The Magazine

Carl Schmitt (part IV)

When Hitler first came to power, Carl Schmitt hoped that President von Hindenburg would be able to control him, and dismiss him from the chancellor’s position if necessary. But within days of becoming chancellor, Hitler invoked Article 48 and began imposing restrictions on the freedoms of speech, press, and assembly. Within a month, all civil liberties had essentially been suspended. Within two months, a Reichstag dominated by the Nazis and their allies (with the communists having been purged and subject to repression under Hitler’s emergency measures) passed the Enabling Act, which, more or less, gave Hitler the legal right to rule by decree. The Enabling Act granted Hitler actual legislative powers, beyond the emergency powers previously provided for by Article 48. Schmitt regarded the Enabling Act as amounting to the overthrow of the constitution itself and the creation of a new constitution and a new political and legal order.

The subsequent turn of events in Schmitt’s life remains the principal, though certainly not exclusive, source of controversy regarding Schmitt’s ideas and career as a public figure and intellectual. Schmitt remained true to his Hobbesian view of political obligation that it is the responsibility of the individual to defer to whatever political and legal authority that becomes officially constituted. On May 1, 1933, Carl Schmitt officially joined the Nazi Party.

Despite his past as an anti-Nazi, Schmitt’s prestigious reputation as a jurist and legal scholar heightened his value to the party. Herman Goering appointed Schmitt to the position of Prussian state councilor in July, 1933. He then became leader of the Nazi league of jurists and was appointed to the chair of public law at the University of Berlin. While occasionally including a racist or anti-Semitic comment in his writings and lectures during this time, Schmitt also hoped to strike a balance between Nazi ideology and his own more traditionally conservative outlook.

Schmitt’s hopes for such a balance were dashed by the Night of the Long Knives purge on June 30, 1934. Not only were hundreds of Hitler’s potential rivals within the party killed, but so were a number of prominent conservatives, including Schmitt’s former associate, General Kurt von Schleicher. Even Papen, who had initially been vice-chancellor under the Hitler regime, was placed under house arrest.

In response to the purge, Schmitt published the most controversial article of his career, “The Fuhrer Protects the Law.” On the surface, the article was merely a sycophantic and opportunistic effort at defending Hitler’s brutality and lawlessness. While Schmitt likely regarded the killing of rival Nazis as little more than a dishonorable falling out among thugs, he also included within the article subtle references to unjust murders that had been committed during the course of the purge, meaning the killing of his friend General Schleicher and others outside Nazi circles, and urged justice for the victims. The wording of the article pretended to absolve Hitler of responsibility while dropping very discreet and coded hints to the contrary.

Though Schmitt enjoyed the protection afforded to him by his associations with Goering and Hans Frank, he never exerted any influence over the regime itself. The purge of the SA leadership had the effect of empowering within the Nazi movement one of its most extreme elements, the SS. The SS soon concerned itself with the presence of “opportunists” and the ideologically impure elements, which had joined the party only after the party had seized power for the sake of being on the winning side. These elements included many middle-class persons and ordinary conservatives whose actual commitment to the party’s ideology and value system were questionable.

Schmitt was a prime example of these. His efforts to revise his theories to make them somewhat compatible with Nazi ideology were subject to attacks from jurists committed to the Nazi worldview. Further, former friends, professional associates, and students of Schmitt who had emigrated from the Third Reich were incensed by his collaboration with the regime and began publishing articles attacking him from abroad, pointing out his anti-Nazi past during his association with Schleicher, his prior associations with Jews, his Catholic background, and the fact that he had once referred to Nazism as “organized mass insanity.”

