CALDWELL - Controversies Over Carl Schmitt. A Review of Recent Literature

Controversies over Carl Schmitt: A Review of Recent Literature
Author(s): PeterC.Caldwell
Reviewed work(s):
Source: The Journal of Modern History, Vol. 77, No. 2 (June 2005), pp. 357-387
Published by: The University of Chicago Press
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Review Article
Controversies over Carl Schmitt: A Review of Recent
Literature*
Peter C. Caldwell
Rice University
Few gures in the history of German political thought occasion such divergent
evaluations as Carl Schmitt. An important theorist of democracy and consti-
tutionalism in the Weimar Republic, Schmitt went on to write a number of
inuential works for the Nazis and spent his nal decades at his home in
Plettenberg in the Sauerland. He died in 1985. His place in German history
remains disputed. The authors of the books under review here see him vari-
ously as a traditional nineteenth-century liberal, as a fascist in the Italian vein,
as a conservative revolutionary, as an insightful critic of Marx, as an antisemite,
and as a brilliant theorist of democracy.
* Books under review in this essay include (in alphabetic order, by author or editor): Gopal
Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2000), pp.
vii312, $22.00; Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan amEnde der Weimarer
Republik (Berlin: Duncker und Humblot, 1999), pp. 94, 36.00; Dirk Blasius, Carl Schmitt:
Preussischer Staatsrat in Hitlers Reich (Gottingen: Vandenhoeck und Ruprecht, 2001), pp. 250,
29.90; Felix Blindow, Carl Schmitts Reichsordnung: Strategie fur einen europaischen Grossraum
(Berlin: Akademie, 1999), pp. 209, 49.80; Renato Cristi, Carl Schmitt and Authoritarian Lib-
eralism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998), pp. viii252,
$55.00; David Dyzenhaus, ed., Law as Politics: Carl Schmitts Critique of Liberalism (Durham,
NC: Duke University Press, 1998), pp. ix318, $21.95; Richard Faber, Lateinischer Faschismus:
U
ber Carl Schmitt den Romer und Katholiken (Berlin: Philo, 2001), pp. 220, 17.50; Raphael
Gross, Carl Schmitt und die Juden: Eine deutsche Rechtslehre (Frankfurt am Main: Suhrkamp,
2000), pp. 442, 27.80; Dirk van Laak, Gesprache in der Sicherheit des Schweigens: Carl Schmitt
in der politischen Geistesgeschichte der fruhen Bundesrepublik, 2nd ed. (Berlin: Akademie, 2002),
pp. 331, 39.80; Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction
between Political Theology and Political Philosophy, trans. Marcus Brainard (Chicago: University
of Chicago Press, 1998), pp. xxiv179, $26.00; Christoph Mollers, Staat als Argument (Munich:
Beck, 2000), pp. xxiv488, 64.00; Chantal Mouffe, ed., The Challenge of Carl Schmitt (London:
Verso, 1999), pp. viii212, $20.00; Wolfgang Pircher, ed., Gegen den Ausnahmezustand: Zur
Kritik an Carl Schmitt (Vienna: Springer, 1999), pp. 337, 38.00; Helmut Quaritsch, Carl Schmitt:
Antworten in Nurnberg (Berlin: Duncker und Humblot, 2000), pp. 153, 36.00; Gabriel Seiberth,
Anwalt des Reiches: Carl Schmitt und der Prozess Preussen contra Reich vor dem Staatsge-
richtshof (Berlin: Duncker und Humblot, 2001), pp. 318, 34.00; Jeffrey Seitzer, Comparative
History and Legal Theory: Carl Schmitt in the First German Democracy (Westport, CT: Green-
wood, 2001), pp. xx165, $60.95; Rudiger Voigt, ed., Mythos Staat: Carl Schmitts Staatsver-
standnis (Baden-Baden: Nomos, 2001), pp. 267, 50.00.
358 Caldwell
In 1983, the rst scholarly biography of Schmitt in any language appeared:
Joseph Benderskys Carl Schmitt.
1
The book set off arguments in the United
States about who Schmitt really was. Against the standard view of most U.S.
scholars of the time, Bendersky held that Schmitt was a great thinker who tried
to save the republic, failed, and then got in over his head in the Nazi period.
The work was apologetic and at the same time indispensable for opening up
questions about a key gure of German history. After all, Schmitt was more
than a thinker: he advised prominent leaders, participated in political trials,
and presented public justications for political actions. His work both reected
the shifts in German political history of 1919, 1933, 1945, and 1949 and
reected on that history. Schmitts originality lay in the way he imported cate-
gories of predemocratic constitutionalism into his analysis of republican basic
law in the 1920s and drew on both imperial traditions and the experiences of
Weimar in formulating his positions under Nazism. His work had a broad
inuence on post-1945 political thinkers, including Hannah Arendt, Franz
Neumann, Georg Lukacs, Leo Strauss, and Alexander Koje`ve. After Schmitts
death, a wider discussion of his work and legacy began. New translations as
well as a series of important monographs through the 1990s have established
Schmitts place as a central gure of modern German intellectual history.
2
Schmitt is indeed central, and in a variety of different contextsintellectual,
political, and temporal. But political and cultural historians, lawyers, political
theorists, and literary theorists have provided contradictory interpretations of
all the major positions and concepts in Schmitts oeuvre, often using the same
evidence to make diametrically opposed arguments. This review essay looks
at the core areas of disagreement. It starts with the problem of how to assess
Schmitt in general: as a free-oating intellectual or as an integral political
philosopher. The second section deals with Schmitts role in the second half
of the Weimar Republic, as he sought to administer an antidote or, as some
hold, to give poison to a dying patient. The third section examines Schmitts
place in Nazism: was he a Nazi in word and deed, or were his conservative
ideas in the end incompatible with Hitlers racial state? Finally, the fourth
section considers whether Schmitt served in the Federal Republic as an enemy
of democracy or as a mentor to some of the most important political thinkers
of the postwar democratic order.
Schmitts style of thinking and writing poses a problem in each section.
Schmitt chose his words carefully. He was conscious of the changing styles
of political thought and made repeated reference to baroque forms of providing
advice to the prince. Like the classic Furstenspiegeln, his works contain veiled
allusions and secret messages about the mysteries of the state, the so-called
1
Joseph Bendersky, Carl Schmitt: Theorist for the Reich (Princeton, NJ, 1983).
2
See Stephen Holmes, The Anatomy of Antiliberalism (Cambridge, MA, 1993); William
Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law
(Cambridge, MA, 1994); John McCormick, Carl Schmitts Critique of Liberalism: Against Politics
as Technology (New York, 1997); David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans
Kelsen and Hermann Heller in Weimar (Oxford, 1997).
Controversies over Carl Schmitt 359
arcana of early modern state building. His interlocutors remain obscure; his
scholarly apparatus reveals some, not all, sources. And the texts themselves
often resound with bold sentences that assert radical acts of will (Sovereign
is he who decides on the exception
3
). To read Carl Schmitt is to experience
exhilaration, insight, and frustration over what is not stated openlyin short,
what Roland Barthes termed decades ago the pleasure of the text. Schmitts
style is seductive. It implies a grand (or perhaps grandiose) philosophy of
history and yet remains vague on the details. Its arcana may point to the un-
speakable realities of the state and politicsor they may point to prejudices
that are carefully not exposed to examination. The concluding section returns
to these aspects of Schmitt, to connect them to a wider discussion of the style
and habits of some European intellectuals after 1945.
I. FREE-FLOATING INTELLECTUAL OR INTEGRAL PHILOSOPHER?
At issue in the case of Carl Schmitt is not just what he did and wrote at critical
moments in German history but also the overall signicance of his work.
Despite the availability since the early 1990s of Schmitts correspondence and
personal papers and the posthumous publication in 1991 of his resentment-
laden postwar observations,
4
the rst two authors under review, Gopal Bala-
krishnan and Heinrich Meier, focus mainly on Schmitts published work. They
seek to grasp Schmitt in toto, while most of the other authors considered in
this review concentrate on one particular period or point in Schmitts work.
But the pictures painted by Balakrishnan and Meier are very different from
that of Benderskyand from each other. Balakrishnan offers up a free-oating
intellectual who made occasionally brilliant observations on the world of lib-
eral democracy as well as fatal errors. Meiers work, by contrast, argues for a
deep, coherent line of thought in Schmitt, a categorical rejection of reason in
politics that in the end challenges an entire tradition of rational political thought
stemming from Socrates. The difference between Balakrishnan and Meier is
more than a matter of interpretation. It reects two different ways of approach-
ing intellectual history: Balakrishnan describes and explains by reference to
political context, while Meier seeks an inner core, a lesson.
Balakrishnans The Enemy describes not so much a coherent body of theory
as the eclectic work of an intellectual who oated from the cafe society of
World War I Munich to the center of power in Berlin in late Weimar and Nazi
Germany. Short chapters reconstruct Schmitts theory within its political con-
text. Balakrishnans approach is, in essence, positivist: to record what was
written when, free from the alleged lters of political agendas (8). He hopes
thereby to nd insights about politics that remain useful today.
3
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George
Schwab (Cambridge, MA, 1985), 5.
4
Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 19471951, ed. Eberhard Freiherr von
Medem (Berlin, 1991).
360 Caldwell
This approach works best at the start of the book, in the period treating
Schmitts attitude toward the new republic before 1925. Balakrishnan does not
nd a unied theoretical critique of the republic. He discovers instead an anal-
ysis of dictatorship followed by several sketched-out alternatives to the new
orderinterventionist texts rather than systematic work (5). In 1922,
Schmitt, admirer of Charles Maurras and French classicism, presentedPolitical
Theology, with its eschatological decisionism: the decision on the exception,
on the emergency, was a theologically conceived moment of transgression
invoked in the idea of sovereignty (48). Around the same time, Schmitt com-
pleted his analysis of the Catholic Church as an early example of a concrete
institution and as the mediating center in a divided Europe (51) in Roman
Catholicismand Political Form. Along with these polar opposites (5152)
transgressive decisionism and integrative mediationSchmitt produced his
critical analysis of parliamentarianism in 1924, in which he contrasted the ideal
of rational argumentation to the reality of interest groups control over con-
temporary assemblies. In this third phase, according to Balakrishnan, Schmitts
solution to the problem of mass politics was neither a decisionist leader nor a
concrete institution but the plebiscitary integration of the masses into a ho-
mogenous national democracy (41). While scholars both at the time and in
recent years have viewed Schmitts third-phase arguments as crypto-fascist,
combined as they were with his admiration for Mussolini,
5
Balakrishnan states
that Schmitt would have considered the idea of abolishing . . . parliament out
of the realm of possibility (76). He provides, however, no documents to sup-
port his claim.
Balakrishnan details what he considers to be Schmitts sincere attempt to
balance liberalism and democracy in the late 1920s and his growing concern
about the role of interest groups in politics. He makes use of several new
biographies to ll in Schmitts reactions to the crises of Weimar democracy
after 1929, the feverish search for an authoritarian solution, and nally
Schmitts decision for Hitler.
6
The nal part of the book details Schmitts work
for the Nazis. Balakrishnan leaves out Schmitts three decades of work in the
Federal Republic of Germany, which he sees as more conventionally reac-
tionary (261).
