin America, is that many distinctly extra-cognitive interests and concerns are relevant to basic constitutional choices. These include life and death issues and commitments to a range of mythic beliefs. Such interests are affected by a nation’s collective choice in favour of, say, direct democracy, as opposed to monarchy (constitutional or otherwise), dictatorship (fascist or Marxist), parliamentary democracy or theocratic modes of governance.

For example, consider a situation where a range of knowledgeable international experts unanimously suggested a temporary period of extra-constitutional dictatorship through a coalition government of ‘national unity’ because this offers the best way of ending a murderous civil war or economic crisis, and thereby re-establishing relative peace, order and security. Such a purely cognitive form of judgement would, however, represent but one amongst many other factors that citizens of that state would probably have to weigh up before casting their vote in a referendum on this matter. A range of other emotive, religious, moral and cultural factors – including beliefs concerning the ‘true nature’ of that particular people’s established political culture (and perhaps religious background) – may well press in the opposite direction. That is, of preserving even a chronically ineffective, or deadlocked, form of democratic governance analogous to the last years of the German Weimar Republic. In other words, when faced with such a fundamental decision where the future of democracy is at stake, a range of cognitive and extra-cognitive, rational, non-rational and irrational beliefs can be expected to come into play. Any suitably realistic form of constitutional theory must both recognise and account for these factors. In turn, this requires us to take seriously the nature and rhetorical impact of specific political myths upon the practice of democratic decision-making.

It may follow from this that if would-be defenders of democracy act as if the primary or sole grounds for their preferred mode of governance are academic ideas widely accepted by experts, then they could be fatally undermining the substance of their own position. The risk here is that such defenders of democracy will, because of their rationalistic prejudices, fail to extend their defence into less cognitive – but equally decisive – spheres. These include the substantive power of customary shared understandings operating within particular families, neighbourhoods and regions. Other factors may include: political rhetoric, expectations of benefiting personally from political patronage, localised tribal attachments to a specific leader (perhaps on the grounds that he or she is ‘one of us’, a ‘man of the people’), and – most relevant for present purposes – the affective power over citizens of various mythic beliefs and cultural symbols.

Arguably, it is here that we must recognise the contribution of mythical images and symbolism to the aesthetic dimensions of such legitimation. The latter must prove themselves capable of capturing the imagination and crystallising the affections of citizens as distinctive emblems expressing ‘who we are’, and that territorial political unity to which we feel ourselves as belonging to in various affirmative, neutralised and oppositional modes. An inspirational image and symbol of democracy must constitute a sum that is greater than the totality of all its various and typically mechanistic parts. The idea of either a constitutional monarch or an elected President serving as both a ‘ceremonial figurehead’ for, and a distinctive emblem of, one’s particular nation, is needed to effectively render the nation publicly visible, legible and present to itself in a symbolic manner (Schmitt 2003: 349; Pan 2009a: 83). When this leader speaks, he or she gives voice to the nation itself. The emblems of the state as a whole, including its name, need to cohere with and symbolise particularistic myths of ‘this nation as our nation’ (Schmitt 2003: 348). This is needed if they are to exert the degree of ‘visibility’ necessary not only to differentiate one state from all others but also to distinguish it from other large-scale corporate bodies.

In this context, a Schmittian approach provides a useful corrective and supplement to the gaps created by the one-sided rationalism of more conventional approaches to democracy. It does so by acknowledging and theorising the role played by a range of other, extra-rational factors as determinants of both pro- and anti-democratic positions, including most notably the rhetorical power of political myths relevant to the stabilisation of democratic modes of governance. Here, we can identify an important rationale for public law scholarship studying specific political myths. These include those that press in a distinctly anti-democratic direction, but whose limitations and rhetorical appeal also need to be optimally, and perhaps urgently, understood.

Schmitt’s critical analysis of political myths as an ‘arbitrary historical force’ has the advantage of recognising their potential to exert a dangerous influence within democratic contexts in favour of tyrannical forms of governance (Schmitt 1988: ch 4). A type of legal scholarship oriented towards the defence of democracy requires an insightful knowledge of the methods of the latter’s most committed enemies, their strengths, potential rhetorical sources of mass appeal, blind spots and limitations. In this context, a refusal by constitutional scholars to take these issues seriously on the basis that the rationalism of mainstream legal methods of a broadly positivistic nature are incapable of answering them, is simply perverse, and potentially counterproductive. It is likely that only flawed and grossly compromised academic studies of constitutional affairs can thrive under a dictatorship.

By contrast, Schmitt suggests that any viable legal theory of democracy must account for the processes through which democratic sensibilities and expectation first emerge, and take root as an integral part of a prevailing interpretative framework, before becoming largely taken for granted amongst citizens. He proposes an approach resembling a qualitative social psychology of actual and potential popular attachments to democratic values. In this context, it may be useful to address his discussion of the rhetorical power and achievements of specific mythic beliefs, cultural symbols and images. Amongst these are analyses of the position of a democratically elected President within the Weimar Republic (Schmitt 1931) and various public mechanisms of ‘direct democracy’, such as public rallies, referendum and votes taken at mass meetings and public rallies (Schmitt 2008b). At the same time, Schmitt’s extensive studies of the institutions and constitutional doctrines of the Weimar Republic are both predicated upon, and take for granted, the continuation, perhaps in a more coherent and revised form, of an essentially democratic form of this constitutional settlement. In this respect, Schmitt’s late Weimar writings remain ‘enchanted’ with democracy, including a number of its underlying mythic beliefs, commitments and symbolic figures.

