Critical Legal Theorys Turn to Schmitt: Not Waving

but Drowning?
Amanda Loumansky
Published online: 17 March 2013
Springer Science+Business Media Dordrecht 2013
Abstract I examine the current enthusiasm among some academics, whom I shall
broadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which
has at times been accompanied by disenchantment with Emmanuel Levinass ethical
insights. I examine the reasons for this turn to Schmitt which I attribute to the
sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to
a disengaged and irrelevant discourse. I contrast their antithetical approaches
through their conceptions of the Other (which in Schmitts case is developed
through his friend and enemy distinction) and explain how, together with state of
exception theory; it has appeared to some CL theorists to offer a platform for
exposing the liberal democratic attempt to export human rights as a violent impe-
rialising mission. I argue that Schmitts thinking represents an intellectual cul-de-
sac and that Levinas continues to offer a more rewarding model of critique.
Keywords Levinas Schmitt Human rights National socialism
Nobody heard him,
the dead man,
But still he lay moaning:
I was much further out than you thought
And not waving but drowning.
The title is drawn from Stevie Smiths poem Not Waving but Drowning (1957) Deutsch.
I use the term CLT loosely here to include academics who might reject its application to themselves.
For the purpose of this article I am applying it to academics who go beyond the black letter of law or
traditional texts relating to their discipline to locate narratives that offer challenging perspectives to
traditional discourses.
A. Loumansky (&)
The Law School, University of Middlesex, The Burroughs, London NW4 4BT, UK
e-mail: a.loumansky@mdx.ac.uk
1 3
Liverpool Law Rev (2013) 34:116
DOI 10.1007/s10991-013-9126-z
Poor chap, he always loved larking
and now hes dead
It must have been too cold for him his heart gave way,
They said.
Oh, no no no, it was too cold always
(Still the dead one lay moaning)
I was much too far out all my life
And not waving but drowning.
I use the poems subject, the drowning man, as a metaphor for Critical Legal
Theorys turn to the work of Carl Schmitt. I argue that it is now out of its depth
and oundering in a sea of uncertainty. Dead perhaps because of the tendency
for deconstructive play which meant that no-one could take it seriously when
it ran into trouble and was drowned by its irreconcilable contradictions. Poor
chap, he always loved larking/And now hes dead.
Introduction
This article addresses concerns I have about CLTs turn to the political thinking of
Schmitt, particularly in the studies of international relations. Such a move places it
in danger of becoming incoherent in its attempt to critique intellectual liberal
orthodoxy. At rst this may appear a paradoxical statement to make as there is a
view, long maintained that incoherence is CLTs stock in trade and that the
discourse is one that is essentially negative and disruptive. This is exemplied by
the theory and practice of deconstruction, acknowledged by Derrida, to be an
inherently parasitical undertaking. Indeed, Chandler has gone so far as to suggest
that the resort of CLT to Schmitt may be their last refuge as there is nowhere to turn
to after this. For Chandler this can be attributed to the weakness and defensiveness
of critical theoretical positions themselves.
1
This argument has some force given the tendency of some to fall under the
inuence of Schmitt. The apparent decline of interest in Levinas, accompanied by
gravitation towards Schmitt, appears to be a reection of a crisis of condence.
Indeed the progress of Douzinas, who has been hugely inuential in introducing and
developing postmodern jurisprudence, a genre that includes CLT, has been charted
by Bowring who notes that Douzinas moves from an enthusiastic reception of
postmodernism expressed in earlier writings in which he has applied the ideas of
Derrida and Levinas to his later works where Levinas has almost vanished (and)
(t)his time the focus is Carl Schmitt.
2
In this article I explain why the current vogue for Schmitt is a false trail for CLT
which is always at its best as an interloping outsider; better at the task of asking
questions and getting under the skin of the prevailing narratives and their condent
assertions rather than supplying the answers. My focus will be on the urgency of
1
Chandler (2008, p. 30).
2
Bowring (2008, p. 132).
2 A. Loumansky
1 3
formulating a response to the push by the West to export liberal democratic values
by insisting that they have universal application. These are not values that command
uncritical allegiance but the deprecation that emanates from a sympathetic and
idealistic reading of Schmitt is a liaison dangereuse brought about by the urgent
desire to expose an impetus within liberal democracies towards conict. Schmitts
views invite disenchantment with human rights and are used to bolster the complaint
that rights are little more than a mask to conceal the cause of neo-imperialism and to
assert global dominance and the control of strategic resources. To this end they are
held to be a cruel deception and in the view of Douzinas, quoting Wendy Brown,
(with evident approval), may well be one of the cruellest social objects of desire
dangled above those who lack them.
3
The implication appears to be that the bliss of ignorance should not be disturbed.