Balakrishnans book is successful in listing many of the positions that
Schmitt took. But problems remain. First, the book does not succeed in relating
Schmitts theory to its context: without a full examination of the voluminous
secondary literature, the contextualization falls short of other scholars ac-
counts. Balakrishnan ignores, for example, Ingeborg Mauss important Marxist
account of Schmitt. Maus notes that Schmitt was preoccupied with property
rights to the detriment of legislative powers as early as 1926, not only after
5
See, esp., Richard Thoma, On the Ideology of Parliamentarism (1925), in Carl Schmitt, The
Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, MA, 1985), 7783.
6
Balakrishnan relies in particular on the important work of Andreas Koenen, Der Fall Carl
Schmitt: Sein Aufstieg zum Kronjuristen des Dritten Reiches (Darmstadt, 1995).
1930, as Balakrishnan suggests (161).
7
Second, the theoretical insights that
Balakrishnan does glean seem sparse. For example, his assertion that parlia-
mentary governments viability depends on a strong belief in the power of
rational discourse and that real liberals should embrace this point (76) ad-
dresses neither what rationality, discourse, and freedom actually are nor
Schmitts instrumental use of the argument. Balakrishnan does not prove that
Schmitts texts can bear the analytical weight he wants to grant them.
Despite his stated intention of avoiding any decision on whether Schmitt
was in 1933 an opportunist or a true follower of Hitler, Balakrishnan repeatedly
offers sympathetic readings of Schmitts actions. He refers to Schmitts con-
ference in 1936 on Jews in German jurisprudence as a well-organized intel-
lectual pogrom, for example, but then states that perhaps Schmitt thought
that if the role and presence of Jews in German legal culture could be precisely
delimited, libelous, indirect insinuations of Jewish inuence could be cur-
tailed (207). Why does Balakrishnan, on the basis of no cited evidence, pro-
vide such an excuse for Schmitt? Even Schmitts conservative student Ernst
Forsthoff, himself heavily implicated in the Nazi state, broke with Schmitt
over the conference.
8
Meiers book seeks to nd a single, coherent lesson that unites all of
Schmitts mature ideas in one doctrine (Lehre). That basic idea, according
to Meier, is the radical negation of the very possibility of political philosophy.
Carl Schmitt, Meier states, cannot be adequately grasped if one does not
grasp the center and the context of the work as political theology (xviii): what
Balakrishnan sees as a passing moment, Meier sees as the key to the whole.
Schmitts Concept of the Politicalrst published as an article in 1927, then
signicantly revised in 1932 and again in 1933is central to Meiers inter-
pretation. In an important earlier work, Meier traced the development of
Schmitts notion of the political in the 1920s and 1930s, arguing that Schmitts
notion was shaped by an interrupted and unacknowledged dialogue with Leo
Strauss.
9
In the rst version of The Concept of the Political, the political was
just one realm of life among others. Strauss commented that on this view the
political was in fact a liberal notion. Meier contends that Schmitt responded
to Strausss critique by revising his notion of the political: in the 1932 edition,
the political took on the character of a phenomenon with special intensity
ultimately expressing the power of the political community to grasp the mem-
bers of the association wholly and existentially (36). Of course, the existential
unity of the polis is a myth. Accordingly, Schmitts doctrine is at heart a
7
See Ingeborg Maus, Burgerliche Rechtstheorie und Faschismus: Zur sozialen Funktion und
aktuellen Wirkung der Theorie Carl Schmitts, 2nd ed. (Munich, 1980), 11517.
8
On Forsthoff, see Quaritsch, Carl Schmitt, 116.
9
See Heinrich Meier, Carl Schmitt and Leo Strauss: The Hidden Dialogue, trans. J. Harvey
Lomax (Chicago, 1995). See also Christoph Schonberger, Der Begriff des Staates im Begriff des
Politischen, in Carl Schmitt, Der Begriff des Politischen: Ein kooperativer Kommentar, ed. Rein-
hard Mehring (Berlin, 2003), 2144.
362 Caldwell
theology, in which revelation of truth, not argumentation, is what demands
total obedience to the collective: whoever does not decide for the truth of
faith, decides against it (73). Meier points out that Schmitt often draws his
examples not from the nineteenth-century era of nation-states but from the era
of religious wars: the Crusades and Cromwells battle against papist Spain
(5961).
10
The modern state, then, is not what Schmitt defends. Meier argues that
Schmitts book on Hobbes, published in 1938, is a criticism of the modern
state as the work of man and not of divine provenance (105). Schmitt
respects Hobbess decisionism and Hobbess statement that power, not truth,
makes law, but Schmitts admiration is tempered by a growing sense that
Hobbes hastened the collapse of metaphysics and the ascendance of the rational
and technical (104). Even worse, in Schmitts view, Hobbes left a place for
freedom of conscience, which gave Spinoza the opportunity to express reser-
vations about state religion (117). Hobbes may be devout, Schmitt con-
cludes, but he hastens the coming of the Antichrist, who stands for peace and
security, not truth (108).
For Schmitt, peace and security signies, following Strauss, a negation
of politics by means of technology; this is the essence of the despotic Antichrist
(135). But what criteria does Schmitt have to determine who is the Antichrist?
Meier argues that, if Schmitt is consistent, there can be no criteria, because in
the end a decision is based on faith, not reason (43). That, in turn, means
complete, existential obedience to he who is revealed to be the restrainer (ka-
techon) of the Antichrist. Obedience to the restrainer is also based on revelation
and reason. Both the Antichrist and the restrainer implement order; but how
is one to distinguish between the two?
11
Schmitts xation on the despotism
of the Antichrist, Meier argues, seems to blind him to real despotism, such as
that of the Nazi regime (134). Indeed, it was Schmitts specically Christian
revelation, with its hatred of the Jews for refusing to admit that Jesus is the
savior, that bound Schmitt to Hitler the longest, according to Meier (153).
Meiers argument, based on careful reading, seeks a clear themethat of
political theologyrunning through all of Schmitts texts. He draws attention
to what these texts leave obscure. In Meiers estimation, a biography of Schmitt
that deserves the name has yet to appear, and a whole series of questions
that preoccupy historians, and in particular mere apologists and prosecutors
recedes compared to the question of how Nazism related to political theology
(133). Yet there is something dissatisfying about Meiers reading precisely at
the moment he touches on the Nazis. Like Balakrishnan, he announces that
Schmitt was not a nationalist. He then poses the rhetorical question of how a
nationalist could get mixed up with the Nazis (146): by implication, Schmitt
10
Compare Balakrishnans argument in The Enemy (11415) that Schmitt was primarily de-
fending the values of the nation-state.
11
As Meier notes in The Lesson of Carl Schmitt (120), Hobbess Jesus is the Christ could
just as well be Allah is great: Schmitt criticizes relativism but provides no further criteria for
choice of savior.
collaborated because he was not a nationalist. Separating nationalism from
National Socialism is odd.
12
Schmitts book on Hobbess Leviathan, mean-
while, turns out to be both antisemitic and, Meier argues, implicitly anti-Nazi
insofar as his antisemitism was theological rather than racial (14951). Just
as odd, Schmitts theologically based antisemitism seems to be what distin-
guishes him from the Nazis. But Nazism was hardly scientic, and its anti-
semitism bore eschatological characteristics.
13
Is the distinction as clear as
Meier claims? Indeed, Schmitts political theology as described by Meier may
do no more than raise common prejudices to the level of revelation. Finally,
the alternative Meier sets up between political philosophy in Strausss sense
and political theology ultimately reinforces Schmitts critique of mere lib-
eralism. Like Balakrishnan, Meier remains within Schmitts frame of reference
to such an extent that he cannot pose the chief problem of liberal political
thought: how to mediate interests and concern for the whole within a complex
modernity. In a way, Meier seems to accept one important aspect of Schmitts
arcana: if the foundation of the polis can only be a fundamental philosophy or
myth, then ordinary political thought is of no consequence.
Meier challenges Balakrishnans entire approach by suggesting that a rejec-
tion of political philosophy in the name of political theology underlies
Schmitts work. It is unfortunate that Balakrishnan does not take Meier on,
choosing instead to snipe at him in a footnote for reducing Schmitt to a fun-
damentalist Catholic (Balakrishnan, 281 n. 8). Meiers argument is in fact
more complex: it suggests that Schmitt translated Kierkegaards Protestant
theology of crisis into a doctrine of law that focused on the ungrounded, ex-
tralegal decision in the name of faith, not reason. If Meier is correct, then
scholarly claims that Schmitt is a reasonable defender of politics, including
those claims made by Balakrishnan, Chantal Mouffe, and others, may be dead
wrong.
14
II. CARL SCHMITT IN WEIMAR: AUTHORITARIAN LIBERAL OR TERMITE OF
THE REPUBLIC?
Schmitt made his name as a scholar of constitutional law largely on the basis
of his Weimar-era writings. Some viewSchmitt as a prescient political observer
who understood the radical challenge that Nazism presented to democracy and
sought an adequate response. But if Meier is correct, then even Schmitts most
scholarly production might be better understood as anticonstitutional and even
as part of the conservative revolution.
15
One cannot avoid the problem of what
12
Helmut Quaritsch, who knew Schmitt, has, by contrast, no trouble labeling him a nationalist:
see Quaritsch, Positionen und Begriffe Carl Schmitts (Berlin, 1989), 5678.
13
See, e.g., Saul Friedlanders discussion of redemptive antisemitism in Nazi Germany and
the Jews, vol. 1, The Years of Persecution (New York, 1997), 98.
14
See, in particular, Chantal Mouffe, Schmitts Challenge, in The Challenge of Carl Schmitt,
24.
15
See, esp., Karl Lowith, The Occasional Decisionism of Carl Schmitt, in Martin Heidegger
364 Caldwell
Schmitts intentions were at the end of the Weimar Republic. Recent work on
Schmitts Constitutional Theory (Verfassungslehre) of 1928 and on his actions
in 193233 has added a new depth to the discussion.
Schmitt completed The Concept of the Political and Constitutional Theory
around the same time. The former argues for an existential foundation of the
state: a relatively homogenous group organizes itself in potential mortal con-
ict with an enemy. The latter describes a bourgeois state founded on law,
taking as its key example the Weimar constitution. Power, in short, confronts
law. How politics and law relate will provide clues to whether Schmitts work
shored up or gnawed away at the foundations of the republic.
Two German constitutional lawyers have focused on this problem. Ernst-
Wolfgang Bockenforde, professor of constitutional law and former judge at
the constitutional court, wrote a strong defense of Schmitt as constitutional
theorist in 1988. Now translated into English, the essay argues that Schmitts
political is in fact the stability and political unity necessary for constitutional
law to be effective.
16
Schmitt thus forces lawyers to consider law not as a
closed system but as a set of functions carried out within a context that itself
merits close attention. Bockenforde, who was personally close to Schmitt, adds
that one need not accept all of Schmitts conclusions to take his starting point
seriously. Ulrich Preuss, another professor of law, likewise nds Schmitts
constitutional work worth reading. Unlike Bockenforde, Preuss questions
whether Schmitts ideas are directly usable for constitutional democracy. De-
mocracy, in Schmitts conception, is an immediate, existential unity of the
people, prior to law. The people is not constituted by legal process but creates
that legal process, and it can in theory always create new foundational law.
And yet, Preuss continues, the people cannot act in Schmitt. Law, in short,
leads a precarious existence, subject to being ignored or eliminated in the event
of an emergency. And it is not the people that decides on the emergency but,
rather, the institutional guardian of the constitution. In effect, Preuss argues,
Schmitts doctrine justies in advance the special supraconstitutional status of
specic institutions, such as the army.