Given this weighty pre-investment and presuppositions, it is hardly surprising that his work also takes seriously and critically discusses the role of distinctly modern political myths relevant to questions of state legitimacy. In particular, he addresses how two major anti-democratic movements, revolutionary socialism and – less extensively – Italian fascism under Mussolini, have, with varying degrees of ‘success’, deliberately created and deployed specific political mythic beliefs and symbols (Schmitt 1988: ch 4).

There is a real danger here that needs to be confronted at the outset. Schmitt’s discussion of such ‘dangerous irrationalist myths’ exerting an ‘arbitrary’ and ‘unpredictable’ historical force includes extensive paraphrasing of, for example, George Sorel’s syndicalist myth of the general strike. If it is read and quoted carelessly and out of context, snippets of Schmitt’s analysis could be interpreted as a simple endorsement of Sorel’s theory and its specific socialist myths. The same point applies to his discussion of right-wing counter-revolutionary myths, including those of Mussolini (Schmitt 1988: ch 4). With the benefit of the 20/20 vision that accompanies hindsight, it is possible to strongly criticise Schmitt here. In particular, to highlight a failure to carefully distinguish between Schmitt’s descriptive-analytical expositions of Sorel’s main claims for example, from what is distinctive in his own approach to political myth. As a result, it is far from clear which aspects of Sorel’s account are compatible with a remodelled Schmittian analysis.

It is important to emphasise that the essential thrust of Schmitt’s theory of political myth in the late modern period remains supportive of democratic values as an inevitable and necessary ground for state legitimacy. Indeed, many disenchanted contemporary readers may find such acts of faith excessively naïve, Eurocentric and lacking theoretical radicalism. Schmitt’s careless discussion that fails to distinguish commentary upon ‘irrationalist myths of direct action’ from his own distinctive position, has certainly proved problematic. It makes it all too easy for defenders of anti-democratic movements, including Marxist-Leninism and Fascism, to seize upon and quote a sentence of his work here and a paragraph there – and misinterpret these as if they provide clear support for their own positions. A similar point can be made of his criticisms of the self-undermining mythic underpinnings of parliamentarism. As already noted, liberals all too easily misunderstand this as a destructive blanket critique of liberal constitutionalism, even democracy itself (cf Scheuerman 1995).

Fortunately, it is now becoming clearer that Schmitt’s Constitutional Theory provides a clear rebuttal to critics, such as Scheuerman, who confuse his critique of how the practices of parliamentary forms of liberal democracy have lost public credibility because of their failure to live up to the principles that alone justify them, with an essentially anti-democratic stance (cf Scheuerman 1995). Such confusion and conflation of part with whole is akin to claiming that my dislike of computer-generated disco music necessarily means that I have no musical taste whatsoever. Indeed, the recent scholarship of Mouffe (1999b) Kalyvas (2008: 146–62) and Pan (2009a: 86–97) has challenged – and at least partly overcome – this dubious aspect of earlier scholarship on Schmitt.

Such displacement has occurred through their recognition that Schmitt’s Constitutional Theory constitutes a genuine, if not entirely successful, attempt to provide a credible and robust model of democracy. The latter is founded upon a cultural theory of representation that aims to be more robust than the liberal-democratic alternative. In particular, Schmitt provides both rational theoretic and mythic endorsements of this revised approach to democracy by linking sovereign decisions to a scaled-down and pragmatic theory of popular sovereignty. Institutionally, the latter is rooted primarily in the office of a President equipped with not only rational but also symbolic and legendary forms of authority. These, in turn, connect a continuing cultural tradition of stable values with ongoing events within the public sphere (Schmitt 1932/1988).

Schmitt’s popular sovereignty and cultural model of democracy, whose character will be discussed further below, contrasts markedly with those of both Marxism and liberal constitutionalism. He suggests that both these traditions engage in myth-making by superimposing ‘an entirely general ideal concept’ upon democracy. In turn, this results in the ‘greatest lack of clarity’ because the concept is grossly expanded at the cost of its specificity to embrace ‘everything that is ideal, beautiful and appealing … justice, humanity, peace and international understanding’. It also leads to its confusion with the aspirations of distinct and incompatible political movements. This over-extension and diffusion even allows communists, anarchists, liberals, conservatives and even monarchists to promote themselves as ‘democratic’ movements in some conveniently vague sense (Schmitt 2008b: 257). Schmitt’s study of parliamentary democracy complains that ‘a feeling for the specificity of principles seems to have disappeared and an unlimited substitution to have taken its place’. Such over-extensions are also dangerous because they render the concept of democracy so elastic that it becomes almost meaningless, and thus an ineffective benchmark standard.

Schmitt’s critique is not entirely negative or destructive. On the contrary, it affirms a more realistic and contextually grounded conception of democracy, which is founded upon the principle of a citizen’s equal rights within a nation state: ‘a precise and substantial concept of equality’ (Schmitt 2008b: 257).