Castellino takes Douzinas to task for his assertion that legal attempts to codify and
implement human rights, such as the Human Rights Act (1998) have generated a set of
rules with no soul. As he declares, to viewall human rights globally through this lens
is simply unfair. Rights he insists have been delivered under the auspices of liberal
democracy and they mean something: The sheer number of newconstitutions that have
come intoexistence over the twoprevious decades all givingprominence toideas related
to human rights, suggest that values are likely to endure into the future.
4
The traducing of human rights runs the very real risk of losing the message so
that the impression is created that rights do more harm than good; a conclusion that
merely opens the door to tyranny. For example Aradau and Munster assert that
There is value in engaging with Schmitts theory of the exception which has been
revived and hotly debated in IR, particularly in the context of Giorgiou Agambens
reformulations of the political implications of exceptionalism.
5
This path fails to expose liberal democracys betrayal of human rights but instead
calls into question the value and appropriateness of human rights themselves. The
adoption of Schmitt as a tool of critique offers little fresh insight on this issue but which,
despite Agambens best endeavours, invariablyleads its advocates into downplayingthe
value of rights. This contrasts with the traditional Marxist position that views the Wests
advocacy of rights as a cynical means of subjugating the developing world through
subterfuge to serve the interests of the neo-imperialist enterprise that seeks to plunder its
resources. To this aporia, Levinass ethical thinking can offer little by way of a solution
as it lacks any grounded analysis of the political world. Nevertheless, I believe that while
attempts to reconcile Levinass ethics to the world of the political, his interventions,
while lacking the framework of a disciplined school of thought accompanied by the
attendant rigour that one looks for in such debates, provide, nevertheless, a moral anchor
by which the conduct of the West can be called to conscience. As Castellino reminds us
it has famously been said that democracy can be imported, never exported.
6
A
reection on the thinking of Levinas bears this out.
3
Douzinas (2002, p. 371).
4
Castellino (2009, p. 94).
5
Aradau and Munster (2009, p. 686).
6
One explanation for the failure of democracy to take root in certain regions is provided by Humphrey
Hawskley: poverty, ethnic and religious differences, corruption, land disputes and venal leaders make
Critical Legal Theorys Turn to Schmitt 3
1 3
Schmitt and Levinas: The Separation of the Political and the Ethical
As Derrida observes Carl Schmitt is, in terms of his thinking, almost the complete
antithesis of Levinas as
Schmitt is not only a thinker of hostility (and not of hospitality); he not only
situates the enemy at the centre of a politics that is irreducible to the ethical, if
not the juridical. He is also by his own admission, a sort of Catholic neo-
Hegelian who has an essential need to adhere to a thought of totality. This
discourse of the enemy as the discourse of totality, so to speak, would thus
embody for Levinas the absolute adversary.
7
To understand this degree of polar separation it is necessary to appreciate
precisely what lies at its heart. Schmitt, as was Machiavelli, is concerned rst and
foremost with the art of governance and the need to assert political authority
virtually to the exclusion of any other consideration. This is precisely what leant his
thinking to that of the Nazi regime for whom power was everything. To this end it is
clear that Schmitt is not in the least concerned with causes and the degree to which
they can be asserted to be moral. All is relegated to the political dynamic; the duty
of the sovereign to ensure the survival of the political entity. The grouping with
which Schmitt is concerned is a specic entity, the state which
according to modern linguistic usageis the political status of an organised
people into an enclosed territorial unit.
8
Schmitt formulated this Hobbesian perspective in response to Germanys defeat
in WW1. Thus, the formation of groups, more specically entities such as nation
states, is the natural and inevitable culmination of a process which is
a denition of the political (that) can be obtained only by discovering and
dening the specic political categories.
9
The key to unlocking German weakness following WW1 was to understand and
acknowledge the reality of power and how it was constituted. For Schmitt the
fundamental question is how does a state, as the decisive political entity, acquire
the strength that it will need to cope with external threats? To the state belongs
the possibility of waging war and thereby publicly disposing of the lives of
men.
10
Footnote 6 continued
full electoral democracy a very risky system for some societies. (2009:379). If that is the case the
objection to exporting Democracy would be on account of its destabilising effect which opens up the
prospect of more, rather than less, conict.
7
Derrida (1999, p. 147).
8
Schmitt (2007, p. 19).
9
Supra. n.10 at 25.
10
Supra n.10 at 46.
4 A. Loumansky
1 3
In so far as there are any ethical considerations these are to be based on the needs,
lives and livelihood of the people to be protected and for there to be order and social
cohesion of which the state is the sole guarantor. To secure peace at its borders the
state must ensure harmony within; for as long as the state is a political entity the
requirement for internal peace compels it in critical situations to decide also upon
the domestic enemy; an enemy over which the state will exercise the power of life
and death. It is the urgency of the authentic, existential threat, the possibility of an
enemy at the gates, that gives rise to the political; a phenomenon that cannot be
wished away or subdued by universalism. The threat calls for a response, as the
moment of decision, which ushers in Schmitts theory of sovereignty:
Sovereign is he who decides the exception.