17
Preuss disagrees with Bockenfordes
attempt to domesticate Schmitt. He notes that Schmitts distinction between
friend and enemy always also applied to the internal enemy: this was more
than a conservative call to recognize the primacy of foreign policy, as Bock-
enforde seems to argue. Schmitts ultimate aim was to unleash the political,
not to restrain it.
Other recent essays take on Schmitts notion of the political and his de-
and European Nihilism, ed. Richard Wolin, trans. Gary Steiner (New York, 1995), 3769; and
Richard Wolin, Carl Schmitt, Political Existentialism, and the Strong State, in The Terms of
Cultural Criticism: The Frankfurt School, Existentialism, Poststructuralism (New York, 1992),
84104.
16
See Ernst-Wolfgang Bockenforde, The Concept of the Political: A Key to Understanding
Carl Schmitts Constitutional Theory, in Law as Politics, ed. Dyzenhaus, 3755.
17
See Ulrich Preuss, Political Order and Democracy: Carl Schmitt and His Inuence, in The
Challenge of Carl Schmitt, ed. Mouffe, 15765, and Carl Schmittdie Bandigung oder die
Entfesselung des Politischen, in Mythos Staat, ed. Voigt, 14547, 150, 152.
nition of the people in even more polemical fashion. Nicolas Tertullian, for
example, highlights Schmitts admiration for Mussolini and the elimination of
secret voting.
18
Harald Katzmair and Hermann Rauchenschwandter argue that
the substantive Volk marginalizes law in Schmitts work already in the 1920s,
long before his turn to Nazism.
19
Stanley L. Paulson takes on Schmitts use of
Rousseau to develop a theory of democracy. Identity of ruler and ruled,
central to Rousseaus theory, becomes a statement of fact for Schmitt. But the
meaning of identity in Schmitt remains vague and undened; by contrast,
Paulson argues, Rousseaus general will functioned as a hypothetical for-
mulation expressing democracy as procedure.
20
Bockenfordes attempt to de-
fend Schmitts value as an analyst of democracy has its opponents, then. Yet
two recent works, by Renato Cristi and Jeffrey Seitzer, respectively, expand
that defense, seeking to reclaim Schmitts Constitutional Theory for contem-
porary analyses of liberal democracy.
Cristi views Schmitt as a nineteenth-century liberal seeking to build walls
that would defend the traditional liberal rights of man against the state as well
as defend the strong state against the presumed threat of democracy. From
1918 on, Cristi argues, Schmitts work dealt with the revolution of 191819,
which demolished the constitutional monarchism that conservative National
Liberals had defended (34). After Schmitts far right period, or what Cristi
calls the hard decisionism of Joseph de Maistre and Donoso Cortes (5355,
63, 7273), Schmitt did develop a sincere interest in a reform of parliamen-
tarism and not in its abolitionnot to strengthen democracy but to neutralize
the peoples representatives, according to Cristi (1516). Schmitts arguments
for expanding executive powers after 1930, Cristi argues, sought to recreate
the pre-1918 monarchical principle; now the strong state would be based on
a depoliticized democracy and a marginalized parliament (15, 69).
Cristi has done a service by focusing on Schmitts Constitutional Theory.
In that work, Schmitt saw the rule of law as unpolitical: it served to protect
society against the state. He was concerned that parties and groups in the
Weimar Republic were using the mechanisms of the rule of law to promote
their own interests. In response to the domination of the Reichstag by special
interests, Schmitt developed a constitutional theory that barred parliament from
interfering with the order of society. He argued that a fundamental decision to
protect private property had been made in the 191819 revolution and that the
parliament was therefore banned from interfering in social relations or expro-
priating property (12325).
21
Under normal conditions, in short, the parlia-
18
See Nicholas Tertullian, Carl Schmitt zwischen Katholizismus und Nationalsozialismus, in
Gegen den Ausnahmezustand, ed. Pircher, 45.
19
See Harald Katzmair and Hermann Rauchenschwandter, Das Dispotiv des Volkes: Zur Kon-
stitution des politischen Subjekts bei Carl Schmitt, in Gegen den Ausnahmezustand, ed. Pircher,
141, 144.
20
See Stanley L. Paulson, Zugerichtete Identitat: Zur Bewertung einiger Elemente der De-
mokratietheorie Carl Schmitts, in Gegen den Ausnahmezustand, ed. Pircher, 16777.
21
Cristi notes that Schmitt defended property as a right and that he viewed property as one of
the elements that gave an otherwise formal system substance (Cristi, 149, 152, 193, 208).
366 Caldwell
ments job is simply to keep the system going. In a moment of emergency, by
contrast, the president, as defender of the substantive constitution, would have
to step in to restore order (9294). For Schmitt, the people remained offstage,
deprived of the constitutive power of popular sovereignty (109). Their prior
decision for property rights barred the parliament from far-reaching social
reform; their prior decision for order empowered the president to act above
mere constitutional law. Cristi offers a convincing reading of Schmitts doc-
trine of presidential authority above the letter of the law. Cristi is also explicit
about the models connection to what he terms authoritarian liberalism else-
where, including in Pinochets Chile.
22
In Cristis interpretation, Schmitt defended parliamentarism until 1929,
when the Reichstag became paralyzed. Thereafter, Schmitt sought other ways
to defend authoritarian liberalism. The key piece of evidence for Cristis in-
terpretation is a speech entitled Strong State and Sound Economy that
Schmitt gave on November 23, 1932, to a group of business leaders in Dus-
seldorf, which is translated as an appendix to Cristis book. In the speech,
Schmitt argues that all states were tending to become total in the twentieth
century but that there were different kinds of total states. The Weimar Re-
public, for example, was a quantitative total state in that it tended to penetrate
all domains and all spheres of human existence. But the quantitative total
state was weak due to its incapacity to resist the onslaught of parties and
organized interests (Schmitt, quoted in Cristi, 218). A different kind of total
state was needed, one that was qualitative, that ensured control over the army
and the bureaucracy and left other areas to self-management or to the free
economy (22127). If that new state were attained, Schmitt added, we would
then create new arrangements, new institutions, new constitutions (quoted in
Cristi, 230). By the end of 1932 at the latest, Schmitt was building a bridge
from Weimar to a new order, potentially a corporatist-authoritarian order to
preserve property (19899). However, Cristi emphasizes, the speech did not
evince a commitment to Nazism. Only after the Nazi seizure of power, Cristi
argues, did Schmitt recognize a new constitution. His earlier turn to authori-
tarianism as well as his Nazism, however, paralleled the actions of those bour-
geois who gave up their democracy to protect their own interests (50n).
23
Cristi convincingly reinserts Schmitt into the National Liberal and conser-
vative tradition of Heinrich von Treitschke and Paul Laband (118). Schmitts
authoritarian proclivities were in fact not far from the mainstream in Germany
(see also Mollers, 6263). Cristis reconstruction of Constitutional Theory and
its defense of a mixed constitution containing different forms of representation
is also welcome (Cristi, 12637). Less convincing is his argument that Schmitt
sought, in good faith, to defend parliament and the rule of law. Even at the
22
See Renato Cristi, Constitutionalism and the Founding of Constitutions: The Metaphysics
of Constituent Power; Schmitt and the Genesis of Chiles 1980 Constitution, Cardozo LawReview
29 (2000): 174975.
23
Cristi refers to arguments by Ingeborg Maus and David Abraham here. It is unclear whether
he follows other aspects of the Marxist theory of fascism.
time some scholars noted that the work described parliamentary democracy
ironically; in the words of Kierkegaard, It is the ironists joy to seem to be
caught in the same noose in which the other person is trapped.
24
Cristis thesis
that defense of private property and the free market was at the heart of
Schmitts politics also has problems. After all, Schmitt defended property to
unburden the state, to keep it from becoming too involved in society: was the
protection of property the key for Schmitt, or was he primarily seeking to
defend the state, which, Cristi notes elsewhere, was central to both Schmitt
and German liberalism? Finally, Cristis treatment of Schmitt and Nazism is
inadequate. The Fuhrerprinzip was not the same as the monarchical principle
(51), and Schmitts turn against Friedrich Julius Stahl, deeming him at rst an
admirable conservative but later attacking him as an assimilated Jew under-
mining German politics, requires better analysis (cf. 55, 110, 118, with 155).
Seitzer also takes Schmitt seriously as an innovator in political thought.
Schmitt, according to Seitzer, brought comparative history to bear on the basic
institutions of Weimar democracy. Unlike Cristi, however, Seitzer rejects the
idea that Schmitt was a sincere defender of liberal constitutionalism. Instead,
he was a realist who accepted the need to work with existing materials, awed
though they might be (Seitzer, 6) to strengthen the state. Seitzers book fo-
cuses on four case studies fromSchmitt: his use of Sieye`s and the constitutional
history of the French Revolution to understand the place of sovereignty in the
Weimar constitution; his examination of communal self-government as a force
for instability; his considerations on the social prerequisites of the American
model of constitutionalism and its inappropriateness for Germany; and his
rejection of a judicial role in political decisions. In each case, on the basis
of historical comparison Seitzer questions the conclusions that Schmitt reached
and suggests other solutions that appear both reasonable and less destructive
of democratic institutions.
In Constitutional Theory, for example, Schmitt sought clues to the nature
of sovereignty in the history of the French Revolution. The Weimar constitu-
tion, according to Schmitt, provided no clues because it was composed of too
many compromises and contradictions, especially in the catalog of basic rights
(13). Schmitt discovered, according to Seitzer, that the great French insight
. . . was in seeing the act of establishing a constitution itself as constitutive:
the people, unbound by law, exercised their will to create the law (19). The
insight derives from Sieye`s; Schmitt pushed the logic further to assert the
presence of a preexisting national identity that made the basic decision of the
Revolution (20). Representative institutions exist only within this preestab-
lished framework and cannot violate it.
Seitzer notes that Schmitts argument combines empirical and normative
24
Sren Kierkegaard, The Concept of Irony with Continual Reference to Socrates, ed. and trans.
Howard V. Hong and Edna V. Hong (Princeton, NJ, 1989), 250. On Schmitt and Kierkegaard,
see, esp., Lowith, Occasional Decisionism, 14142; on the rhetoric of the Verfassungslehre,
see Margrit Kraft-Fuchs, Prinzipielle Bemerkungen zu Carl Schmitts Verfassungslehre, Zeit-
schrift fur offentliches Recht 9 (1930): 40215.
368 Caldwell
claims and that both are questionable. Empirically, France did not speak as
one in the Revolution (and neither did Sieye`s). Indeed, if anything, national
unity was produced by the Revolution itself and its aftereffects, and through
many local initiatives rather than as one central afrmation of unity (3233).
Schmitt simplied on an empirical level in order to obfuscate on a normative
one: Schmitt uses concepts, like that of identity, to get around empirical data
in order to assert the existence of a preexisting will (28). Schmitt aimed not
to uncover potential sources of stability and identity but rather toretrot
liberal constitutionalism to strengthen the state, independent of society and
parliament (78).