Schmitt’s model of democracy can be reasonably criticised for being unduly narrow, incomplete and, perhaps, focused excessively upon questions of legitimacy and equal rights, at the expense of issues concerning different facets of individual freedom. However, it still emphatically remains a democratic model that is far more receptive to the support democracy receives from a political culture rooted in mythic foundations than various liberal alternatives, which remain trapped in one-sidedly rationalistic delusions. And yet for those who, whilst still intoxicated with liberal myths, continue to equate democracy with liberalism, and thereby remain entranced with the oxymoron ‘liberal democracy’, a Schmittian approach will inevitably appear perverse. Schmitt recognises that this confusion was understandable in the 19th century because ‘parliamentarism advanced at the same time and in the closest alliance with democracy, without either of them being carefully distinguished from the other’ (Schmitt 1988: 2). However, from the early part of the 20th century, their differences and incompatible ideas have become ever harder to ignore (Schmitt 1988: 2). Schmitt’s attempts to extricate the core defining ideas and institutional practices of democracy from liberal beliefs and institutional practices, including parliamentarism, will – given their prejudices and self-serving equation of democracy with liberal-democracy – typically appear to liberals as necessarily and essentially anti-democratic.

Democracy, for Schmitt, is integrally linked to ideas and practices of modernisation, progress and scientific enlightenment, and thus often (mis) interpreted as a myth-transcending phenomenon in general. For instance, the democratic movement’s historical transcendence of the feudal myth of the ‘divine right’ of Monarchs, and hence the feudal social order more generally, is supposed to be highly significant. It allegedly represents merely one illustration of a far wider progressive tendency for the pure light of reason to drive out the darkness of superstition, prejudice and mythologies.

For his part, Schmitt certainly recognises that, from 1848 onwards, the triumph and rapid extension of democratic principles and assumptions demanded recognition as a possibly irreversible and epoch-changing historical event. That is, an event whose achievements, including even the ‘lesser evil’ of deficient parliamentary forms of democracy, must be safeguarded against various anti-democratic movements. These include not only Royalist attempts at restoration and communist movements, but also both institutional and doctrinal aspects of modern liberalism that resort to various constitutional doctrines to frustrate the potentially redistributive potentials of mass democracy (Schmitt 1988: 2–3; Seitzer 1998; Kalyvas 2008: 79–87, 96–100).

According to Schmitt, democracy is both a ‘genuine political concept’ and one of a number of competing state forms and modes of governing (Schmitt 2008b: 265). Myths related to democracy, as variously defined, have, therefore, to be considered as including distinctly political aspects. The rationale for a democratically oriented public law scholarship taking such political myths seriously is not to affirm such ‘irrational’ deployments of extra-parliamentary ‘direct action’ designed to sweep away established constitutions, or even repress the very idea of constitutional governance of any kind. Instead, it is rather to provide measures to boost, or otherwise defend, the perceived legitimacy of democracy itself, which – in some form – Schmitt characterised as essential to any truly modern European state (Schmitt 1988: 30; Kalyvas 2008).

There is, from a Schmittian perspective, no justification for confining discussions of democracy to abstract normative ideals divorced from historically specific institutional practices and actual modes of governing. It is a vital quality of democracy that even where there are disagreements as to particular matters, ‘the people’ can typically identify with the general orientation of their government and vice versa. A Schmittian approach to constitutional law includes the central claim that a modern theory of democracy must be receptive and sympathetic to specifically mythic aspects of this institutional practice and its reinterpretation by citizens. However, and for reasons the last section discussed, it is equally important for scholars not to allow themselves to become seduced into an uncritical and overly enchanted orientation: one that jettisons the distinction between mythic and rationally grounded beliefs, akin to abolishing the basic distinction within libraries between works of fiction and non-fiction.

Schmitt’s attempts to salvage and extricate a viable and appropriate model of democracy from the oxymoron ‘liberal-democracy’ include providing a critical analysis of the contemporary relevance of those myths that underpin the latter. This approach is fraught with dangers. It almost invites misunderstanding from liberals in particular, who assume that even a Schmittian critique of non-democratic elements of liberal democracy, which are made in the name of other, distinctly democratic elements, necessarily amounts to an attack upon democracy itself (Pan 2009a: 86; cf Scheuerman 1995). It is, therefore, necessary to be absolutely clear on one point: in comparison with the qualified model of ‘direct’ or ‘plebiscitary democracy’ that Schmitt endorses, much of what parades itself as ‘democratic’ within the modern world is not fully, or evenly partially, democratic at all. Such defective, or counterfeit, instances deserve to have their mythic self-images clearly exposed as such. This is another sense in which a Schmittian model can identify and then address ‘democratic myths’. In other words, it is necessary to appreciate that many counterfeit, or ‘so-called’, democratic practices merit critical analysis precisely because of a discrepancy between their self-definition and the implications of their actual practices. Included amongst these states are many identified with both liberal constitutionalism as well as old-style socialist ‘people’s democratic republic of X’.

Of course, judgements of democratic credentials in this area hinge upon the content of the particular and indeed context-specific definition of democracy being deployed to distinguish supposedly authentic from counterfeit democracies. If a Schmittian interpretation is worthless because it fails to grasp core aspects of this distinctly political concept, then the probable result would be to invalidate its critical approach to ‘democratic myths’, that is, counterfeit democratic practices, with a Schmittian critique itself becoming purely mythic. Therefore, a key task is to further clarify Schmitt’s broadly phenomenological description of the idea, practice and ideal of democracy itself as a potential benchmark standard immanent to many existing political cultures, and to describe any underpinning mythic beliefs.

A Schmittian model of democracy is rooted in a commitment to popular sovereignty; it thus emphasises the need for a government that aspires to be recognised as democratic to both embody and demonstrate responsiveness to the orientation and concerns of ‘the people’. It also requires states to clearly respect the principle that ‘state power and government derive from the people’ (Schmitt 2008b: 265). This model also rejects the elitist idea that governments are entitled to dismiss as ‘ill-informed’ clear and overwhelming expressions of popular will concerning not only general principles of governance, but also the overall direction of government policy (Schmitt 2008b: 264).