11
Schmitt reveals in Political Theology that the norm is cradled within the
exception because only it can give rise to the conditions that set the boundaries of
what may or not be permitted by the state.
12
The justication for the usurpation of
power is simply that without it a people are defenceless before the enemy Other.
Levinas also developed his ethical thinking in the shadow of a catastrophe but for
him it was WW2 and the Shoah that was the decisive inuence. It would not be
difcult, under these circumstances to imagine Levinas succumbing to despair at the
human condition. Instead what he offers is an inversion of philosophical orthodoxy
that cuts against the grain of intellectual thought; to begin with a quest for the Good
rather than the True. For an uncompromising critic of Levinas this is a betrayal of
Western intellectual thought, a pseudo-religion masquerading as philosophy, which
must be resisted for the very honour of philosophy itself.
13
However, whereas the
cataclysm of WW2 would stimulate an endless discourse on the nature of Evil and
its prevalence among humanity, Levinas found it remarkable that despite the weight
of ontological considerations there was nevertheless the manifest presence of Good.
But how could the Good be recognised and how was it possible to distil its
characteristics? The answer for Levinas was to isolate the attempt to understand
Goodness from the search for meaning to discover it in its pure, undiluted form as a
solitary, unproblematised and precognitive encounter between the Self and the
Other detached from all consideration. The Self-absorption of philosophy is
replaced by Other-absorption; the Other is everything and I am nothing. Through
her face the Self is called to conscience by an unequivocal and non-reciprocal
demand. The Self owes everything to the Other and the Other owes nothing in
return. Or as Levinas declares
to say here I am (me voici). To do something for the Other. To give. To be
human, thats it.
14
11
Schmitt (2005, p. 5).
12
From an altogether different perspective Walter Benjamin declared that if violence, crowned by fate,
is the origin of the law, then it may be readily supposed that where the highest violence, that over life and
death, occurs in the legal system, the origins of the law jut manifestly and fearsomely into existence.
(1999:286).
13
Badiou (2002, p. 20).
14
Levinas (1995, p. 97).
Critical Legal Theorys Turn to Schmitt 5
1 3
The task is not to strive for enlightenment to establish a purpose. It is not a
question of establishing how to be righteous but rather is it righteous to be? A life
devoid of ethics is a purposeless existence and empty of meaning.
Constructions of the Other
Central to the distinction between Levinas and Schmitt are their accounts of the
Other as the entity that has the critical impact on their antithetical viewpoints. For
Levinas, the Other is an overwhelming presence that provides the Self with the
possibility of being more than oneself by being for the Other in a forgetting, or
subordination of the Self, as an ethical being reected in its manifestation of total,
unconditional and personal responsibility so that, to follow Dostoyevsky in the
Brothers Karamazov
each of us is guilty before everyone for everyone, and I more than the others.
15
The Other is not necessarily a benign presence but rather one that, through her
face, haunts the Self and puts the Self to shame.
The face is fundamental. It does not have any systematic character. It is a
notion through which man comes to me via a human act different from
knowing.
16
Nevertheless, it is compelling for the face is
a request and it is authority. You have a questionhow could it be that if there
is a commandment in the face, one can do the opposite of what the face
demands. The face is not a force. It is an authority. Authority is often without
force.
17
Every qualied step towards the Other and mitigation of the Selfs Other is
unethical and puts the Self in bad faith. It is an intolerable imposition on the Self but
anything less than total responsibility is, in ethical terms, a betrayal of the Other. By
contrast the Other that obsesses Schmitt is the political enemy. The stark reality of
the human condition is one of conict, or the threat of conict. That people form
themselves into groupings is a matter of necessity and contingency. The political
entity, the nation state, must fend off external challenges that may pose a threat to its
interests and its very existence. All political actions can be reduced to one specic
political distinction which is that between friend and enemy. This distinction is
essential to the fundamental pre-requisite of survival. It requires that the group
identies the nature and form of the threat and from whom it emanates, before
developing a stratagem of contingency; because the degree of the threat will justify
the counter-measures that must be taken to contain it. The identication of the
enemy, conceptually, is remarkably uid and even nebulous given its signicance
15
Levinas (2006, p. 146).
16
Wright et al. (1988, p. 168).
17
Supra n.18 at 169.
6 A. Loumansky
1 3
and centrality to Schmitts thought. The nature of the enemy is political, rather than
personal as there may be nothing morally distinguishable about the adversary who
will be faced with similar, albeit opposing, political considerations. What matters is
that
he is, nevertheless, the other, the stranger; and it is sufcient that for his nature
that he is, in a especially intense way something different and alien, so that
extreme conicts with him are possible.
18
Schmitts Other possesses none of the traits that Levinas bestows upon his. Nor is
he in the least interested in examining the Others effect upon the Self and therefore
it would not be strictly accurate to suggest a Sartrean shame-inducing alternative;
one that is not too distant from Schmitt in holding that the Other is a product of
ontology and that conict is the pre-condition of existence.