Seitzers other chapters follow a similar format. First he lays out Schmitts
claim based on comparative history; then he offers an alternative and con-
vincing reading of the details that point to decisions completely unlike
Schmitts. Schmitt feared that the proliferation of local power centers in the
form of local self-government would undermine the strength of the state, point-
ing to the stability of the empire in contrast to Weimar; in fact, the stability of
the empire may have been the result of decentralization, which kept criticism
from being focused solely on the Reich and allowed for more exible local
responses and more effective local governance (6668). Schmitt feared that
as high courts took on political cases they would lack the institutional basis
and legitimacy to make their decisions stick and would end up weakening the
state; in fact, German courts tended to defer to power, and, in any event,
Schmitts strategy of increasing the power of the president would put more
pressure on the courts to limit that power (9496). Schmitt feared that ascrib-
ing to courts an important role in the constitutional system would contradict
their tradition of adjudicating cases by simply subsuming facts to an existing
legal rule; in fact, as Schmitt himself noted in 1912, German courts had already
become more activist in the empire and had developed a set of criteria to aid
them in these judgments (11014). In the end, Schmitt overlooked the pos-
sibility that a multiplicity of institutions might offer more stability than could
a single leader, no matter how democratically elected. In short, despite
Schmitts methodological sophistication, his use of comparative history did
not serve his own stated purposes especially well (123). But Seitzer under-
states his case. Was Schmitt really seeking a proper solution through compar-
ative analyses at all, or was he using comparisons in a tendentious fashion to
shore up his own political judgments? Did his work exemplify serious schol-
arship? Or did it serve primarily strategic and tactical purposes in specic
historical situations, as other scholars have argued?
25
Seitzers work, like
Cristis, leaves us with the question of what Schmitts intentions were.
Schmitts actions at the end of the Weimar Republic may offer insight into
his intentions. For the rst and last time in his life, he was in a position to
inuence high politics directly. On July 20, 1932, Chancellor von Papen issued
a presidential emergency decree that imposed commissarial rule on the state
25
See, e.g., Gunter Heer, Wissenschaftlichkeit als Einsatz: Methodologie als politische Stra-
tegie bei Carl Schmitt und Hans Kelsen, in Gegen den Ausnahmezustand, ed. Pircher, 24984.
of Prussia. Schmitt represented the Reich at the trial that followed and there-
after served as an adviser to General von Schleicher. In short, he was a player
in the nal act of Weimar democracy. The question is whether he played the
role of the gravedigger of federalism and constitutionalism in a process that
moved logically to the Gleichschaltung of the states under the Nazis, as he
would claim in 1933, or that of the astute observer raising a cry of despera-
tion against the threat of extremism, as he put it in 1958.
26
Historians have often considered Schmitt as an advisor to Schleicher and
legal representative of Papenthat is, as the lawyer who justied a coup
against the democratic parties of Prussia and promoted plebiscitary dictator-
shipwhich in fact matches Schmitts interpretation of the events of 1933.
27
It is fair to say, with Lutz Berthold, that the argument that Schmitt directly
supported the Nazis no longer holds water (Berthold, 11). However, many
besides the Nazis sought to destroy Weimar, so Schmitts distance fromNazism
does not yet provide insight into his actual intentions. Recent work by Bert-
hold, Gabriel Seiberth, and Wolfram Pyta based on Schmitts papers seems to
bear out Benderskys claim that Schmitts stronger connection was to Schlei-
cher and that the distance between Schleicher and Papen grew after August
1932. Papen aimed at a new constitution that broke with egalitarian democracy
and restored an upper house and the monarchy. Did Schleicher and Schmitt,
by contrast, try to save democracy?
Starting in 1931, Schmitts efforts to gain recognition from those in power
began to pay off. His scattered arguments justifying presidential authority in
Defender of the Constitution (1931) were apparently developed in consultation
with the Ministry of the Interior and the Ministry of the Army. Beginning in
February 1932, according to Seiberth, Schmitt discussed all his writing prior
to publication with the Ministry of the Army (Seiberth, 8789). By the time
Papen moved against Prussia, Schmitt was a known defender of the presiden-
tial regime and its extensive use of dictatorial powers. Schleichers represen-
tatives recruited him to represent the Reich in court.
Seiberths book reexamines the strike against Prussia and the political trial
that followed it, seeking to explain the legal and political issues at stake. On
April 12, 1932, twelve days before the Prussian elections in which the Nazis
were expected to make great political gains, the ruling Center and Social Dem-
ocratic parties changed a parliamentary rule: now a parliamentary majority
could remove a government only if it put another government in the rst ones
placeonly if, in other words, there was a positive vote of no condence.
The aim was to keep the instruments of state power, including Prussias eighty-
thousand-strong police force, out of the hands of the Nazis (3843). Carl
Schmitt commented on these actions in his Legality and Legitimacy, published
26
The rst interpretation can be found in Carl Schmitt, Das Reichsstatthaltergesetz (Berlin,
1933), 7; the second appears in his postscript to Legality and Legitimacy, trans. and ed. Jeffrey
Seitzer (Durham, NC, 2004), 95; this translation appeared too late for inclusion in this article.
27
See, e.g., Hans Mommsen, The Rise and Fall of Weimar Democracy, trans. Elborg Forster
and Larry Eugene Jones (Chapel Hill, NC, 1996), 454, 475.
370 Caldwell
in summer 1932. He viewed them as an example of the political advantages
that adhered to the legal possession of power: a party may take power, then
close the door behind it (9293).
28
The solution in the Prussian case, however,
was precarious. Only the toleration of the law by the Communists kept the
new assembly from reversing the rule and electing a Nazi minority cabinet
(41). Even the Social Democratic Party (SPD) leadership considered federal
intervention probable and even desirable as a way to secure the instruments
of state powerso long as the aim was to maintain the constitution, not break
with it (54). The blow, in other words, was not unexpected. But it came in an
unexpected form: Papen justied the attack by pointing to the role played by
the Communists in maintaining the caretaker government, implying that the
SPD was fond of the Communists. Papens ofcial declaration, furthermore,
accused the SPD of violating its duties toward the Reich (68). Instead of co-
operating with Prussias democratic parties, then, Papen accused them of im-
proper actions and criticized them for failing to distinguish between the Com-
munists, who were enemies of the state, and the up and coming movement
of the Nazis (quoted in Seiberth, 76). Finally, Papens government was frank
about its aim to usher in a new, conservative constitution (62).
Seiberth argues that Schmitts statements during the trial should be attributed
not to Schmitt the political theorist but to Schmitt the attorney (14344). Carl
Schmitts job was to defend Papens actions on the legal basis laid out by
Papen himself. But, Seiberth continues, Papen did not deal Schmitt and his
fellow lawyers a good hand. While the president had wide latitude to intervene
even in state governments to restore order, constitutional practice and theory
drew the line at measures that impinged on the political organization of a state
(12223, 14750). Furthermore, the argument that the Prussian government
had violated its duties to the federal government was insupportable. Seiberth
argues that Schmitt was aware of this fact and therefore sought to reinterpret
the Prussian actions as an objective violation of duty that involved a merely
temporary suspension of ofcialsa shift in emphasis that was indeed less
than believable (1078, 16369).
29
Finally, Schmitt reiterated Papens attack
on the Social Democrats and the Communists in court. He defended the Papen
regimes treatment of the Nazis, claiming that it had acted in a just and ob-
jective way with regard to a movement supported by millions of Germans,
and again rejected the insulting equation of the Nazis with the Communists.
30
He furthermore denied the possibility that a strongly organized and central-
ized political party might make use of the state parliament to put its agents
into positions of powerthat allowing such a party to take power would be
like putting the fox in charge of the henhouse. The reference here remained
abstract, not limited to Communists (or, presumably, Nazis), and Social Dem-
ocrats naturally took offense.
31
Again, Seiberth attributes Schmitts statements
28
See Schmitt, Legality and Legitimacy, 3536.
29
See also Wolfram Pyta and Gabriel Seiberth, Die Staatskrise der Weimarer Republik im
Spiegel des Tagebuchs von Carl Schmitt, Der Staat 38 (1999): 438, 442.
30
Carl Schmitt, Preussen contra Reich vor dem Staatsgerichtshof (Berlin, 1933), 39.
31
Ibid., 468.
to his job as legal representative. He leaves out a further aspect of Schmitts
argument at court, however. Schmitt argued that the only power that could
decide whether a party should be declared illegal was an independent gov-
ernment.
32
Independent in this context could only refer to independence
from political parties. At issue was the Prussian ban on the Nazi SA, the
Sturmabteilung (storm troops), which contradicted Papens (and Schleichers)
decision to lift a federal ban on the SA (a context that Seiberth leaves out
completely). Seiberth downplays the fact that Schmitt rejected the right of a
democratic political party to take action to ward off further violence in a pre-
carious situation, a position that dovetailed with Schmitts own extreme distrust
of parties and pluralism. Seiberths attribution of Schmitts positions to his job
as lawyer is too easy.
33
Nonetheless, Schmitts diaries reveal an ambivalent lawyer who had night-
mares about the judge, who was frequently depressed and felt like an animal
hounded to death, who found the whole trial ridiculous and a disgrace for
me personally (Schmitt, quoted in Seiberth, 17980).
34
On the basis of this
evidence, Seiberth rejects the idea that Schmitt supported Papens position and
harbored any sympathy for the Nazis; indeed, Schleicher was prepared by mid-
August to act against the Nazis, and Schmitt was involved with preparing the
justication for that action (14344, 181).
35
Seiberths strongest evidence
against Schmitts sympathies for Nazism is an article written by Schmitt for
the July 19, 1932, issue of the Tagliche Rundschau, in which Schmitt sum-
marized his arguments about the danger that a party might use legal methods
to deny other parties an equal chance at power. The editorial board of the
Tagliche Rundschau appended a notice that warned its readers against voting
Nazi. Seiberth assumes, on the basis of an interview with Schmitt in 1972,
that Schmitt himself approved that corollary (94, 94 n. 79). This evidence is
suggestive but not denitive. The fact remains that Schmitt did not write the
section of the article explicitly against the Nazis. Indeed, Dirk Blasius, whose
work is examined below, argues that Schmitt aimed not to keep people from
voting for the Nazis but rather to guarantee the Nazis an equal chance at power
(Blasius, 47). As is often the case in Schmitt scholarship, the same document
can be used to support opposite conclusions.
The trial, in any event, ended with a split verdict by the State Court, and
Seiberth does a good job of laying out the responses to the verdict. His deeper
purpose is to show how the case marked a turning point. Papens plans for
constitutional change were dead in the water. President Hindenburg, frightened
by the fact that 90 percent of the Reichstag delegates had declared their lack
of condence in the government, now refused to declare a state of emergency
32
Ibid., 38.
33
For a good recent discussion of Schmitt and pluralism, see Robert Christian van Ooyen, Der
Staat der Moderne: Hans Kelsens Pluralismustheorie (Berlin, 2003), 16192.
34
See also Pyta and Seiberth, Staatskrise der Weimarer Republik, 445.
35
See Wolfram Pyta, Verfassungsumbau, Staatsnotstand, und Querfront: Schleichers Versuche
zur Fernhaltung Hitlers von der Reichskanzlerschaft August 1932 bis Januar 1933, in Gestal-
tungskraft des Politischen: Festschrift fur Eberhard Kolb, ed. Wolfram Pyta and Ludwig Richter
(Berlin, 1998), 18082.
372 Caldwell
that would postpone elections beyond the constitutionally set deadline. The
threat of civil war was too great. Now, according to Seiberth and Berthold,
Schleicher developed a qualitatively new approach to the crisis, in close co-
operation with Carl Schmitt.