For Schmitt, democracy is best understood as ‘the rule of a people over itself’ rooted in a concrete commitment to equality. As such, it is certainly an internal ideal of many, if not most, modern types of society to be ‘strived for’. However, this substantive understanding of democracy provides a legitimating rationale for a range of concrete and historically specific institutional practices expressed in terms of substantive political equality of all citizens. These practices range from government’s constitutional obligation to stand for regular election, to the legislative removal of all gender, property and age discriminations with respect to eligibilities to vote in elections (Schmitt 2008b: 264).

Schmitt clearly recognises that an optimally democratic state will necessarily involve a factual and material distinction between governments and the governed. There may be a range of meritocratic differentiations allowing those with especially relevant skills in, say, public health issues or concerning national security or military imperatives, to contribute their distinctive expertise and valuable personal leadership and administrative skills in the cause of government service. Their expert judgements are likely to be treated as generally authoritative, even where they are unpopular in a specific case (Schmitt 2008b: 266). However, the vital thing for Schmitt’s model of democracy is that such differentiations between government and citizens are maintained only in a manner that, despite occasional controversies, commands widespread ‘public trust’ and ‘the confidence of the people’.

In addition, these distinctions must arise and operate within a broadly shared and overarching orientation committed to values of political equality of all citizens, which, for example, precludes apartheid or slavery. They must, therefore, appear as differentiations not between two utterly discrete groupings: the people and their rulers with the latter understood as a self-replicating ‘ruling caste’. Instead, they must be explicable as strictly relative, contingent and indeed conditional differences within a common, if factually pluralistic, ‘people’. Whilst a leading government public health official may, for instance, be entitled to issue authoritative regulations in relation to, say, a foot and mouth outbreak, he or she remains just another citizen with respect to, say, anti-terrorism emergency powers measures formulated by another expert, and vice versa. In particular, there must not be two separate and discrete classes involving a stark qualitative distinction in kind between a ‘special class’ and the rest. That is, between a stable and self-replicating governing elite who have become uprooted from popular sentiment by usurping the idea and institutional practices of ‘the nation’ (and the ‘national interest’) as their own playthings, and the remainder of comparatively second-class citizens whom it is assumed are destined merely to toil and silently obey their superiors: ‘In a democracy, whoever governs does so not because he [sic] possesses the properties of a qualitatively better upper class opposed to an inferior lower class. That would naturally eliminate the democratic homogeneity and identity’ (Schmitt 2008b: 266). It follows that to be democratically legitimate, the distinction between government and the governed must remain explicable as an act or process of political self-determination by the governed themselves, not a self-differentiation from their ‘fellow citizens’ by a prior and continuing ‘special class’ (Schmitt 2008b: 266).

By reference to this benchmark, insofar as many formerly socialist regimes afforded special privileges to members of the Communist Party, thereby creating a two-tier form of citizenship, their constitutional pretensions to embody a democratic egalitarianism became mythical in practice. Without self-delusion, citizens of a genuine democracy must be able to subjectively feel that it is ‘their’ government that is acting on a ‘commission’, or mandate of principles, which they and fellow citizens have granted, and – if need be – can later withdraw (Schmitt 2008b: 264).

For Schmitt, it follows that where a state’s political leadership demonstrates through its act and omissions that it has become unresponsive to, or otherwise out of touch with, expressions of popular sentiment, then a democratic deficit will inevitably arise. What if referenda, petitions and public opinion surveys make clear that the mass of the people favour an extension of the welfare state, whilst the government insists on implementing the opposite policy? In this situation, the democratic ‘contract’ between the governed and the government, the idea that this differentiation has to operate within an overarching commonality, or ‘identity’, will be shattered, probably leading to a legitimacy crisis.

Schmitt’s emphasis on ‘democratic identity’ stems from, and positively supports, the classic notion that in a ‘normal situation’ where emergency powers and martial law are unnecessary, democracy entails government of, for and by the people, that is self-government interpreted as a manifestation of a democratic right to self-determination (Schmitt 2008b: 264). Here, ‘identity’ does not mean a purely formal or normative identity of the kind contained in a constitutional declaration handed down from on high and containing abstract definitions of, say, nationality and citizenship rights. Instead, it is a real and concrete existential identity, a shared mode of being that citizens commonly experience and widely define for themselves as subjectively real.

Democracy, for Schmitt, thus includes a context where citizens possess a deep-seated ‘sense of belonging’ to a specific and distinctive ‘demos’ to which they are personally committed. On this basis, they can – without deception or self-deception – feel part of a distinct and broadly unified people, whose thoughts and actions both exhibit and reiterate a distinct and broadly shared sense of national identity. Members of a democratic state must, therefore, be able to experience themselves not merely as indifferent and universal ‘individuals-in-general’ (as generally demanded by individualistic liberal ideologies), but rather as citizens of a particular nation state with which they identify as their own life-element and medium of belonging. Such ongoing acts of identification, sometimes expressed in support for military forces in combat or national sports teams of various kinds, are not politically neutral. Instead, they participate in a commitment to sustain the perceived integrity and pride of the nation as a whole as their own cultural life-element.