What really count are conict, willpower and particularity, not consensus
reason and universalism. Schmitts purpose of stating this is to hammer out
that no rationalistic or moral scheme is able to control life.
19
Schmitts Other is politically conceived and it is enough that she possesses
interests that are oppositional to the Selfs and therefore constitute an immediate,
concrete threat. Indeed
The criterion of the friend-and-enemy distinction in no way implies that one
particular nation must be the friend or enemy of another specic nation; what
matters above all else is that the enemy is at hand and that war (which) is
neither the aim nor the purpose nor even the very content of politics is
understood to be an ever present possibility.
20
The question arises, who is the enemy? How is the enemy to be determined and
by whom? According to Schmitt that right (jus belli) belongs to the state as an
essentially political entity and allows for the real possibility of deciding in a
concrete situation upon the enemy and the real possibility of ghting him with
the power emanating from the entity.
21
As Dyrberg observes, the constitutive role assigned to the enemy is to enable
those who hold the reins of power, who are imbued with sovereign authority to
politicise external borders and to depoliticise internally. Thus, the enemy-friend
distinction, when applied de facto to international relations, asserts that politics is
for the powerful elites of the state. For this clientele the enemy is just thatan
enemy (a matter of business in other words). Yet for the others, the persuadable,
the enemy is the very symbol of negativity. The purpose is to place a distance
between us and them that will make the task of motivating soldiers to kill the
external foe in war so much easier to accomplish. The internal foe must be
18
Schmitt (2007, p. 27).
19
Dryberg (2009, p. 653).
20
Supra n.10 at 34.
21
Supra n.10 at 45.
Critical Legal Theorys Turn to Schmitt 7
1 3
neutralised for the sake of internal harmony as part of the process of the
consolidation of the Sovereigns power base. In response to the observation that this
is a key characteristic of dictatorship, Schmitts view is that it clearly applies to any
nation state and merely serves to explain how power is consolidated by the
Sovereign. Yet, as Dyrberg reminds, us this is
the same logic that is at stake when people turn their neighbour over to the
secret police well knowing that he or she will be tortured, be raped, disappear
and/or be killed.
22
Schmitts suggestion that the war in a just cause waged on behalf of liberal
democracies in the name of humanity serves to dehumanise the enemy (by placing
the enemy on the outside of humanity) is offset by this impersonal and abstracted
account of the Other that robs her of any identity or role other than that of a political
enemy.
The Turn from Levinas: The Problem with an Unproblematised Ethics
Rose considered that postmodernism was disqualied from any meaningful
participation in philosophical discourse by its own inherent and insoluble
contradictions as well as its intellectual incoherence. According to her Levinass
attempt to segregate ethics is a futile enterprise to preserve a holy middle that is
broken from the outset by the inrush of politics and ethics.
23
Postmodernism, despite its initial allure, had nothing to offer. All that remains is
for philosophy to apply a new coat of paint, grey on grey through revisitation and
restatement. In response Bauman has suggested that Roses
serene, dignied philosophy that shuns illusionsdespite the authors own
protestations, is postmodern through and through. In a fashion so typical of the
postmodern mind, it still thinks it would be nice if the hopes of modernity
came true but it no more believes they ever will.
24
Rose had been particularly affronted by the stance that Levinas adopted in his
interview with Shlomo Malka following the massacres in the Palestinian refugee
camps at Sabra and Chatilla in which he evaded the suggestion that the Palestinian
was the Israelis Other and instead turned the discussion into one concerning the
relationship of the Jew in the Diaspora to the Jew in Israel (as the relationship of
neighbours). According to Rose
Levinas exonerates not only Israel but also the whole historical structure of
repetition backwards which he evasively identies.
25
22
Supra n.21 at 660.
23
Rose (1992, p. 248).
24
Bauman (1995, p. 75).
25
Supra n.25 at 75.
8 A. Loumansky
1 3
My own view
26
that this interview was not at all a catastrophic betrayal of
everything that Levinas stands for nds little favour within the broad consensus of
academics although it is shared to some extent by Howard Caygill who remarks that
Levinass last words are a warning that the State of Israel is only justied if it
obeys the prophetic call for justice if it ceases to do so, then its inhabitants
will be expelled.
27
(Caygill 2002:194).
The inference is clear; if the Israelis act unjustly to the Palestinians then any
rights to the land will be forfeit. Indeed
the link between political judgement and ethical reection evident as in the
case of the Chatilla and Sabra murders is not a lapse in the consistency of
Levinass thought, but is fully characteristic, and perhaps uncomfortably,
comprises one of its unacknowledged strengths because the link which is
reective rather than formulaic allows it to yield far richer results
thanabstract considerations. (Caygill 2000:6)
It is clear that reections of this nature were potentially embarrassing to some CL
theorists; for if there was no discernible systemic or methodological movement from
his thinking on the ethical to his view it would appear to be inadequate to the task in
hand. Whatever the subtleties of Levinasian thought it was felt that events, such as
massacres in the Palestinian refugee camps, demanded a forthright response and
anything less than that could only be seen as highly inappropriate and utterly at odds
with everything for which his ethics was claimed to stand. The message from the
interview that Israel had a moral responsibility that exceeded mere culpability
despite the lack of guilt here and probably there was buried by the horror at the
supposed exoneration. If ever a situation demanded an unequivocal condemnation
of Israel this would appear to be it. Attempts to reconcile Levinas s ethics to
politics, such as Fagans (2009) recent attempt to insinuate the Third into the Selfs
ethical encounter with the Others,
28
by seeking to rescue Levinas from himself by
grounding his ethics, appeared contradictory in negating the central dening
characteristic of his thinking.