Schmitt attempted to defend himself against these attacks by becoming ever more virulent in his anti-Semitic rhetoric. When the Nuremberg Laws were enacted in September of 1935, he defended these laws publicly. His biographer Bendersky described the political, ethical, and professional predicaments Schmitt found himself in during this time:

No doubt at the time he tried to convince himself that he was obligated to obey and that as a jurist he was also compelled to work within the confines of these laws. He could easily rationalize his behavior with the same Hobbesian precepts he had used to explain his previous compromises. For he always adhered to the principle Autoritas, non veritas facit legem (Authority, not virtue makes the law), and he never tired of repeating that phrase. Authority was in the hands of the Nazis, their racial ideology became law, and he was bound by these laws.

Schmitt further attempted to counter the attacks hurled at him by both party ideologues and foreign critics by organizing a “Conference on Judaism in Jurisprudence” that was held in Berlin during October of 1936. At the conference, he gave a lecture titled “German Jurisprudence in the Struggle against the Jewish Intellect.” Two months later, Schmitt wrote a letter to Heinrich Himmler discussing his efforts to eradicate Jewish influence from German law.

Yet, the attacks on Schmitt by his party rivals and the guardians of Nazi ideology within the SS continued. Schmitt’s public relations campaign had been unsuccessful against the charges of opportunism, and Goering had become embarrassed by his appointee. Goering ordered that public attacks on Schmitt cease, and worked out an arrangement with Heinrich Himmler whereby Schmitt would no longer be involved with the activities of the Nazi party itself, but would simply retain his position as a law professor at the University of Berlin. Essentially, Schmitt had been politically and ideologically purged, but was fortunate enough to retain not only his physical safety but his professional position.

For the remaining years of the Third Reich, Schmitt made every effort to remain silent concerning matters of political controversy and limited his formal scholarly work and professorial lectures to discussions of routine aspects of international law or vague and generalized theoretical abstractions concerning German foreign policy, for which he always expressed outward support.

Even though he was no longer active in Nazi party affairs, held no position of significance in the Nazi state, and exercised no genuine ideological influence over the Nazi leadership, Schmitt’s reputation as a leading theoretician of Nazism continued to persist in foreign intellectual circles. In 1941, one Swiss journal even made the extravagant claim that Schmitt had been to the Nazi revolution in Germany what Rousseau had been to the French Revolution. Schmitt once again became fearful for his safety under the regime when his close friend Johannes Popitz was implicated and later executed for his role in the July 20, 1944, assassination plot against Hitler (though, in fact, Schmitt himself was never in any actual danger.)

When Berlin fell to the Russians in April 1945, Schmitt was detained and interrogated for several hours and then released. In November, Schmitt was arrested again, this time by American soldiers. He was considered a potential defendant in the war crimes trials to be held in Nuremberg and was transferred there in March 1947. In response to questions from interrogators and in written statements, Schmitt gave a detailed explanation and defense of his activities during the Third Reich that has been shown to be honest and accurate. He pointed out that he had no involvement with the Nazi party after 1936, and had only very limited contact with the party elite previously. Schmitt provided a very detailed analysis and description of the differences between his own theories and those of the Nazis. He argued that while his own ideas may have at times been plagiarized or misused by Nazi ideologists, this was no more his responsibility than Rousseau had been responsible for the Reign of Terror. The leading investigator in Schmitt’s case, the German lawyer Robert Kempner, eventually concluded that while Schmitt may have had a certain moral culpability for his activities under the Nazi regime, none of his actions could properly be considered crimes warranting prosecution at Nuremberg.

Schmitt’s reputation as a Nazi, and even as a war criminal, made it impossible for him to return to academic life, and so he simply retired on his university pension. He continued to write on political and legal topics for another three decades after his release from confinement at Nuremberg, and remained one of Germany’s most controversial intellectual figures. For some time, his pre-Nazi works were either ignored or severely misinterpreted. A number of prominent left-wing intellectuals, including those who had been directly influenced by Schmitt, engaged in efforts at vilification.