The alternatives were few, and Berthold explicates them well in his book.
One possibility was to follow the constitution to the letter, in the process
exposing the country to the threat of massive violence every three or four
months. This alternative seemed too risky to many, and Berthold agrees with
that assessment (64). One might ask, though: given the decline of the Nazi
Party from August 1932, was this option really so outlandish? In any case,
those few individuals who were still in a position to inuence decisions in
January 1933, including Schleicher, Papen, and Hindenburg, had already elim-
inated this choice. A second option was a state of emergency in which the
apparatus of the statearmy, bureaucracy, presidentwould take power to
deal with the crisis, if necessary against the word of the constitution. For
instance, the state might ban extremist parties (3236, 6465). But such a
Staatsnotstand would clearly mark a break with the constitution. Athird option
was to suspend elections by emergency decree, either on the basis of the state
of emergency of the second option or on the basis of what Johannes Heckel
termed the state of constitutional emergency (Verfassungsnotstand) (65, 68
70). According to Berthold, close associates of Schleicher also developed a
fourth plana plan that, furthermore, has surfaced among Schmitts papers
and bears the marks of his inuence (3840). The fourth option was a simple
refusal on the part of the government to recognize a vote of no condence by
a majority of the parliament that itself could not organize a positive vote for
a new government.
36
That action (or rather inaction) would amount to inter-
preting article 54 of the constitution, which provided for the vote of no con-
dence, as demanding a constructive vote of no condence, an argument that
Schmitt and others worked out after 1926 and that many on both left and right
came to advocate by the end of the republic.
37
Like Seiberth, Berthold con-
cludes that Schmitt was not in favor of Papens plans to change the constitution
and aimed instead at the restoration of orderly constitutional relations and not
at their further erosion (76). Carl Schmitt was not a conservative revolu-
tionary and not Papens man, in Bertholds estimation, and was furthermore
not an antidemocratic thinker who undermined democracy, as Kurt Sontheimer
argued (Berthold, 77).
38
As happens so often in interpretations of Schmitt, however, doubts remain.
First, as Berthold himself notes, refusing to recognize a vote of no condence
bore its own problems. Schmitt saw the action as justied by the presidents
36
The position paper laying out this argument was penned by Horst Michael, who had been
the point of contact between Schmitt and the Ministry of the Army; Berthold reprints the archival
nd in Carl Schmitt, 8085.
37
See Schmitt, Verfassungslehre, 34344; and Lutz Berthold, Das konstruktive Misstrauens-
votum und seine Ursprunge in der Weimarer Staatsrechtslehre, Staat 36 (1997): 8194.
38
See Kurt Sontheimer, Antidemokratisches Denken in der Weimarer Republik: Die politischen
Ideen des deutschen Nationalismus zwischen 1918 und 1933 (Munich, 1992), 7882.
oath of ofce, which required him to guarantee the constitution (article 42,
cited in Berthold, 62)but did that idea not itself point to a kind of supralegal
right to act in the event of state crisis? The difference, Berthold claims, lies in
the spirit (Geist) of the actor, whether he intended merely to protect the state
or rather to defend the concrete order of the constitution (63). Given Schmitts
willingness to allow basic decisions of the constitution to trump mere con-
stitutional laws, the question whether Schmitts spirit was one of returning
to Weimar or one of refashioning the existing law must arise. In the end, was
not presidential, authoritarian rule itself a break with the Weimar constitu-
tion?
39
Schmitt was depressed upon hearing of Schleichers resignation. His
diary entry for January 27, 1933, reads: The myth of Hindenburg is at an end.
The old man was in the end only a MacMahon. Horrid situation. Schleicher
resigns. Papen or Hitler is coming (Schmitt, quoted in Berthold, 73). Berthold
provides his own interpretation of the diary entry: President MacMahon failed
to prevail over the political parties in the French parliament in 1877 and
thereby weakened the presidency of the Third Republic so much that no future
president was able to dissolve parliament (7374).
40
However, this interpre-
tation does not do justice to the wider context, a context that Schmitt presum-
ably knew.
41
MacMahon was not resisting a negative vote of no condence;
rather, he was opposing the demand of a strong republican majority in parlia-
ment that he appoint a republican government. Parliamentary elections re-
turned a prorepublican majority. MacMahon, faced with the options of a coup
detat, a possible restoration of the monarchy, or a republic, resigned. What
lessons did Schmitt actually derive from MacMahons resignation? That Hin-
denburg had failed to protect the constitutional power of the president? That
he had failed to halt the return of the parliamentary republic? That he had
failed to set the stage for substantive constitutional change? Bertholds and
Seiberths studies certainly broaden our understanding of Schmitts role at the
end of Weimar, but the question of Schmitts role in the republicas termite
or as defenderremains open.
III. CARL SCHMITT IN NATIONAL SOCIALISM: ANTISEMITIC RADICAL OR
CRITIC OF LIBERAL GLOBALIZATION?
Schmitt was not a Nazi before 1933. His energetic involvement with Nazis
from 1933 to 1936, however, raises the possibility of continuities with his
39
See Dieter Grimms judgment of Schmitts actions, which takes into account Schmitts dis-
tinction between constitution as decision or condition and mere constitutional statutes:
VerfassungserfullungVerfassungsbewahrungVerfassungsauosung: Positionen der Staats-
rechtslehre in der Staatskrise der Weimarer Republik, in Die deutsche Staatskrise 19301933:
Handlungsspielraume und Alternativen, ed. Heinrich August Winkler (Munich, 1992), 19396.
40
See also Pyta and Seiberth, Staatskrise der Weimarer Republik, 610; and Pyta, Verfas-
sungsumbau, 197.
41
But compare the disparaging comment by Hans-Ulrich Wehler, Deutsche Gesellschaftsge-
schichte, vol. 4, Vom Beginn des Ersten Weltkriegs bis zur Grundung der beiden deutschen Staaten
19141949 (Munich, 2003), 491.
374 Caldwell
earlier thought. Certainly many of the ideas he had developed bore a resem-
blance to Nazi ideals. His notion of the political as an intense, existential
phenomenon that involves the constant possibility of war on the part of the
collective was not unlike Nazi rhetoric about the ghting national community.
His statement that if a people lacks the will to maintain the political it is a
weak Volk that will disappear from the world sounded like Nazi propaganda
about the survival of the race, no matter how much Schmitt might have in-
tended a realist politics.
42
His doctrine that the leader was empowered to defend
a substantive constitution whose premise was the homogeneity (Gleichar-
tigkeit) of the Volk may not have been intended as a theory of the Fuhrerprin-
zip, but it would require no great stretch of the imagination to shift to that
position.
43
Even though Schmitt became a Nazi only in 1933, the problem of
continuity remains.
Berthold and Seiberth both detail Schmitts actions in the nal months of
Weimar. Their arguments imply a sharp discontinuity when Schmitt jumped
on the Nazi bandwagon. Blasius, by contrast, argues that Schmitts actions in
1932 make sense as part of the gradual but continuous process by which
Schmitt and other conservatives accommodated themselves to Nazism. Before
Papens strike against Prussia on July 20, Blasius argues, Schmitt had defended
ideas that were in no way out of the ordinary among conservative and con-
servative-liberal Weimar jurists: the fear of democracy, distrust of the masses,
and the yearning for a strong presidential regime (16). Schmitt crossed the
Rubicon (70) after the strike against Prussia, when he gave up denitively on
the parliamentary republic. As Blasius notes, Papens action against Prussia
was really an attempt to smash the political entity governed by Social Dem-
ocrats, who had made the defamatory connection between Nazis and Com-
munists (4146). Blasius rejects Seiberths argument that Schmitts real aim
was to stop the Nazis, noting that little unambiguous evidence connects
Schmitt to an anti-Nazi position (46). Blasius points out, as Seiberth did not,
that Schmitt criticized the occupation of the state by political parties (45).
The problem for Schmitt in 1932 was not extreme parties, but parties per se.
Schmitts secret message to rulers, his arcanum, in Blasiuss view, is simple:
he advocates a strong state, as exemplied by Prussia. Blasius does not attri-
bute to fundamentalist antisemitism the place in Schmitts thought that Meier
and others do (1014). In 1932, Schmitt defended the spirit of Prussia explic-
itly in the form of Hindenburgand just as explicitly did not defend the
position of the SPD and Center Party leaders who acted as Prussias caretaker
government (42). After Hitler came to power, Schmitt helped bridge the gap
between state-centered conservatives and Nazis. And he himself basked in the
glory of old Prussia when he was named by Goring to the position of Prussian
state councillor (Staatsrat) (Blasius, 14). The position corresponded to that of
42
Carl Schmitt, Begriff des Politischen: Text von 1932 mit einem Vorwort und drei Corollarien
(Berlin, 1963), 54.
43
See Schmitt, Legality and Legitimacy, 2627 (translating substantielle Gleichartigkeit as
essential similarity), and Verfassungslehre, 227.
advisers to the Prussian monarch before the constitution of 1848, and Schmitts
historical work from 1933 to 1936 celebrated the reversal of the path toward
constitutionalism and liberalism that Germany had taken after 1848 (11112).
Hans Frank, later responsible for millions of deaths in occupied Poland, be-
came Schmitts personal protector.
Schmitt now entered into the most disturbing part of his career. He described
the Enabling Act as a constitutional act, staking out a claim to be the leading
lawyer of the Nazi state. He helped write the new laws that placed munici-
palities under party control rather than under the control of the central state
(Blasius, 1057). He justied Hitlers self-appointment as legislator, judge,
and executioner during the purge of June 30, 1934, and generally bound him-
self to Hitler and Hitlers project (12023). In the end, he served the fuhrer,
not the law (146). As Blasius argues, Schmitt helped to transform the tradi-
tional pious deference to the state into the myth of the fuhrer.
44
Last but not
least, Schmitt made his pre-1933 references to the homogeneity of the Volk
more precise. When the Nuremberg Laws appeared, he celebrated the end of
the mere legality of earlier German constitutions, which did not originate in
German blood and German honor (Schmidt, quoted in Blasius, 168). In
1936, as noted above, he hosted an entire conference dedicated to purging
Jews from German scholarship. He turned against former colleagues, liberals
like the Jew Kelsen and even conservatives like Friedrich Julius Stahl, him-
self a convert to Christianity. One cannot see into the soul of this Jew,
Schmitt said of Stahl, and he called for clearly distinguishing Jews from Ger-
mans with Jewish names: Stahl became Stahl-Jolson. The battle against
the Jews, Schmitt stated, was an exorcism, and, citing Hitler, he termed that
struggle the work of the Lord (quoted in Blasius, 15455).
45
Blasius shows
that Schmitt was not moderating Nazi extremism; rather, he was part of its
radicalization. Schmitts fall from grace, Blasius argues further, had less to do
with substantive disagreements with Nazism than with battles for administra-
tive territory among Himmler, Frank, and Goring (17078).
Although it is a useful account of Schmitts public writings for the Nazis,
Blasiuss book does not break new ground. He reserves particular anger for
Schmitts contribution to burying the idea of Prussia (222): Schmitts friend
Johannes Popitz, likewise a conservative who collaborated with the Nazis for
years, is by contrast an upright man who paid with his life for his role in
the 1944 plot to assassinate Hitler (215). The comparison is valid: Schmitt
took no risks. But Blasius is too limited in his interpretation, ignoring other
motivational forces in Schmitts worldview: why, for example, the term ex-
orcism? Recent work on the images, symbols, and associations in Schmitts
work have opened up the cultural dimension of his Nazi engagement and
thrown a new light on his work in general.