As early as 1994 Douzinas and Warrington asserted that the very existence and
uniqueness of nations is owed to narratives emblems and symbols and that
there never has been a nationalism that has successfully based its claim to
nationhood and independent state existence on abstract claims of right and
universality.
29
According to Douzinas the human rights discourse has been hijacked by
standard liberal theories which exclude the possibility of rights existing
26
For a more in-depth analysis of Levinass interview with Shlomo Malka see Loumansky (2005)
Levinas, Israel and the call to conscience, Law and Critique.
27
Caygill (2002, p. 194).
28
Fagans interesting thesis is discussed further in an article, Hanging God at Auschwitz by this author
of which full details are provided in the bibliography.
29
Douzinas and Warrington (1994, p. 148).
Critical Legal Theorys Turn to Schmitt 9
1 3
independently of them. He argues that this amounts to an equalisation of rights
which we should endeavour to resist in view of its moral poverty and its co-option
of human rights into an aggressive legitimisation of state power. Douzinas paints a
bleak picture of the future in which human rights fail to assert affection over fear
of the Other and a nal outcome in which there will be a
fracturing of community and the social bond into a monadology, in which
some people will be able to assert their nal and absolute sovereignty while
others will be reduced to the status of the perpetually oppressed underclass.
30
He is alluding here to the concept of Sovereign rights waiting in the wings to oust
the universalism of human rights. Legalised desire in the form of absolute and
unrestricted rights will be acquired by an empowered group and asserted over the
heads of others. Instead natural rights, for example, inuenced by a mythical state of
freedom and opposing the present in the name of the future would resist the claim
that utopian visions had been expelled from the all serious intellectual thought and
that any objection to the contrary has been rendered redundant by the nal triumph
of the Hegelian maxim that the the rational is real; the real is rational. Yet, it is
clear that the Hegelian real does not merely encapsulate the present but can only be
realised as historical becoming, of history that judges the sedimentation of
reason
31
For Douzinas natural rights represented the possibility of fullling Derridas
disturbance of the future as the interruption of the here-now by leaning towards the
future through the agency of a messianism without a messiah. In this analysis of
human rights Douzinas has highlighted an antagonism to minority groups that are
indicative of fear and mistrust and a yearning for
a new Single genetically modied Power which will mobilise and unite the
fragments again under a new immanent reason, deep structure or metaphysical
principle.
32
This theme is further developed in Human Rights and Empire where Douzinas
reveals the clear inuence of Carl Schmitts dark ruminations.
33
Now the
legitimation of Sovereign rights is consolidated by being turned not inwards against
useful minorities but outwards towards an external enemy. Douzinas speaks
admiringly of Schmitts prescience in predicting the shape of recent human
events
34
He utilises it to formulate a critique of the attempts of the West, under the
hegemony of the United States, to assert its sovereignty nominally in the interests of
human rights. The agenda is not so very different from the Christian ecumenical
mission of salvation through proselytisation or extermination. Human rights
presuppose that their advancement is in the cause of all humanity and thus, by
deduction, there can be no human enemy (as their interests cannot be separable from
30
Supra n.5 at 376.
31
Supra n.31 at 378.
32
Supra n.5 at 375.
33
Douzinas (2007, p. 6).
34
Supra n.35 at 172.
10 A. Loumansky
1 3
that of humanity as a whole). The co-option of human rights is the states attempt to
validate its actions by way of dehumanising those who resist. Humanity itself is a
groundless value and unless human rights reject their appropriation by cosmopolitan
sovereignty they will only lend themselves to a withering away of humanity and
the principle of just war will have nally won, in the proclamation of a
perpetual peace drowned in endless violence.
35
Critiques of CLTs Appropriation of Schmitt
Chandler has suggested that the lure of Schmitt for CLT is not based on an
accurate appreciation of his critique of universalism and, in particular, the Just
War doctrine and this betrays their own analytical weaknesses.
36
For example,
Nomos of the Earth, originally published in 1950, is an elegy for the era of
empire, the old world order, which had been replaced by that of the new world.