An objective scholarly interest in Schmitt began to emerge in the late 1960s and 1970s, even though Schmitt’s reputation as a Nazi apologist was hard to shake. Interestingly, the framers of the present constitution of the German Federal Republic actually incorporated some of Schmitt’s ideas from the Weimar period into the document. For instance, constitutional amendments that alter the basic democratic nature of the government or which undermine basic rights and liberties as outlined in the constitution are forbidden. Likewise, the German Supreme Court may outlaw parties it declares to be anti-constitutional, and both communist and neo-Nazi parties have at times been banned.

Schmitt himself returned to these themes in his last article published in 1978. In the article, Schmitt once again argued against allowing anti-constitutional parties the “equal chance” to achieve power through legal and constitutional means, and expressed concern over the rise of the formally democratic Eurocommunist parties in Europe, such as those in Italy and Spain, which hoped to gain control of the state through ordinary political channels.


Schmitt’s Contemporary Relevance

The legacy of Schmitt’s thought remains exceedingly relevant to 21st-century Western political and legal theory. His works from the Weimar period offer the deepest insights into the inherent weaknesses and limitations of modern liberal democracy yet to be discussed by any thinker. This is particularly significant given that belief in liberal democracy as the only “true” form of political organization has become a de facto religion among Western political, cultural, and intellectual elites. Schmitt’s writings demonstrate the essentially contradictory nature of the foundations of liberal democratic ideology. The core foundation of “democracy” is the view that the state can somehow be a reflection of an abstract “peoples’ will,” which, somehow, rises out of a mass society of heterogeneous individuals, cultural subgroups, and political interest groups with irreconcilable differences.

This is clearly an absurd myth, perhaps one ultimately holding no more substance than ancient beliefs about emperors having descended from sun-gods. Further, the antagonistic relationship between liberalism and democracy recognized by Schmitt provides a theoretical understanding of the obvious practical truth that as democracy has expanded in the West, liberalism has actually declined. The classical liberal rights of property, exchange, and association, for instance, have been severely comprised in the name of creating “democratic rights” for a long list of social groups believed to have been excluded or oppressed by the wider society. The liberal rights of speech and religion have likewise been curbed for the ostensible purpose of eradicating real or alleged “bigotry” or “bias” towards former out-groups favored by proponents of democratic ideology.

The contradictions between liberalism and democracy aside, Schmitt’s work likewise demonstrates the ultimately self-defeating nature of liberalism taken to its logical conclusion. A corollary of liberalism is universalism, yet liberal universalism likewise contradicts itself. Liberalism, as Westerners have come to understand it, is a particular value system rooted in historic traditions and which evolved within a particular civilization and was affected by historical contingencies (the Protestant Reformation, the Enlightenment, and Modernism being only the most obvious.)

Schmitt’s definition of the essence of the political as the friend/enemy dichotomy simultaneously exposes the limitations of liberalism’s ability to sustain itself. Robert Frost’s quip about a liberal being someone who is unable to take his own side in a fight would seem to apply here. The principal weakness of liberalism is its inability to recognize its own enemies. Even in the final months of the Weimar republic, liberals, socialists, and even Catholic centrists held so steadfastly to the formalities of liberalism that they were unable to perceive the imminent destruction of liberalism that lurked a short distance ahead.

This insight of Schmitt would seem to go a long way towards explaining the behavior of many present day zealots of Liberal Democratic Fundamentalism. It is currently the norm for liberals to react with a grossly exaggerated, almost phobic, sense of urgency concerning the supposed presence of elements espousing “racism,” “fascism,” “homophobia,” and other illiberal or ostensibly illiberal ideas in their own societies. In virtually all Western countries, elements espousing the various taboo “isms” and “phobias” with any degree of seriousness are marginal in nature, often merely eccentric individuals, tiny cult-like groups, or politically irrelevant subcultures.