It is implicitly recognised by Schmitt that one’s people or nation is not a ‘given’ who’s integrity, cohesion and continued existence can be taken for granted. On the contrary, this status remains an ongoing accomplishment involving its member exercising political will and commitment to sustain and defend it from a range of potential internal and external threats. Every nation can be haunted by the spectre of former nations, that is, once vital and distinctive nations that their citizens allowed to collapse through assimilation, repression or simple abandonment: ‘On the whole and in every detail of its political existence, democracy presupposes a people whose members … have the will to political existence’ (Schmitt 2008b: 264). Hence, where the majority of Scots no longer subjectively identify with a British national identity, and prefer to define, or redefine, themselves as a separate ‘nation’ demanding a distinctly Scottish form of sovereign government, then that is their democratic right. This trumps any statements to the contrary in an ‘Act of Union’ agreed between aristocrats and monarchs alone many centuries ago, or even perhaps accession into the EU. Equally, if the majority of self-defined Scots were later to become disillusioned with the practical realities of sovereign nationhood and national independence, and sought an alternative constitutional arrangement, then that quest would also be an expression of their democratic right of self-determination. Of course, no other nation, least of all the English or Welsh, would be under any particular obligation to accommodate this desire.

A democratic form of ‘national identity’ in this sense is not a given, let alone a result of legislative decree or judicial declaration. Instead, it is a distinct nation’s continuous performance and collective accomplishment arising from the ‘bottom up’ as it were, and thus in defiance of all types of top-down imposition. A counter-concept to Schmitt’s notion of democracy was the imperialist practice of the old Soviet Empire in forcing atheist identities upon all citizens of subjugated East European satellite states, requiring them to learn Russian and repress all pre-socialist sources of cultural and religious and national identity (as if Polish shipyard workers were proletarians first and foremost). Such imperialistic practices are, of course, the very opposite of that which a Schmittian model of direct democracy from below entails. Hence, military occupation by a foreign power exercising direct rule is an extreme example of undemocratic practice, even where it imposes by force Western liberal institutions, including parliamentarism, upon a largely tribal or clan-based society, such as contemporary Afghanistan.

Equally, in a context of near civil war, a strong and properly elected leader may take authoritarian – but highly popular measures – to restore order and public security for all sides, albeit at the expense of familiar liberal constitutional principles and international human rights expectations. In Schmitt’s model, this leader’s actions more closely realise democratic ideals than the policies of an earlier regime which insists that no such decisive actions were legally or constitutionally possible, and that appeasement with internal or external enemies, even those with tyrannical aspirations, was therefore the only possible alternative. For the latter, adherence to ‘liberal democracy’ involves the political myth that a timid, pacifist and weak government that is afraid of going beyond provisional half-measures, and which subjects itself to – and hides behind – a mass of constitutional checks and balances, including review by a constitutional court and deadlocks created by negative parliamentary majorities etc., is somehow democratic Schmitt rejects this liberal constitutionalist claim by objecting that:

One cannot generally define a political form according to properties such as mildness and hardness, ruthlessness or humanity. It is the distinctly liberal, Rechtsstaat component, which linked itself with the democratic element of the constitution, that leads to the weakening and softening of the power of the state by a system of controls and restrictions. This tendency is not essential to democracy as a political form; it is perhaps even foreign to it.

(Schmitt 2008b: 265–6)

Such reluctance to disregard liberal constitutional principles and procedures can be based upon the mythic idea, misinterpreted as a constitutional norm, that, irrespective of what an overwhelming majority of citizens actually demand to be carried out in their name, no such contravention of these principles can ever be permissible within a democracy, at least not without debasing a state’s democratic credentials. For Schmitt, however, this constitutes an unresponsive and essentially elitist orientation, based on the know-it-all presumption that government leaders are, by that fact alone, ‘qualitatively better’ and ‘superior’ to the orientation of the governed. Such an elitist orientation sets up its own self-generated standards, endorsed perhaps by subservient ‘experts’, above those clear expressions of popular will. It misrepresents this activity as the fulfilment of liberal democracy, rather than merely that of liberalism at the expense of democracy.

Schmitt tries to show that the reverse is the case. Consider a situation where those taking authoritarian actions are ‘still rooted in the substantive similarity of the people’ and ‘receive the consent of and have the confidence of the people, to which they belong’. In this context, even ‘strict and more intense’ extraordinary and ‘decisive’ measures against, for example, an insurrectionary terrorist group, or fascistic, Maoist, anarchist or Marxist political movements seeking to subvert democratic governance from within, can exhibit democratic legitimacy. This is true both at the time of the crisis, especially if such measures are later publicly re-affirmed by a majority during a referendum, and later. By contrast, more cautious and less decisive measures taken by a semi-detached liberal ruling elite fearful of regional or international criticisms of its human rights record may, according to Schmitt’s theory, lack such democratic legitimacy. A truly democratic government may have no choice but to combine continuing popular legitimacy with strength of purpose, and thus a willingness, if need be, to take decisive, even dictatorial, action against internal or external threats to the well-being of the entire people.

It follows that the decisive matter concerning democratic legitimacy is not the nature of government actions themselves. It is, rather, the credentials of those exercising sovereign power. It is one thing for a military dictatorship to ban a revolutionary communist or fascist party, quite another when this prohibition is carried out by an embattled but democratically-elected leader who is acting in pursuit of an election pledge to safeguard constitutional governance from its most resolute and dangerous foes (Schmitt 2008b: 265).