He was concerned with the breakdown of the geopolitical arrangement, the Jus
Publicum Europaeum, that had served Europe tolerably well until that rst
modern cataclysm, WW1, destroyed its great achievement; an international order
based on sovereign states. When Schmitt was writing Nomos, at the height of the
Cold War, he was urging, in the words of Chandler a restoration of the moral
authority of imperialism which the spread of universal values would not be able
to achieve.
37
As Chandler explains
Schmitts ontological focus does not lead to a critique of US ethical and legal
claims on the basis that they do not constitute a new global order, but precisely
because they do not create a new global order or nomos.
38
Essentially CLT admirers of Schmitt often do not appreciate that his criticism of
the West did not stem from an attempt to establish a global order under Western
hegemony but rather because espousing the cause of universalism would fail to
achieve that end.
Chandler, divides CLT into two camps: the critical post-structuralists (essentially
critics of a formerly pro-Marxist orientation) and critical cosmopolitans (supporters
of the spread of human rightsby intervention where necessary). The former have
discovered in Schmitt a post-Marxist narrative of resistance and that he can help
them to oppose liberal democratic views on sovereign power, This results in a
conundrum for in attempting a
blanket critique of the liberal frameworks of international and domestic law,
critical post-structuralists use Schmitt to argue that the undermining of these
frameworks, is in fact, an example of the dangers of liberal universalism.
39
35
Supra n.35 at 290.
36
Supra n.3 at 47.
37
Supra n.3 at 38.
38
Supra n.3 at 40.
39
Supra n.3 at 30.
Critical Legal Theorys Turn to Schmitt 11
1 3
Critical cosmopolitans, on the other hand, are sensitive to the charge that
their support for human rights claims and humanitarian intervention has lent
legitimacy to American military adventurism, particularly the war in Iraq.
40
Their critiques cannot be sustained as they are forced to empty Schmitts work of
its analytical content so that by a twist of irony
a political and legal theorist explicitly hostile to an emancipatory perspective
has more to offer than they do themselves.
41
Reaching a fairly similar conclusion, Dyrberg excoriates both camps by claiming
that the problem facing leftists in their use of Schmitt is that his thinking does not
lend itself either to an attack on, or a defence, of liberal democracy because in the
case of post-structuralists his work cannot be insulated from his political conviction
and his distinction between liberalism and democracy merely leads the left into
reactionary identity politics while to use Schmitt (against himself)
for the purpose of strengthening liberal democracy runs into serious
difculties, because the whole set up is geared combat this regime form.
42
Dyrberg argues that Schmitts view of the political, which through the exception
to the norm amounts to a vitalism that is anti-pluralist, collectivist, elitist and
statist and it
looks self-defeating to use Schmitt to advance what he resented most of all:
modern democracy underpinned by right/left orientation. Although leftists
enjoy portraying Schmitt as a erce critic of liberalism, I nd it more obvious
to approach him as an enemy of modern democracy.
43
Dyrberg points out that there is a tendency among left-wing admirers of Schmitt
to downplay his links to fascism either by seeking to nd excuses for him or by
dismissing such objections as futile moralising. The point is that that Schmitts
thinking cannot be cherry-picked to isolate his critique of democracy from the
methodology and analysis that he utilised to support it. The process is intrinsic to the
ends it served and thus, using Schmitt for this purpose does not redeem democracy
by rescuing it from its universalising (imperialising) impulse but merely serves to
subvert it. A process criticised for its in-built drive towards tyranny is replaced by
one that has already arrived.
Two examples of the privileging of Schmitts thinking will be mentioned briey
at this point. I do not agree with Bowring that Giorgio Agamben can be labelled a
contemporary disciple of Schmitt as it appears that his reading can be taken to be
oppositional although there is a case for accepting that he belongs to the body of
Catholic scholarship that has fallen under the spell of his malign inuence.
44
40
Supra n.3 at 30.
41
Supra n.3 at 48.
42
Supra n.21 at 649.
43
Supra n.21 at 650.
44
Supra n.4 at 13.
12 A. Loumansky
1 3
Agamben presents himself as a defender against the theft of civil liberties by
democracies which inevitably drift into a totalitarianism that is not recognised by
their citizens because it is concealed within a mask of benevolence. For Agamben, a
permanent state of exception develops and grows from the very conditions that arise
within a liberal democracy. For Agamben, a state of exception exists at the centre of
the arcanum imperii (secret of power) as
an empty space in which a human action with no relation to law stands before
a norm with no relation to life.
As a machine with its empty centre
the state of exception has today reached its maximum worldwide deployment.
The normative aspect of law can thus be obliterated and contradicted with
impunity by a governmental violence that while ignoring international law
externally and producing a permanent state of exception internally
nevertheless still claims to be applying the law.
45
The laws established by the norms, so despised by Schmitt, are subverted by the
very institutions that should be upholding them by the introduction of states of
exception that allow ever more power to accrue to them. This insight is of limited
value and gives insufcient weight to the increasing means to challenge the
arcanum imperii (the secret power) that lies at the heart of government as evidenced
by the amount of information that evades the attempts to draw a mantle of secrecy
around its decision-making processes through the activities of whistleblowers and
bodies such as Wiki leaks.