And yet, liberals who become hysterical over “fascism,” typically express absolutely no concern about the importation of unlimited numbers of persons from profoundly illiberal cultures into their own nations. Indeed, criticizing such things has itself become a serious taboo among liberals, who somehow believe that such values as secularism, feminism, and homosexual rights can never be threatened by the mass immigration of those from cultures with no liberal tradition, where theocratic rule is the norm, or where the political and social status of women has not changed in centuries or even millennia, where there is no tradition of free speech, where capital punishment is regularly imposed for petty offenses, and where homosexuality is often considered to be a capital crime.

A related irony is that liberals have embraced “Green” consciousness in a way comparable to the enthusiasm and adulation shown to pop music stars by teenagers, while remaining oblivious to the demographic and ecological consequences of unlimited population growth fueled by uncontrolled immigration.

Schmitt’s steadfast opposition to legal formalism as a method of constitutional interpretation and as an approach to legal theory in general is also interesting when measured against the standard complaints about “judicial activism” found among “mainstream” American conservatives. Schmitt’s view that laws, even constitutional law itself, should be interpreted according to the wider essence or deeper substance of the laws and constitutions in question and according to the concrete realities of specific political situations would no doubt make a lot of American conservatives uncomfortable. Of course, an important distinction has to be made between Schmitt’s seemingly open-ended approach to legal theory and the standard ideas about a “living constitution” found among American liberal jurists. Schmitt was concerned with the very real and urgent question of the need to preserve civil order and political stability in the face of severe social and economic crisis, civil unrest, and threats of revolution, whether through direct violence or cynical manipulation of ordinary political and legal processes. The various legal theories involving a supposed “living constitution” or “evolving standards” advanced by American liberals represents the far more dubious project of simply replacing the traditional Montesquieu-influenced American constitution with an ostensibly more “progressive” democratic socialist one.

That said, one has to wonder if it would not be appropriate for American anti-liberals to initiate an ideological move away from advocating strict adherence to the principle of legal or judicial neutrality towards a perspective that might be called “defensive judicial activism,” e.g. the advocacy of the use of the courts at every level to resist the encroachments of the present therapeutic-managerial-multiculturalist-welfare state in the same manner that liberals have used the courts to impose their own extra-legislative agenda. This would be an approach that is more easily discussed than implemented, of course, but perhaps it is still worthy of discussion nevertheless.

The political theory of Carl Schmitt likewise aids the development of a more thorough understanding of the nature of the state itself. Contrary to the prevailing view that political rule can be rooted objectively in sets of formal legal rules and institutional procedures, or that the state can be a mere reflection of the idealized abstraction of “the people,” Schmitt recognized that ultimately political rule is based on the question of “Who decides?” Ideological pretenses to the contrary, there will be a “sovereign” (whether an individual or a group) who possesses final authority as to what the rules will be and how they will be interpreted or applied.

Schmitt’s friend/enemy thesis likewise contains the recognition that the prospect of lethal violence defines the essence of politics. Political rule is about force, and about possessing the ability to exercise the necessary amount of physical violence to maintain a system of rule. The truth of these observations and of Schmitt’s broader critique of liberalism and democracy do not by themselves eliminate the problematical nature of Schmitt’s own Hobbesian outlook. Clearly, Schmitt’s own life and career illustrate the limitations of such a view. Indeed, after his purge by the Nazis, Schmitt reflected on Hobbes more extensively and modified his views on political obligation somewhat. He concluded that political obligation must be reciprocal in nature. Hobbes taught that the individual was obligated to obey political authority for the sake of his own protection. Schmitt argued in light of the Nazi experience that the individual’s obligation of obedience is negated when the state withdraws its protection. Schmitt’s concern with the primacy of order and stability could well be summarized by the Jeffersonian principle that “prudence, indeed, will dictate that governments long established should not be changed for light and transient causes.”

Yet, there is the wider question of the matter whereby the malignant nature of a particular state is such that the state not only fails to provide protection for the individual but threatens the wider culture and civilization itself, a situation for which Dr. Samuel Francis coined the term “anarcho-tyranny.” Clearly, in such a scenario, it will seem that the obligation of political obedience, individually or collectively, becomes abrogated.