These various points concerning the reality of democracy-in-action provide a benchmark standard against which a Schmittian analysis seeks to distinguish mythic claims based upon fictions, or half-truths, from genuine instances of democracy that, to a greater or lesser extent, realise this idea in practice. Without such a standard and the various differentiations based upon it, studies of myths associated with democracy, including conceptions of ‘counterfeit’ democracy, would lack any conceptual grounding. For instance, the idea of contemporary liberals that parliamentarians ‘represent the people,’ or ‘their constituents’, involves, at best, an ‘indirect’ form of democracy. This is prone to degenerate into a legendary myth, or ‘fiction’, where its claims to embody democracy as such, that is, the people’s self-rule, fail to inspire public trust and confidence (Schmitt 2008b: 264–5).

By contrast, Schmitt argues that in a fully developed or ‘true’ democracy, the ‘difference present in other state forms’ (monarchy, theocracy, dictatorship etc) between ‘the governing and the governed’ can operate neither as an institutional practice, nor as a constitutional principle. Indeed, it is this feature that distinguishes democracy from other, competing state forms. The liberal belief that the ‘will of parliament’, somehow embodies the ‘will of the people’, and thereby confers an absolute obligation to obey the resulting law, operates as an undemocratic myth. Schmitt points out that parliaments typically comprise a compliant majority of professional ‘representatives’ largely selected and partially controlled by unelected party officials and members. The equation of parliamentarism with democracy rests upon one of liberalism’s major political myths, which deserves to be openly acknowledged as such (Schmitt 1988: 3; Schmitt 2008b: 264).

To be clear, a Schmittian critical analysis of liberal democracy’s myths-turned-legends is directed neither to their status as mythic, nor – of course – to the claimed democratic elements themselves. Democratic values and ideals remain the benchmark; it is simply that the institutions of liberal democracy realise their liberalism at the expense of this benchmark. It is this element that makes their claims that democracy attains ultimate fulfilment in the practices of liberal parliamentarism the equivalent of a political myth. A Schmittian critique focuses upon the diminishing credibility of such claims given 20th- and 21st-century constitutional developments.

For Schmitt, mass acceptance of liberal constitutionalism has typically been assisted by the interplay of rational and mythic factors, both of which require sympathetic reconstruction and acknowledgement. These include the secularisation of earlier theological dimensions relating to the divine sources and underpinnings of sovereign power. Such power has been re-assigned to a particular conception of ‘the people’ (albeit only then to be immediately transferred back to ‘their’ parliamentary representatives). Another factor already noted has been the incompatible – but self-serving – strategic myth that parliamentary forms of liberal democracy, together with other liberal institutions and doctrines, fully exemplify democracy as such (Schmitt 2008a: 256–7). The latter’s mythic character is easily exposed by a reflection of the classic liberal constitutionalists’ principle of the separation of powers. This principle is designed to impede the potential direct expression of popular sovereignty oriented for example towards a redistributive agenda through the effective merger of executive and legislative functions (Schmitt 1988: 36, 39–41).

It would be misleading to conclude that recognition of the partially mythic components of the mass appeal of liberal democracy means that a Schmittian perspective must treat democracy itself as nothing but a myth to be purged. We have already noted how Schmitt rejects a myth/non-myth dichotomy that assigns irrationalism to the former side of this opposition and scientific rationality only to the latter. However, and as Kalyvas has shown in admirable detail, Schmitt’s short but disastrous personal involvement with Nazism has forestalled most contemporary scholars from taking seriously the positive theory of democracy both contained in – but also presupposed by – many of his key Weimar works. Yet, these remain clearly present nonetheless (Kalyvas 2008: 84–7; ch 4). For Schmitt, the necessity for modern governments to appeal to democratic principles as the grounds for their actions remains an escapable reality and source of state legitimacy, even for comparatively authoritarian regimes (Schmitt 1988: 31–2). In particular, Schmitt’s Constitutional Theory takes it as self-evident that if a constitutional work contains a polemically anti-democratic orientation, then exposure and recognition of this fact is, in itself, sufficient to diminish its quality, contemporary relevance and scholarly standing (Schmitt 2008a: 256).

Through a close reading of his analysis of practices of political myth-making and its various functions, we can clarify whether, and if so to what extent, Schmitt includes such deliberate acts not only as a distinct theme for juristic analysis but also as one part of his own polemical armoury for conducting such analysis. An essential part of democratic renewal requires a sympathetic reconstruction and open acknowledgement of a key mythic underpinning of democracy itself: the ‘demos’. One primarily mythic element of our belief in democracy relates to the idea of the ‘demos’, ‘the people’ as inhabitants of a distinct realm, or ‘homeland’, possessing its own state boundaries distinguishing domestic from foreign affairs, and placing substantial limits on the reach of both court and legislative decisions.

Schmitt expressly addresses the mythic elements of our nation as a collective homeland. He suggests that this conception of ‘demos’ – and hence ‘demo-cracy’ – cannot avoid the constitutive role played by a geopolitical spatial dimension, a distinct people inhabiting and controlling its spatially-delimited territory acquired by a nation’s earlier collective act of land appropriation. Of course, the latter’s annexation of territory may expand and redefine the cultural, ethnic and religious characteristics of ‘the nation’ itself. This unavoidably particularistic dimension of nationhood, or demos, involving the distinctive qualities of a defined ‘people’, is often shaped by the impact of past military victories, annexations and defeats. It forces itself even upon revolutionary constitutions committed to more universalistic sentiments. In Constitutional Theory, for example, he argues:

Read in context, this is far from being an ominous manifesto for the political exclusion of any or all minority groups. On the contrary, it suggests that whilst democracy can be accompanied by all manner of moralistic and cosmopolitan mythic beliefs in a ‘common humanity’, its modern reality is, nevertheless, centred on a distinct and politically differentiated people. The latter inhabit a definite slice of physical territory they define as their distinctive homeland, and who are administered and defended by a particular nation state to whom they look for guarantees of security.

