Special submission from the Chicago Civil Servant
This note is a pedantic clarification about the abuses of the legal philosopher Carl Schmitt in politically charged writing published in the last few years.
I’m a simple man and, like Schmitt, a lower-middle class striver, so I feel a personal affinity for him. To the extent that I’m simply defending the man Schmitt here instead of disputing other authors’ conceptions of the good, this note probably has no bearing upon political debates. But perhaps some political wisdom can nonetheless be gleaned from what follows, so I conclude the note with a little bureaucratic homily.
People on the left and right, from anarchists to white nationalists and Catholics, have drawn ideological strength from Schmitt’s concept of the political, which defines “the political” as a degree of intensity of enmity between groups that has the potential to escalate into violence. In other words, x is political if and only if two or more groups of people are willing to forego procedural niceties like elections and interpersonal civility and fight and die over x. Recent writers have taken this concept out of context and elevated it into a call to political action and/or a basis for political identity.
In some cases, Schmitt is explicitly invoked, usually by alt-right or leftwing radicals who find fascist-adjacent thinkers sexy. In more respectable publications, he’s lurking in the arguments behind words like “enmity,” “political theology,” “depoliticization” or “decision.” Respectable authors keep him chained up like Nietzsche’s barbarian in the cellar of civilization – they use him for the heavy conceptual lifting but can’t mention him because he did some uncouth stuff like join the NSDAP and author a brief in defense of an accused war criminal at Nuremburg.
If you look at some of Schmitt’s more politically charged statements and activities, literary works, and correspondences, it becomes apparent why Schmitt can be attractive to ideologues.
If you’re a Catholic, you’ll find a friendly thinker in the younger Schmitt, a Rheinlander German Catholic harboring racial animosity toward Prussians and sporting a chip on his shoulder about the Kulturkampf. This Schmitt briefly allied with the Catholic center party and wrote extensively about Catholic counter-revolutionary thought.
If you’re a monarchist or authoritarian liberal, you’ll find something for your purposes in Schmitt the bureaucrat, who wrote legal rationalizations for Hindenburg and Luddendorf’s creeping dictatorship, defended the takeover of Prussia by the German Chancellor Franz von Papen through emergency powers, and supported the suppression of the NSDAP by the Weimar state.
If you’re a National Socialist or white nationalist, you’ll find a Schmitt for your purposes in his defense of Hitler’s Night of the Long Knives, in Schmitt the card-holding NSDAP member, and in Schmitt the host of a conference dedicated to extirpating Jewish influence from German jurisprudence (I wonder how many CLE credit hours you got for attending that one!)
If you’re a primordialist or perhaps a BAPitalist – a devotee of Bronze Age Pervert – you can look to Schmitt’s nebulous but immensely rich spatial philosophy of nomos and entertain yourself by reading his voluminous correspondence with the warrior-poet Ernst Juenger, during which Schmitt gushes over the great “Baron Evola.”
And if you’re a leftist, you can champion Schmitt the victim of SS surveillance and oppression (for being a closeted Hegelian and having a taste for slavic women), and Schmitt the post-war exile whom Rabbi Jacob Taubes decided was the only German worth talking to in post-war Germany.
In short, there’s a flavor of Schmitt for every ideology.
But Schmitt’s academic career wasn’t dedicated to espousing political ideologies or universal religious-moral concepts of the good, at least not directly. Schmitt worked in the legal profession both as a practitioner in public law and a legal academic writing about law, specifically law as it had emerged in Europe after the fracturing of Christendom along creedal lines in the 15th-17th centuries.
And this is where my affinity comes in.
Schmitt didn’t enjoy a secure position in Germany. His life was beset by the kinds of disruptions and inescapable demands from people in power that make every middle class striver anxious.
He didn’t come from a noble family or money – indeed, the highly efficient German education system thought his brother best suited for carpentry. I don’t know what testing was like back then, but I’m guessing a carpentry assignment means Schmitt’s brother scored less than a 180 on the LSAT.
Professionally, Schmitt’s first legal job was working as a bureaucrat to produce legal justifications for Hidenburg and Luddendorf’s dictatorship. This is the practical work out of which his classic study on dictatorship grew.
He also tried marrying into nobility, only to discover he had married a gypsy under fraudulent pretext. The Church refused his appeal for annulment but he divorced her anyway. Chicago gypsies don’t run that kind of scam to my knowledge, but given my own experiences, I’m inclined to believe Schmitt. Sometimes you have to do what’s right even if procedure demands otherwise, ya know?
He also sought patronage and protection from anyone and everyone, ranging from wealthy Jewish families to Herman Georing, the latter of which saved him from being sent to a work camp by the SS.
And of course his famous lecture The Concept of the Political, the great call to action for the writers I’m addressing, was delivered at a business school to business students, not to power brokers at some remote philosopher-king’s monastery in the mountains.
Most of the writers addressed herein espouse some primitive form of Schmitt’s critique of liberal formalism, which points to a schizophrenic tendency in modern liberal-legal states permitting groups acting in bad faith to use the neutral machinery of public institutions to gain power and act “badly.”
The writers use this insight to create a sense of urgency that a decision needs to be made before adherence to some neutral procedure causes the self-destruction of the writer’s political group, whether it be white people, Catholics, Jews, LGBTQ etc. The Nazi exploitation of weaknesses in the Weimar constitution to legally gain power is the classic example that Schmitt explicitly warned against in various pamphlets and books.