In the case of Salter we do have an example of an academic who has embraced
Schmitt in his recently published work, Carl Schmitt: Law as Politics, Ideology and
Strategic Myth. Salter adopts just the sort of approach referred to earlier i.e. one that
seeks to separate Schmitts ideas from the political context in which they were
formed. It is only in the conclusion of his book that he acknowledges his
sympathetic interpretation of a Schmittean approach to modern law and that it
would have been equally possible to have developed hostile and destructive
interpretations more in keeping with the literature that dominated the
discussions until the mid-1990s at least.
46
However, the methodology employed by Salter of only reserving an obligatory
nod towards criticisms of Schmitt in the form of a postscript produces a distorted
and stilted discourse that fails to explore the issues in the sort of depth that they
require. An example of the obfuscation in thinking that a turn to Schmitt induces is
discernible from Salters consideration of the invocation of the just cause that
dehumanises the enemy.
To conscate the word humanity, to invoke and monopolize such a term
(denies) the enemy the quality of being human and declaring him to be an
45
Agamben (2005, p. 86/87).
46
Salter and Schmitt (2012, p. 264).
Critical Legal Theorys Turn to Schmitt 13
1 3
outlaw of humanity, and a war can thereby be driven to the most extreme
inhumanity.
47
At this point Salter, had he chosen to adopt a more critical approach, could well
have interjected by making the point that to act in the name of humanity provides
the very moral reference point by which the actions of its proponents can be called
into question. This reference point was not adopted by the Nazis who claimed to be
ghting solely for the German people and in seeing war as a brutal (albeit
legitimate) exercise in advancing their interests expunged all notions of humanity
from its prosecution unless, of course, they considered themselves to be the victims.
In short, Schmitt did not denounce the dehumanising tendencies of liberal
democracies for the sake of humanity but to serve the purpose German national
interests. Nor is it unreasonable to make reference to his possibly most notorious
work, the Grossraum Order
48
which sought to advance the argument for Germany
to wage its catastrophic war of aggression to achieve an authentic and contiguous
land-based empire as opposed to the British Empire that lacked spatial authenticity
but existed primarily to defend its trading routes. This was the logical outcome of
Schmitts thinking that sought to give Germany free reign from humanitys
constraints.
One would have expected Salter to have explored in more detail the very relevant
issue of the inhumanity of the Nazis treatment of the Jews which is barely alluded
to in this work despite citing in the bibliography Raphael Grosss work, Carl
Schmitt and the Jews. The Jewish Question, the Holocaust and German Legal
Theory. Salter would claim that this is the sort of straw-man argument that
impedes serious consideration of Schmitts thinking but I would insist that it is
absolutely fundamental to his work which on the pretext of the abuse of humanity
paints humanity out of the picture altogether. It does not matter that Schmitts
antisemitism was not as extreme as those of many of his contemporaries; it is simply
the case that his indifference to the plight of the Jews is perfectly consistent with his
thinking.
Conclusion
With the turn to Schmitt, CLT has not so much reached the end of the road; rather
than turned temporarily into a cul-de-sac. Much of the criticism is merited because,
on occasions CLT do not appear to have thought through the consequences of their
provocations as and when Schmitts theories are embraced to deconstruct liberal
democracy. As we have seen the attempt to present the Wests promotion as nothing
more than a cynical charade to disguise a grab of resources leads into human rights
denial territory. That is morally indefensible, as how can we insist upon rights for
47
Supra n.48 at 82.
48
The full title of this work is The Grossraum Order of International Law with a Ban on Intervention for
Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law (19391941).
Published in Writings on War (2011).
14 A. Loumansky
1 3
ourselves while writing them off for others and blithely requiring that they should
tolerate what we would nd intolerable?
The idea that the overriding imperative is to block the advancement of human
rights at all costs by exposing it as an insidious attempt to subordinate and control
supposedly authentic struggles against oppression is itself pernicious. There are
genuine grounds to be concerned that the triumphalism of liberal democracy should
be accompanied by an attempt to impose its values universally and it is must be
asked whether it is it all possible to force people to be free and, if so, at what cost?
In 1953 at an address to the American Society of newspaper editors Eisenhower
declared that: this world in arms is not spending money alone. It is spending the
sweat of its laborers, the genius of its scientists, the hopes of its children. This is not
a way of life at all in any true sense. Under the clouds of war, it is humanity hanging
on a cross of iron.
49
How ironic it would be if a Republican president was able to highlight the futility
of the pursuit of power (dressed, naturally, in the trappings of the Just War) with a
lucidity, poignancy and eloquence unmatched by any of liberal democracys most
trenchant critics. If the highest echelons of the Wests political establishment are
capable of publicly acknowledging the dangers posed by the industrial military
complex with an agenda of its own that it imposes on the nation state and driven to
war to justify its existence one might be inclined to conclude that CL theory has
precious little extra to add. It certainly would not be able to replace Marxism as the
dominant expose of liberal democracys failings.