Schmitt insists that ‘all democratic thinking centres on ideas of immanence’ (Schmitt 2008b: 266). This idea is directed against two essentially anti-democratic tendencies of the modern world. These displace all references to ‘the people’ as a source of sovereign power. Instead, they introduce a qualitative distinction not only between supposedly ‘higher’ and ‘lower’ types of law, but also, as its corollary, between superior and inferior citizens. The first variation is a theocratic, even religious fundamentalist state form, where the validity of legislation (and constitutionally authorised government policies) depends upon its compliance with a theologically acceptable understanding of the ‘will of God’ taken as the supreme source of higher law. The meaning of the latter typically depends upon how it is interpreted and applied by a ‘higher’ special class of persons allegedly blessed with unique insight into the significance and implications of holy works. Their interpretative authority (and hence social power) will typically be grounded in factors other than widespread public trust and confidence: ‘The appeal to the will of God contains a moment of undemocratic transcendence. … a state power is exercised even against the will of the people; in this meaning, it contradicts democracy’ (Schmitt 2008b: 266–7).

This criticism does not necessarily mean that, as a general rule, religion can only operate as an essentially undemocratic force within modern societies. It suggests that a religious understanding of the ‘will of God’ becomes relevant to constitutional questions only when the particular God in question is clearly one the mass of a specific people themselves accept. This faith-based mythic belief may function as a major source of national identity, as was, for example, traditionally the case with respect to Catholicism within the Irish Republic, at least until recent decades. For his part, Schmitt’s relativist, or social constructionist, position insists that: ‘God cannot appear in the political realm other than as the god of a particular people’ (Schmitt 2008b: 267). There is certainly something illiberal about any constitution (or, perhaps, even domestic criminal law) affording special status to a specific religion to the comparative disadvantage of either its rivals, or to secular humanists. Yet, under specific conditions, this privileged status need not necessarily operate in an undemocratic manner. Here, the proviso must be that such entrenchment does not clearly offend the sensibilities of a majority of citizens insofar as these are variously expressed, including through referenda, high levels of voluntary church attendance, and so forth.

Within a specific nation state, a widespread belief that traditional Catholic or Islamic doctrine provides a definitive and supreme source and guide to legitimate forms of law-making and legal interpretation, is certainly culturally underpinned by a myth with political implications. However, for Schmitt, a religious belief of this collectively shared kind can, nevertheless, function as a truly democratic aspect of law-making. This may continue to be the case unless and until such beliefs become effectively displaced democratically by, for example, a newly-fashionable public adherence to our secular religion of ‘human rights’, or some other particular ethos. In each of these scenarios, it still makes good sense for constitutional doctrine to affirm that ‘the people’s voice is the voice of God’, even where the government’s own express orientation is itself entirely agnostic, technocratic, or even evangelically atheistic (Schmitt 2008b: 267). In short, the fact that religious myths can underpin the culture of modern democratic constitutional orders does not necessarily subvert their democratic credentials. Indeed, it can even enhance them as an articulation of the principle of immanence.

Schmitt argues that there is a second unwelcome form of transcendence: one that fails to meet his democratic benchmark. This is the superimposition by unelected transnational or regional bodies of restrictions upon the scope or validity of law-making, where this takes place from a position that is outside an affected people’s processes of democratic will-formation. Examples can include the extension of the jurisdiction of international criminal courts claiming a ‘higher authority’ in comparison with their mere domestic equivalents. Another is the UN’s granting of overriding powers to either its own officials or those of non-government organisations to carry out inspections of various kinds within the borders of a nation state, even where the latter has already expressly denied permission for this.

Schmitt maintains that not even God can ‘play God’ in the sense of comparative ‘outsiders’ setting themselves up as a supreme world law-maker and policing agency, at least where this clearly amounts to a violation of a nation state’s democratic processes of will formation and decision-making processes that articulates the political will of that specific people. The question is not whether such inspections are in themselves objectionable or desirable – or even over the nationality of the inspectors themselves. The key question is whether the decision to hold them at all is or is not explicable as a democratic instance of self-governance:

Despite his own sometimes unorthodox Roman Catholicism, in this context Schmitt places respect for democracy above that of the Christian version of God. Schmitt’s strong position on this issue stems from his insistence that a nationalistic belief in, and subjective adherence to, ‘this nation as our nation’, the inherently particularistic and distinctive subject of ‘demos’, underpins the very possibility of a viable democracy. All legitimate state power derives ultimately from a mandate given by ‘the people’. Hence, government and legislatures must find credible ways to identify when this collective has spoken, what it is that they have stated, and, finally, its implications for government action. In practice, however, belief in a singular voice of ‘the people’ cannot fully avoid confronting a mythic dimension that underpins its very possibility. For example, Schmitt notes that the results of democratic elections in referenda, local government and parliamentary elections remain binding not only upon those who were outvoted but also upon all others who did or could not vote. This remains the case even where there is only a statistical minority of ‘the people’ who have actively endorsed the decision or policy in question (Schmitt 2004b: 36).