If determining what Schmitt did in the nal months of Weimar is difcult,
44
For a similar argument, see Tertullian, Carl Schmitt, 118.
45
Carl Schmitt, Die deutsche Rechtswissenschaft im Kampf gegen den judischen Geist, Deut-
sche Juristen-Zeitung 41 (1936): 119399.
376 Caldwell
however, reconstructing his mental universe is that much harder. In his recent
work Lateinischer Faschismus: U
ber Carl Schmitt den Romer und Katholiken

(Latin fascism: Carl Schmitt, the Roman and the Catholic), Richard Faber
shows what is at stakeand the difculty of constructing an argument based
on cultural allusions. Like Charles Maurras, the atheist Catholic whose Ac-
tion Francaise Schmitt read, and like Mussolini, with his cult of the Dux,
Schmitt admired the unity of politics and religion in the Roman Empire. This
yearning for Imperial Rome, according to Faber, is a gateway to fascism
(30). Like other Catholic authoritarians, Schmitt admired the systems of Mus-
solini, Salazar, and Franco. And he helped Hitler to become a new political
Pope of Germany and of the German empire (43). Fabers book suffers from
the lack of an introduction, which might have explained his method and set
out clearly both his argument and its limits. Without such a clarication, the
ascription of certain core beliefs to Schmitt seems based on the assertion of
the author alone. The argument works through a string of quotations, from
Schmitt and others, and through images. Faber provides no conclusive proof
that Schmitts work derives from his Roman convictions (although that
seems to be Fabers intention). The repetition of entire sentences and quota-
tions from one essay to the next, meanwhile, makes the reader more rather
than less aware of the arguments problem.
To make a stronger argument on the basis of culture, a scholar needs to lay
out the connection between text, value-laden image, and action with care and
precision. Matthias Weimayr is more successful than Faber in this respect. His
essay on Schmitts style shows the connection between Schmitts politics and
his classicism. Weimayr notes that a complaint about the decadence of lan-
guage runs through Schmitts work. A yearning for clear denitions of basic
concepts delineates Schmitts classicism and rejection of the ambiguity of ro-
manticism. Concepts like state, law, sovereignty, and enemy dissolve into a
formless mass in the face of liberalism, democracy, and pacism. Schmitts
worries about linguistic decline and political decline come together, Weimayr
argues, in the gure of the Jew, engaged in blurring and neutralizing identities,
depoliticizing the state, and secularizing the Christian community.
46
Attention to the way the Jew functions in Schmitts Nazi-era writings may,
in fact, shed light on the content of Schmitts arcana, the revealed faith of his
political theology that Meier pointed to. Raphael Grosss new study takes on
this issue under the title Carl Schmitt und die Juden: Eine deutsche Rechtslehre
(Carl Schmitt and the Jews: A German doctrine of law). Gross argues that
Schmitt did not work with the Nazis because he was an opportunist; he threw
himself into the work of transforming law under Hitler, rather, because he
fundamentally agreed with the core Nazi goal of attacking Jews. Antisemitism,
far from being a momentary manifestation of Schmitts accommodation to the
46
Matthias Weimayr, Carl SchmittSprache der Krise, Krise der Sprache, in Gegen den
Ausnahmezustand, ed. Pircher, 5384. See also the careful analysis in Jan Muller, Carl Schmitts
Method: Between Ideology, Demonology, and Myth, Journal of Political Ideologies 4 (1999):
6185.
new regime, runs like a red thread through his work. Grosss book is intended
to be provocative, and it has been received as such in the Federal Republic,
where it garnered harsh criticism as well as enthusiastic endorsement.
47
Gross makes concrete Meiers abstract argument about the basis of Schmitts
argument in revelation. Revelation for Meier was part of a deep argument about
the lack of foundations in political philosophy. For Gross, revelation is the
point at which all sorts of undefended (and indefensible) prejudices and ste-
reotypes, modern as well as traditional, enter Schmitts work. The method is,
in a way, simple: take Schmitt at his word. When Schmitt utters antisemitic
phrases, Gross examines them for their content. He does not ask how they
would further Schmitts political project or career, nor does he pursue their
place in a momentary strategy. According to Gross, antisemitism itself is the
content of Schmitts antisemitic utterances. Antisemitism informs three central
motifs in Schmitts work: his critique of abstract law (Gesetz) and legal pos-
itivism; his search for conspiracy and betrayal in history; and his connection
of law and geographical placethat is, soil (Boden).
Throughout his career, Schmitt criticized legal positivism, the notion that
the essence of law is to be found within the laws themselves rather than in an
external sourcea statute is the product of a formal process, not of substantive
notions of justice or order. In Schmitts worldview, according to Gross, abstract
law related to debates about citizenship in the nineteenth centuryand about
Jewish emancipation. Bruno Bauers arguments against Jewish citizenship
played a key role for Schmitt, Gross claims. Bauer, like Schmitt, was deeply
distrustful of universalism. He connected legal (and moral) universalism with
Jewish theology, which he criticized as a religion of utter transcendence that
reduced its subjects to white negroes under an unquestioned law. Jews as
Jews, according to Bauer, could not be human since their law was both utterly
abstract and particular: it lacked the universalism and the concreteness of
Christianity (Gross, 21112). Gross argues that Schmitt followed a set of
associations (abstraction, law, Judaism) that ultimately led to his hatred of Hans
Kelsen: a converted Jew, a liberal with Social Democratic leanings, a consti-
tutionalist, and the most important theorist of legal positivism in the twentieth
century. Kelsens use of the story of Pontius Pilate to illustrate the lack of
absolute truths in democracy must have been anathema to Schmitt according
to Gross (240). The story has long served, of course, as evidence that the Jews
killed Jesus. Schmitts response, Gross notes, was not to address the story itself
but to assert an absolute truth: Jesus is the Christ, the savior (23941). Kelsens
relativism, according to Schmitt, blinds him to truth (revelation) and trans-
forms him into a bureaucrat who can serve any regime (257). Abstract law
47
Among the positive reviews: Ulrike Herrmann, Der Jude als Feind, Die Tageszeitung, Feb.
27, 2001, 16; and H. Kittsteiner, Das entdeckte Arcanum, Neue Zurcher Zeitung, Aug. 2, 2000.
Among the negative: Thomas Wirtz, Ein Fall von reiner Rechtsleere, Frankfurter Allgemeine
Zeitung, July 31, 2000. The most extreme reaction is that of Gunter Maschke, Der subventionierte
Amoklauf, Junge Freiheit, Oct. 20, 2000, a review whose occasionally insightful criticisms are
rendered untrustworthy by the nal line: Ein jiddisches Sprichwort weiss es noch: Gott bewahre
uns vor der judischer Chuzpe, judischen Maulern und judischem Kopfchen.
378 Caldwell
means control by technical rules that are politically and morally neutralrules
associated in Schmitts mind with the emancipated Jew, Kelsen. In short, a
string of associations lends Schmitts criticism of legal positivism its force:
positivism means Kelsen, Kelsen is Jewish, Judaism rejects the revelation of
Jesus. Grosss arguments are sometimes more intuitive than veriable. But
they gain power in the context of Schmitts attacks against the Jew Kelsen
in 1936 (Gross, 129) and the glowing references to Bauer in Schmitts letters
and his posthumous Glossarium.
48
For Schmitt, deceit lay at the heart of assimilation. The deception lay in the
Jews use of universalistic rhetoric to further their particular interests, as
Schmitt would have it. Friedrich Julius Stahl, whose doctrine of monarchical
power reconstituted conservative legal theory in the age of constitutionalism
and pregured Schmitts own work, in fact had furthered Jewish goals by
undermining state power, according to the Nazi-era Schmitt: Stahl was part of
an un-German system (Gross, 11819, 283). Spinoza accelerated the dis-
tinction between internal and external, public and private; these distinctions
led to liberalism and the decline of political order, from which Jews would
prot (282). The assimilated Jew in Schmitts Nazi-era work operated within
the framework of equal rights to further Jewish interests. As Schmitt wrote in
1947, two years after the end of Nazism, It is precisely the assimilated Jew
who is the true enemy
49
(see Gross, 312).
The antisemitic tradition had long held that Jews lacked connection to the
soil. This notion of the soil encompassed agricultural labor, the Christian
community, and the nation. According to Gross, Schmitt made use of this
stereotype as well. The connection became manifest in 1934, when Schmitt
declared the bankruptcy of general ideas in lawand at the same time declared
that all lands and people seek to return to their own soil, to their own blood
and to the natural orders that spring from blood and soil, and to free themselves
from the articial superstructures of general ideas (Schmitt, quoted in Gross,
75). The criticism of general ideas ts with a general critique of abstraction
and reason, but, Gross argues, in Schmitts case it also referred to a larger
antisemitic project: the idea of a concrete order of the Volk, an idea borrowed
from the racist ideas of Protestant German Christians (8385). Gross pro-
poses, in short, a radical rethinking of Schmitts basic categories in light of
the revelation of his true enemy, the universalizing, conspiratorial, rootless
Jew.
No doubts can remain after Grosss study that antisemitismwas an important
part of Schmitts world. The depth of his belief is surprising, even shocking,
as in the poem he wrote after 1945 declaring that the Jews were the victors of
World War II and that only Isra-Elites remain in the global order (quoted in
48
See Schmitt, Glossarium, 9, 22, 37, 62, 93, 97, 150, 175, 189, 192. For a similar style of
argumentation, see Nicolaus Sombart, Die deutschen Manner und ihre Feinde: Carl Schmittein
deutsches Schicksal zwischen Mannerbund und Matriarchatsmythos (Munich, 1991); Grosss
work, however, is more carefully argued and documented.
49
Schmitt, Glossarium, 18.
Gross, 371). Still, is antisemitism in fact the key to all of Schmitt? Grosss
sources showing Schmitts antisemitism before 1933, for example, are sparse;
he relies to a great extent on demonstrating the continuities in Schmitts criti-
cism of abstract law and defense of the concrete orders of nations.
50
He notes
that Schmitts own career would have been at stake had he been so crude as
to state his antisemitism openly before 1933 (3234). This argument in itself
is not satisfying. But, at the same time, Schmitt was an author who concealed
his arcanum (299)and soon after Hitler took power Schmitt found it easy
to make antisemitism central to his work. After the fall of the Nazis, as noted
above, he still viewed Jews as the true enemy. Gross makes a strong prima
facie case that Schmitts arcanum was not an intellectually well-conceived,
deeply Christian truth but an opening into which prejudices owed, a point of
intellectual passivity.
Other writers claim that Schmitts Nazi-era work offers timely alternatives
to the inebriating consensus on issues related to war, peace, and globalization
(Balakrishnan, 261). Felix Blindow develops this argument in Carl Schmitts
Reichsordnung: Strategie fur einen europaischen Grossraum (Carl Schmitts
imperial order: Strategy for a greater European realm). While he notes that
Nazi ideology is hard to pin down, he also asserts that it must be volkisch
that is, a combination of biological racism, populism, and nationalism (10).