Critical legal theorists (CLT) is at risk of running around in ever decreasing
circles but then this is a problem that confronts philosophy in general. Perhaps its
greatest enemy is its own need for constant reinvention and the search for the new
idea. However, it seems that CLT is in danger of picking the wrong ght with liberal
democracya mistake that Levinas avoided. Castellino reminds us, and Levinas
would surely have concurred, that
recent history does suggest that the liberal state may well be the ideal vehicle
for the furtherance of human rights values
and while they can never be a panacea they do serve to
articulate the basic minimal positions from which there ought to be no
backtracking.
50
Levinas never sets out to repudiate human rights but rather afrms them as the
reminder that there is no justice yet. His work may be dismissed in some quarters as
moralising casuistry, or in Badious words a pious discourse without piety
51
but it
remains my view that with its reminder of how the most vaunting claims, in respect
of rights and the delivery of justice, fall short of the unremitting obligation that is
owed to the Other, the singular Other, we realise and benet from an understanding
of just how short justice falls from ethics. This seems a sounder platform to
49
From a speech before the American Society of Newspaper Editors, April 16, 1953.
50
Supra n.6 at 94.
51
Supra n.15 at 22.
Critical Legal Theorys Turn to Schmitt 15
1 3
challenge the claims of universalism than the ontological scepticism that Schmitt
advocates.
According to Levinas
Human rights are the reminder that there is no justice yet. And consequently I
believe that it is absolutely obvious that the liberal state is more moral than the
fascist state, and closer to the morally ideal state.
52
To that end, Levinas offers a way of thinking that should haunt liberal democracy
without repudiating it.
References
Agamben G. 2005. State of exception (trans: Attell, K.). Chicago: University of Chicago Press.
Aradau, C., and R. Van Munster. 2009. Exceptionalism and the war on terror: Criminology meets
international relations. British Journal of Criminology 49(5): 686701.
Badiou A. 2002. Ethics, an essay on the understanding of evil. London & New York.
Bauman, Z. 1995. Life in fragments: Essays in postmodernity. Oxford: Blackwell Publishers.
Bowring, B. 2008. The degradation of the international legal order: The rehabilitation and the possibility
of politics. Abingdon: Routledge-Cavendish.
Caygill, H. 2000. Levinass political judgement, the Esprit Articles 19341983 Radical Philosophy, 104
Nov/Dec.
Caygill, H. 2002. Levinas and the political. New York: Routledge.
Castellino, J. 2009. The end of the liberal state and the rst terrorist. London: Middlesex University
Press.
Chandler, D. 2008. The revival of carl schmitt in international relations: The last refuge of critical
theorists? Millennium Journal of International Studies 37(1): 2748.
Derrida, J. 1999. Adieu to Emmanuel Levinas. Stanford: Stanford University Press.
Douzinas, C., and R. Warrington. 1994. Justice miscarried, ethics, aesthetics and the law. New York:
Harvester Wheatsheaf.
Douzinas, C. 2002. The end of human rights. Oxford: Hart Publishing.
Douzinas, C. 2007. Human rights and empire, the political philosophy of cosmopolitanism. Abingdon:
Routledge-Cavendish.
Dyrberg, T.B. 2009. The leftist fascination with Schmitt and the esoteric quality of the political.
Philosophy and Social Criticism 35(6): 649669.
Fagan M. 2009. Emmanuel Levinas. The Inseparability of Ethics and Politics: Rethinking the Third in
Emmanuel Levinas, 8(1):522(18). Palgrave Macmillan, UK.
Hawksley, H. 2009. Democracy kills, whats so good about the vote? London: Macmillan.
Levinas E. (rst published 1982). 1995. Ethics and Innity (trans: Cohen, R.). Pittsburgh: Duquesne
University Press.
Levinas E. (rst published 1981). 2006. Otherwise than being, or beyond essence. Pittsburgh: Duquesne
University Press.
Loumansky A. 2005. Levinas, Israel and the call to conscience. Law and Critique.
Rose, G. 1992. The broken middle: Out of our ancient society. Oxford: Blackwell Publishers.
Salter, M.G., and Carl Schmitt. 2012. Law as politics, ideology and strategic myth. London: Routledge.
Schmitt C. (rst published 1922). 2005. Political theology, four chapters on the concept of sovereignty
(trans: Schwab, G.). Chicago: University of Chicago Press.
Schmitt C. (rst published 1932). 2007. The concept of the political (trans: Schwab, G.). Chicago: The
University of Chicago Press.
Wright, T., P., Hughes, and A., Ainley. 1988. The paradox of morality: An interview with Emmanuel
Levinas. In Contribution to the provocation of Levinas: rethinking the other, ed. R. Bernasconi, D.
Wood. Routledge: London/New York: Kegan Paul.
52
Supra n.18 at 178.
16 A. Loumansky
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