In what sense does Schmitt consider the ‘demos’ of ‘demo’-cracy to rest at least in part upon mythic underpinnings? To function institutionally as a democracy, a state must routinely apply a concrete definition distinguishing, say, French citizens entitled to vote, from all others, including temporary residents, overseas diplomats and visitors. Applying such a distinction, in turn, requires the state to have already formulated a singular and particularistic conception of nationality requirements. This may – but need not be – pluralistic in terms of religion, skin colour, regional attachment, language, dialect, ethnicity etc. For example, a newly-liberated South Africa could have decided to exclude former white beneficiaries of apartheid from citizenship rights, or to have adopted a more inclusive, pluralistic or ‘rainbow’ approach to questions of nationality. Either way, some at least formal measure of ‘homogeneity’ (in Schmitt’s sense of this unfortunately deceptive term) would have had to be invoked to distinguish South African citizens from others located in or outside the state’s borders on election day.

The key point is that to first emerge and then function as a viable democracy, any nation needs to possess and consistently apply some sense of who alone are its nationals, and what are the specific consequences of citizenship for both citizens and the state. The alternative would be to allow anyone in the planet to vote in a South African election, which of course would make a mockery out of the democratic principle of a distinct people’s right of self-governance. Hence, resort to simplifying myths of ‘the nation, our nation’ as a singular and distinct political entity, or living organism differentiated – to some extent – from all others, will frequently – perhaps necessarily – accompany processes of democratisation.

Schmitt suggests that there are both distinctly emotional, as well as geopolitical, aspects of the identity politics of making and enforcing the national/non-national distinction and its various constitutional implications. For instance, his Nomos of the Earth argues that a ‘poetics of space’ has historically opened up and continuously recreated the map of the world as a spatial order. Here, specific myths and symbols have played a key role in imagining, delimiting and situating a people’s distinct territorial boundaries equipped with specific legal jurisdictions. These are typically centred around the nation state, clusters of social relationships and political identities. Partly through reliance upon mythic categories of national characteristics that distinguish, say, a ‘true Scot’ from members of every other nation, the ‘nation’ part of the nation state becomes an imagined or fictive community of fellow citizens.

This remains the case even though it is only possible for any particular citizen to have personal contact and a sense of affiliation (‘belonging-together’) with a small faction of his or her ‘fellow citizens’. Hence, his or her sense of what it subjectively means to be Scottish cannot be founded upon a comprehensive and fully representative experience of Scottishness acquired at first-hand. Instead, this must resort at least implicitly to transmitted clichés, idealisations and stereotypical conceptions of national identity, which will – considered sociologically at least – be partly fictive or idealised. Indeed, if considered in terms of overall way of life, a Scottish highland farmer may have more in common with his or her English Cumbrian counterpart than with a fellow countryman or women living in, say, Glasgow.

The idea of the nation as a ‘community’ akin to a village writ large where everyone knows everyone else in a first-hand and immediate manner is, in practice, more virtual and hypothetical than actual; it certainly requires creative supplementation by the imagination and rhetoric. Soldiers in battle may be willing to kill and risk being killed ‘for Queen and Country’ in one sense but it is just as likely that the content of their actual ‘sense of community’ is far more localised and concrete, centred on their regiment, for example, or even a particular subset within it.

In short, political myths invoking ‘the nation as our nation’, or ‘one nation’, thereby open up the possibility of belonging to a particular nation as a ‘fellow national’ and, as its necessary correlate, ‘an alien’ or non-citizen in every other state. This partly mythic element of national identity – with its various politics of inclusion and exclusion – operates as an essential precondition for any viable democracy, even a flawed liberal version that promotes ‘the rights of individuals as such’ devoid of theoretical questions of nationality.

Vital to the post-Westphalian transnational international law, which collapsed between 1890 and 1917, was the strategic political myth that sovereign states alone are able to authoritatively define and apply the distinction between ‘friends and enemies’ – the hallmark of ‘the political’, and thereby both start and end interstate conflicts in a legitimate manner. A key political myth here is the nationalist belief that a specific territorial ordering of space possesses a sacred character deserving of respect, and thereby possesses a heightened emotional significance for those who belong to it as their ‘homeland’, ‘land of our fathers’, ‘Mother Russia’, and so on. In turn, an emotionally charged sense of affiliation remains central to questions of personal, as well as collective, identity. Indeed, this can prove sufficient to inspire a willingness amongst citizens to fight and die to protect whatever government leaders define credibly as constituting its integrity (Schmitt 2003: 70; Dean 2006).

A Schmittian analysis cannot itself be committed to the promotion of mythic beliefs underpinning any particular nationalistic agenda – as if these were self-evidently true; whilst denigrating as delusional those of every other nation. Instead, it must seek to theorise the historical force and contemporary role of such beliefs in first enabling a nationalistic understanding of nationhood/‘demos’, which – whether one approves of its contents or not – clearly underpins domestic forms of democracy. Indeed, Schmitt’s discussion of ‘democracy’ under the heading of ‘fundamental concepts’ states:

Democracy is a state form that corresponds to the principle of the identity (in particular, the self-identity of the concretely present people as a political unity). The people are the bearer of the constitution-making power, and, as such, grant themselves their constitution.

(Schmitt 2008b: 255)

A Schmittian approach to political myths of ‘the nation’ emphasises their particularistic quality of differentiating specific nations from each other within historically specific contexts, and thereby establishing, sustaining and changing cultural and material boundaries and borderlines. As Kennedy’s foreword to a translation of Schmitt’s Constitutional Theory notes: ‘Read with The Concept of the Political, the present text captures the seriousness of constituting this people in this time, not as a set of technical issues in law and electoral strategy, but as a boundary that secures the existential survival of a particular way of life’ (Schmitt 2008a: xvi).