Schmitt, he argues, was neither volkisch nor a biological racist; Schmitt co-
operated with the Nazis with a euphoric, political will to shape the new
regime (11). He ran into trouble in 1936 not as a result of the machinations of
other ideological entrepreneurs under Nazism, as Blasius, Gross, and others
have argued, but because of his defense of the total state and his attempt to
reduce the party to a mere blood donor for an anemic state (39). Blindow
claims that Schmitt faced the choice of emigration or concentration camp in
1936 (46), but this is exaggerated: neither Schmitt nor his protectors, Hans
Frank and Hermann Goring, faced punishment. Moreover, Blindow views it
as paradoxical that Schmitt lost his place as domestic theorist and yet re-
mained important in discussions of international law (47); but if 1936 in fact
did not represent a grave threat to Schmitts position as a scholar and as a
human being, as Blindow claims, then there is no paradox. Indeed, Schmitts
turn to international law corresponded with the radicalization of the Nazi state
and its orientation outward.
After 1938, Blindow argues, Schmitt began to explore a new kind of inter-
national order no longer based on the sovereign state. The Monroe Doctrine
served as Schmitts model: just as the United States excluded foreign control
from the Western Hemisphere, so other empires should exercise hegemony over
their areas. Schmitt clearly denied the right of Britain and the United States
to guarantee Czechoslovakias existence. Blindow suggests that Schmitts early
50
The publication of Carl Schmitts early diaries (which appeared too late for inclusion in this
article) supports Grosss position, however. See Grosss review of Carl Schmitt, Tagebucher:
Oktober 1912 bis Februar 1915, ed. Ernst Husmert (Berlin, 2003), Ob das mit meinemjudischen
Komplex zusammenhangt? Frankfurter Rundschau, May 4, 2004.
380 Caldwell
theory of the great realm or great space in international law was really
meant as a statement of principle rather than as a propagandistic justication
for Hitlers actions and that it was not the same as the racist doctrine of
Lebensraum (86), but he does not show how the doctrines differed, except
insofar as race played a less important role in Schmitts work.
Blindows is a polemical work in defense of Schmitt. His arguments strain
credulity. Schmitts reference to the Monroe Doctrine at a time when war was
on the horizon served a clear propagandist purpose: what you, the potential
enemy, have done, we may now do. As William Scheuerman has argued,
Schmitts problem was how to justify a policy to a community of nations not
(yet) at war while at the same time taking into account the radical particularity
in Germany of Nazi ideology.
51
External propaganda and internal propaganda
were at odds, but both were propagandain different contexts. Finally,
Schmitts references to the Nomos of a Volk, a concrete people with ties to the
soil, continue in this period. Concepts such as blood, soil, and Volk were too
vague in Nazi rhetoric to allow for real dispute. Blindow asserts a fundamental
distinction between Hitlers greater German Reich and Schmitts great or-
dering of space (109): Schmitt was interested only in a revision of the
Treaty of Versailles and in asserting German hegemony in parts of Europe,
while Hitler was concerned with racial purity and Lebensraum. In practice, the
line between the two agendas is blurry. Either could involve the transfer of
ethnic populations and massive violence. Blindow remains too focused on
defending the abstract legal concepts to address what has become common
knowledge among historians: the massive violence of World War II was the
product of a number of intersecting ideologies and politics and was not re-
ducible to Hitler.
In the end, Blindow nds in Schmitt a prescient critic of globalization,
someone who rejected the hegemonic demands of Western culture carried out
in the name of development and human rights: The empty rhetoric of Western
states about human rights, which expresses itself in such stupid and impudent
formulas of deception as the critical dialogue, cannot conceal that in the end
only one thing is decisive: business (167). Balakrishnan draws a similar con-
nection, although with more care, praising Schmitts skepticism about inter-
national law while referring to the squalid motives of US and NATO power
projection in Kosovo that were covered up by the rhetoric of human rights
and the just war (26667). In short, the reader is to see Schmitt as a provocative
antiglobalist who happened to produce work justifying Hitlers adventurism.
Balakrishnan and Blindow have rediscovered the anti-imperialist rhetoric of
the Nazi empire and adopted it as their own, an enterprise of questionable
value.
Catherina Zakravsky, who has also examined Schmitts Nazi-era work on
international law, reaches a different conclusion. She nds in it little more than
apologetics. She dismisses globalization critics use of Schmitt as an injection
51
See William Scheuerman, Carl Schmitt: The End of Law (Oxford, 1999), 14173.
of adrenaline for a tired social criticism.
52
As she notes, Schmitt blamed the
United States and Britain in advance for World War II, and his rejection of
universalistic laws also underlay his afrmation of the Nuremberg Laws.
53
Schmitts Nazi-era work may well contain insightsbut they are embedded
within an antisemitic and apologetic package.
IV. AFTER 1945: VICTIM, PROPHET, OR RELIC?
Carl Schmitts connection to the worst crimes of the Nazi regime was tangen-
tial at best. Hitler may have borrowed Schmitts reference to the Monroe Doc-
trine in 1939, but Schmitt had no substantial impact on policies during the
war. Although by the end of the war he had become disillusioned with Nazism,
he offered no resistance of any kind to the regime. However, many emigres in
the West, who remembered Schmitts reputation or who had even studied with
him before 1933, were appalled at the apologies he had offered for Nazism. It
is no surprise, therefore, that Schmitt was arrested, rst by the Soviets in the
initial months of the occupation and then by the United States on September
26, 1945, as the Allies sought to smash the Nazi Party and German militarism.
Schmitts release on October 10, 1946, reected the Allies attempt to back
out of its costly occupation and, more generally, the Allies nding that Schmitt
was not directly involved with crimes of war or crimes against humanity
(Quaritsch, 12).
More surprising, however, was Schmitts third arrest, on March 19, 1947.
He was brought to Nuremberg for interrogation by the leftist lawyer and emigre
Robert Kempner. The conservative lawyer Helmut Quaritsch, who was part of
Schmitts intellectual circle beginning in the 1950s and has published some of
the most important new work on Schmitt, has gathered all extant materials
from Schmitts time in Nuremberg (much of it previously published) and
sought to reconstruct what happened.
54
If Kempner seriously contemplated
trying Schmitt for poisoning youths minds and preparing them for war and
genocide, then he did a bad job at Nuremberg, as Quaritsch shows. In his
interviews, Kempner seems unaware of Schmitts crudely antisemitic and apol-
ogetic writings from 1933 to 1936 (Quaritsch, 26). Kempners aim, Quaritsch
concludes, was to recruit Schmitt as an expert witness against those members
of the traditional state apparatus who served Hitler, in particular the leaders of
the Reich Chancellery (2425). That effort failed. The value for this review
of those interviews lies in another area: they provide insight into the ways
Schmitt explained his public utterances after the dictatorship had been deposed.
The interviews were not private, but they were not public either; they were
52
See Catherina Zakravsky, Politische Mythologie des letzten Krieges als Volkerrechtswis-
senschaft, in Gegen den Ausnahmezustand, ed. Pircher, 179.
53
Ibid., 200.
54
See Quaritschs indispensable essay collection, Complexio oppositorum: U
ber Carl Schmitt

(Berlin, 1988).
382 Caldwell
not intended for publication. As a result, some of Schmitts rare examples of
explicit self-justication appear in the transcripts.
Schmitt explained his Nazi-era writings, including the work on the Gross-
raum, as attempts at a diagnosis rather than as work toward a particular goal
(Quaritsch, 53). In other words, he took refuge in the claim of pure science.
That claim was easily falsiable by some of Schmitts own writings. Kempner
cited a passage from 1939, for example, that stated that Jews could not com-
prehend a theory of space (Raumtheorie) since they were made differently
(anders geschaffen); instead, the quotation continued, they contributed to the
dissolution of the concrete, spatially determined order.
55
Kempner then asked
Schmitt whether that quotation did or did not betray the purest Goebbels
style. In reply, Schmitt maintained that the statement was no more than a
scholarly thesis (quoted in Quaritsch, 5455). Quaritsch, despite his alle-
giances to Schmitt, is honest: Schmitts Nazi-era statements about Jews were
crude outbursts of political hate (125).
The claim of pure science was not sufcient. Schmitt added a second claim:
he was an intellectual adventurer who took ideas to their logical conclusion
without concern about effect. Schmitt seemed aware in the interview of the
limits to this explanation. When Kempner noted that such a search for knowl-
edge may have ended in the murder of millions, Schmitt announced that
Christendom also ended in the murder of millions of people (qtd. in Quar-
itsch, 60). One can understand such movements, he continued, only if one has
been part of thema breathtaking rejection of scholarly evaluations of Nazism
by non-Nazis. In the process of the no doubt painful conversation about his
past, Schmitt gradually abandoned his claim to pure science and relativized
Nazism by comparing it with Christianity. The interview was conducted by a
German who had ed into exile; Schmitt argued that Kempner could not, in
the end, understand Nazism since he had left.
In his third interview with Kempner, Schmitt began to speak more critically
about his actions. He admitted that he had misjudged Hitler and that he had
felt himself intellectually superior to Hitler and hoped to give Nazisms empty
phrases real content in the years 193336 (Quaritsch, 65). The statement be-
trays a na vete about Nazism that is surprising from an expert on dictatorship.
His claim that a qualitative distinction existed between his idea of Grossraum
and Hitlers biological notion of Lebensraum seems likewise naiveand in-
sincere. Such theoretical subtleties were of limited value to the Nazis. Fur-
thermore, Schmitts own attack on Jewish converts to Christianity raises ques-
tions about his own acceptance of a racial logic, a point that Quaritsch does
not bring up.
It is true, as Quaritsch notes, that Schmitt was defending himself against
charges in these interrogations and that it would be surprising in such a context
to see him act as a witness for the prosecution (115). Quaritsch also notes,
55
Robert Kempner, Volkerrechtliche Grossraumordnung mit Interventionsverbot fur raum-
fremde Machte: Ein Beitrag zum Reichsbegriff im Volkerrecht, in Carl Schmitt, Staat, Gross-
raum, Nomos: Arbeiten aus den Jahren 19161969, ed. Gunter Maschke (Berlin, 1995), 31718.
however, that others, such as Ernst Forsthoff, broke more clearly and com-
pletely with Nazism (11516). Schmitts statements provide a template of
justications given by collaborators after the war. Where no justication was
given, there came silence; about his more obnoxious writings Schmitt said to
Kempner only: There is nothing to talk about (quoted in Quaritsch, 66).
Schmitt kept his silence the rest of his life. It was broken by the posthumous
Glossarium, replete with anti-Jewish affect and resentment against the Allies.
Along with the apologetics, Schmitts intellectual energy comes through in
the documents as well. He raises interesting questions about the connection
between an intellectuals ideas and their effect and about what the limits are
to legal and moral responsibilityquestions that point beyond his specic
situation to more general issues about the intellectual in politics (Quaritsch,
89). When asked to comment on the role of the conservative State Chancellery
under Hitler, Schmitt provided a brief but stimulating discussion on the way
personal rule and access to the leader changed in the transition fromabsolutism
to the modern dictatorship (9394). In one of his most interesting formula-
tions, Schmitt noted that all efforts to save the traditional, bureaucratic state
from Hitlers destructive power merely delivered the organs of the state into
Hitlers hands (96). These documents show what would prove attractive to so
many people over the next four decades. For Schmitt never retreated fully into
the security of silence, a phrase that Kempner recalls from the meetings with
Schmitt (quoted in Quaritsch, 46). His silences were strategic. He never spoke
of his interrogation, but he did speak of a great number of other matters with
hundreds of individuals, young and old. As Dirk van Laak showed a decade
ago, Schmitt thereby gained a good number of adepts, from all parts of the
political spectrum.
Van Laaks book has appeared in a second, unchanged edition, and it re-
mains essential as a description of a new pattern of communication and dis-
cussion that formed around Schmitt and others on the right in the Federal
Republic. In West Germany Schmitt came to represent a series of compro-
misedin their own view, demonizedintellectuals who had been on the
political right in Weimar and had collaborated with the Nazis after 1933.
Schmitt was known precisely because of his past, not in spite of it. He was
seen and admired as a prophet of instability and crisis in a new polity that
stressed stability. No wonder, then, that young lawyers interested in democracy
as a challenge consulted Schmitts work. They did so, furthermore, outside of
the normal curriculum at the universities, where Schmitt played a limited role
at best (van Laak, 187).
The Federal Republic was obsessed with the idea of the public: public
discussion, public information, the public character of politicians (van Laak,
6869). Schmitt opted out of open, public discussions. Like other intellectuals
on the right implicated in Nazism, such as Martin Heidegger, Gottfried Benn,
and Hans Freyer, he retreated into a pessimistic worldview. The world of the
mass man, technology, and mass communications threatened both to oppress
humanity and to obscure the dangerous essence of the human being. Schmitt
did not strive to create a moral, public character, in van Laaks term, with
384 Caldwell
its implication of a positive, rational, whole man at its core; he presented
himself as a personality, consciously employing tact and reserve. The ba-
roque notion of the elite served as a model for Schmitts presentation of self
in the world, as it did for his writing style (53, 10615). Schmitts reserve
contributed to his reputation: he was the intellectual aristocrat for whom the
discussion of personal failings was beneath ones dignity. Conversations en-
sued at a different level. Discussion groups formed inside and outside univer-
sitiesby invitation. Schmitts home in Plettenberg became a kind of pilgrim-
age site for conversation partners young and old (13536).
Schmitts conversations in the security of silence were part of his new
public persona. He cast himself as one with deeper knowledge of the abyss.
He rejected retroactive justice and the laws pursuit of the individuals respon-
sible for Nazism; instead, he called for respect for the rule of law and the
responsibility of the state as a whole, not those who worked within it (van
Laak, 7374). He made no mention of his role in destroying the rule of law
under the Nazis. Instead, he portrayed himself as one who had advocated one
kind of dictatorship in order to avoid a far worse kind (7678). As he noted
in a letter to Armin Mohler, The total state is a most liberal affair in com-
parison with the total party.
56
Schmitt dedicated a major collection of his work
to Johannes Popitz, executed by Hitler, thereby implying some proximity to
the resistance (79). He warned of the potentially totalitarian aspect of universal
morality in law (81) and portrayed himself as the Cassandra of the Federal
Republic. Most striking in van Laaks description is the way Schmitts circle
turned Schmitts German and Nazi experience into an asset: the Germans, as
a defeated power, had special insight that others (and the obvious reference
here was to Americans) lacked (104). National Socialism became a case of
too much Enlightenment, too much rationalism (105).
Schmitts arcanum, for van Laak, does not have specic content. It was a
form, a method of self-presentation that involved gestures, insinuations, selec-
tive citations, conscious lack of citations, and exaggerated historical narratives,
all of which evoked a club of those in the know (85). Such a method of
presentation is, of course, resistant to criticism. As in his Weimar-era writings,
Schmitt was still hard to pin downand therefore fascinating. Van Laak is
less interested in the content of Schmitts work: indeed, he brackets out the
content in order to focus on Schmitts self-presentation and on the huge number
of scholars in multiple disciplines, with politics ranging from far left to mod-
erate to far right, who entered into conversation with Schmitt. By the end of
the book, one is hard-pressed to name with any precision the basic tenets that
would constitute a Schmitt school in West Germany.
57
Van Laaks task was to record how a number of German intellectuals inter-
acted with Schmitt and his legacy. Christoph Mollers has a different aim: he
56
Schmitt, quoted in Pircher, Das vielarmige Ungeheuer des NehmensU
ber das Politische

der O
konomie, in Gegen den Ausnahmezustand, ed. Pircher, 226n.

57
Filling this gap is Jan-Werner Muller, A Dangerous Mind: Carl Schmitt in Post-War European
Thought (New Haven, CT, 2003), which appeared too late for inclusion in this article.
investigates the role of Schmitts thought (and that of other Weimar-era law-
yers) in constitutional law in the Federal Republic. His work differs from that
of the other authors discussed in this review. Its concern is neither primarily
Schmitt nor primarily theory: it is how law actually works in practice. Moll-
erss underlying question is whether the concept of the state as developed by
the classic gures of German constitutional law in the 1920s (Schmitt, Kel-
sen, Rudolf Smend, and Hermann Heller) has any useful function in law. With
a few exceptions, he concludes, it does not.
Mollerss argument goes to the heart of Schmitts legacy. He concludes that
Schmitt was far less an innovator than his followersand Schmitt himself
suggest. His state theory and assumption of a real unity of the people prior to
law was in fact the dominant conservative approach in the empire (Mollers,
6163, 124). Schmitts innovation lay in pushing the idea of a primordial state
unity to the point that one representative of the unied state, the president,
was virtually unlimited by law: a general presumption for the constitutionality
of executive actions (7275).
The relevance of Schmitt to the constitutional law of the Federal Republic
is limited at best, according to Mollers. Schmitt argued that a constitutional
courts review of legislation and executive acts was historically outmoded and
politically impossible; the Basic Law created the Constitutional Court (the
Bundesverfassungsgericht) with broad powers that contributed to the stability
and legitimacy of the state. Schmitt further argued that a strong leader, inde-
pendent of parties but claiming to represent the whole people, was a funda-
mental part of democracy, whereas the president of the Federal Republic was
weak, and the chancellor was leader of a party. The constitution asserts that
certain basic rights are inviolable, even by a two-thirds legislative majority,
which seems to correspond to Schmitts doctrine of the basic decision in the
Weimar Republic. But Schmitts basic decision existed prior to and outside of
the law, while article 79 makes the point in positive law, and form matters in
this instance (66n).
58
The framers of the Basic Law, like its best interpreters,
knew Schmitt as an earlier commentator on democratic constitutionalism, but
that does not make the Basic Law a Schmittian document or Schmitt the
father of the fathers of the constitution, as has at times been claimed (see
van Laak, 15764).
59
Mollers concludes that Schmitt has contributed mainly a historical under-
standing to law. The state is a historical phenomenon for Schmitt, appearing
at a specic moment in history to claim for itself a monopoly over power and
violence; like all historical phenomena, it also has an end, and it enters into
decline as parties and interests occupy it for their own purposes. By rejecting
a transhistorical notion of the state, Schmitt casts into doubt abstract, univer-
salizing conceptions of politics. But Mollers questions whether Schmitts no-
tion of the state actually corresponds to historical reality. After decades of
58
See also van Ooyen, Der Staat der Moderne, 130 n. 488.
59
See also Bernhard Schlink, Why Carl Schmitt? in Rechtshistorisches Journal 10 (1991):
16064.
386 Caldwell
social historians work breaking apart the notion of the absolutist state, the
answer is clearly no. The state never had a monopoly over power, and social
groups always made use of the state for their own aims (21920). Indeed,
Schmitts concept of the state and politics is extreme, and extreme formulas
provoke concepts of decline (252). The state in reality is a compendium of
laws and guidelines for a multiplicity of actors; its unity exists only in the
mind (42122). Schmitts role in the Federal Republic has been, therefore, to
keep a myth of the state alive, on the basis of unarticulated assumptions and
unexamined historical assertions.
V. SCHMITTS STYLE AND SCHMITTS SECRET
A good many German lawyers, including some who have served on the Bun-
desverfassungsgericht (the Constitutional Court), might well take issue with
Mollerss judgment. None, including Mollers, would question Schmitts im-
portance for German political thought (and ideology) in the twentieth century.
It is notable, however, how few of the English-language works examined here
involve extensive knowledge of Schmitts intellectual context in law and poli-
tics. English-language work has tended to focus on Schmitt alone, neglecting
the complex positions that make up Germanys rich constitutional heritage.
One hopes that a new collection of Weimar-era legal work, not under review
in the present essay, will begin to change this state of affairs.
60
Moreover, it is
unclear why the English-language literature (including work by those claiming
to be on the left) has failed to treat Schmitts antipode, Hans Kelsen, who was
both a challenging theorist and a democrat, with the same attention to theo-
retical subtlety and historical detail as it has Schmitt.
61
Schmitts signicance goes beyond law, of course. Schmitt was an intellec-
tual in Germanys horrendous century, and the increasing focus on his style
and his arcana contributes to the more general intellectual history of Europe.
Schmitt exemplies a style in European thought that moves immediate, prac-
tical questions to the level of historical speculation. World War II becomes a
part of the grand, mythic battle between Land and Sea; the development of
welfare law becomes part of a transition to the Total State. Schmitt is part of
a tradition of such speculation, which includes gures like James Burnham
and Antonio Negri. Like Schmitt, they pose questions about the direction of
capitalist development and the viability of liberal progress, often on the basis
of great abstraction, and are by their very nature not susceptible to analysis
and falsication. Giorgio Agambens recent Homo Sacer, which uses Schmit-
tian categories to declare that the concentration camp is the fundamental
biopolitical paradigm of the West, is only the most recent example of the
60
See Arthur J. Jacobson and Bernhard Schlink, eds., Weimar: A Jurisprudence of Crisis
(Berkeley, 2000).
61
Examples of such work in German: van Ooyen, Der Staat der Moderne; and Horst Dreier,
Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen (Baden-Baden, 1986).
overblown rhetoric of this tradition.
62
The analyses of Schmitt by van Laak,
Weimayr, and Gross may point the way toward a new history and critique of
this tradition.
Connected with the search for the key to history is the idea of the arcana.
One of the most important developments of Schmitt scholarship over the last
decade has been opening up the unexplained, insinuated, and gestured-at to
examination. Whether Schmitts secret was the strong state, a radical rejection
of political philosophy, or unexamined prejudices such as antisemitism that
fall under the category of revelation, analysis of his style of writing has
revealed important aspects of his thought. So has analysis of its function: to
conceal what might otherwise seem trite and to evade the demand for open
argumentation and exposure to criticism. Here, too, opens an entire cultural
arena: the unsaid as part of a strategic decision that adds a sense of the sacred
to everyday life.
What Schmitts real message is remains disputed. Fifty years after the rst
reections on his work began to appear, his interpreters still battle over whether
he was primarily a brilliant lawyer and theorist of constitutional democracy or
a gravedigger of democracy and apologist for authoritarianism; an intellectual
adventurer and opportunist or a serious analyst of modernity; a conservative
trying to save what could be saved of the European heritage or an antisemite
and Nazi.
62
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen
(Stanford, CA, 1998).

CALDWELL - Controversies Over Carl Schmitt. A Review of Recent Literature

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Controversies over Carl Schmitt: A Review of Recent Literature

ber Carl Schmitt den Romer und Katholiken

ber Carl Schmitt

ber das Politische

konomie, in Gegen den Ausnahmezustand, ed. Pircher, 226n.

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