This isn’t a revolutionary insight. Everyone knows neutral institutions are exploited in this way. Every sufficiently complex system of norms is based on language, and where there’s language, there’s also metalanguages and opportunities to manipulate the scope of norms. The putative neutrality of journalism, science, academia – even religion– is routinely exploited by bad-faith power players for nefarious ends. In the age of Trump, civility in particular is a popular neutral institution that ideologues across the political spectrum attack for hamstringing their political goals. For these writers, stressing the need for civility towards an enemy acting in bad faith just means choosing self-annihilation over victory.
Schmitt’s argument appears much more interesting to me only when taken in the context of the rest of his works (especially his books and not his pamphlets) as well as the lively arguments in continental jurisprudence which took place during his lifetime.
For Schmitt, modern jurisprudence and neutral western law was “the first-born child of occidental rationalism,” i.e., the first modern science. In the wake of the disastrous creedal civil wars of the 16th and 17th centuries costing tens of millions of lives, a neutral secular sphere in European life was carved out for agnostic law, the interpretation of which was not left solely to religious bodies or the new absolute monarchs of Europe, but rather to a new class of professionals called jurists.
This new law was oriented toward the new territorial nation-state, the essence of which is captured by Schmitt’s concept of the political just as the essence of the ancient polis was captured by Aristotle’s politics. Schmitt’s infamous friend-enemy distinction describes a conceptual boundary which circumscribes the law and distinguishes political from neutral legal questions. The state, under the aegis of the absolute monarch, now possessed a monopoly on deciding what was political. Being a Catholic or a Protestant was (at least in theory) no longer sufficient criteria to deny legal protections and escalate to political conflict. Religious identity was instead protected by jurisprudence. Thus, to the extent that jurisprudence was used to inject political decisions into the practice and application of the law, such jurisprudence would be deemed illegal or an impermissible usurpation of the state’s function.
Depending on whom you ask, this neutral space was either heroically forged in the crucible of civil war Europe or cynically grabbed by seculars, particularly the new absolute monarchs, from Christians. In any case, Schmitt was a defender of this order because it provided a safe space where normal people – middle class strivers – could find a bit of predictability and weather the storm of religious-political conflict. Schmitt’s jurists defended this space against the fanaticism of theologians on the one hand and the machinations of monarchs and, later, legislative bodies on the other.
In the context of Weimar and modern representative democracies, Schmitt was concerned that ideology, by way of democracy, was threatening to undermine neutral law. Liberal constitutions, Schmitt wrote, often contain a sort of existential self-referential paradox whereby they can, under certain interpretations (such as Hans Kelsen’s positivism), provide for the legal destruction of the political unity presupposed by the constitution itself.
Schmitt observed, for example, that the Reichstag amendment procedure in the Weimar Constitution, under a Kelsian interpretation, provided a legal means to transform the Reich into a Soviet Republic or some other authoritarian state form at odds with the political identity of the German nation. Given the emergence of absolutist ideologies like Marxism and National Socialism, it was important for Schmitt that jurists be mindful that dogmatic adherence to the principle of logical validity in interpreting the constitution could lead to the destruction of the constitution itself.
More specifically, Schmitt criticized liberal constitutions for being filled with “dilatory clauses” – formalized indecisions on issues that could become political. In our context, the U.S. Constitution is dilatory on a number of issues that could escalate into violent conflict. A useful example is the issue of abortion, which was by no means a political issue at the time of Constitutional ratification, but could now easily lead to armed conflict.
Into such dilatory spaces entered “apocryphal sources of sovereignty” – political decisions made ostensibly under the color of law by people not otherwise authorized to make sovereign political decisions. For abortion in the U.S., the Supreme Court stepped in and made a decision about the political form of existence of the American people. For multiple reasons Schmitt may have objected to this decision, but this isn’t the place to discuss. It’s sufficient to say here that he opposed jurisprudence making such decisions in liberal-democratic states.
So Schmitt opposed forms of jurisprudence predicated on purely formal or logical validity, such as the legal philosophy of Kelsen, because such perspectives could interpret surreptitious political manipulation of the formal law as legal. When Schmitt talks of the bifurcation of legality and legitimacy so that jurisprudence countenances illegitimate but nonetheless legal interpretations, this is what he’s referring to.
But he also opposed overtly political forms of jurisprudence, such as natural law thinking. Schmitt praised for example Savigny’s attack on the natural law jurists. Schmitt praised Savigny’s resistance against the “civil war cries” of natural law jurists and Savigny’s attempt to create an independent jurisprudence. Indeed, in spite of Schmitt’s powerful attacks on legal positivism, he would not have sided with Radbruch or other moralizing post-war critics of German positivism. Schmitt’s ethic remained tied, first, to the legitimacy of the territorial nation-state, and later, to a jurisprudence that remained independent of whatever agents were using law to effect political ends.
In a great middle class bureaucrat CYA lecture delivered close to the end of World War II, Schmitt, anticipating Lon Fuller, told an audience of lawyers
“We [lawyers] can’t succumb to methodological, psychological or general philosophical arguments, because we fulfill a task which no other human activity can fulfill. We cannot choose the changing rulers and regimes according to our own tastes, but in the changing situations we preserve the basis of a rational human existence that cannot do without legal principles such as: a recognition of the individual based on mutual respect even in a conflict situation; a sense for the logic and consistency of concepts and institutions; a sense of reciprocity and the minimum of an orderly procedure, due process, without which there can be no law.”
The argument that, because your enemy is willing to use the law or civility or whatever in bad faith, that therefore your political group needs to respond in kind and abandon the duty to neutrality and procedure, might be a sound strategy but it doesn’t line up with Schmitt’s full position.
I am painting with very broad strokes here. This is a short and thus not entirely clear or completely accurate explication of his theory but its sufficient for my purpose here. If you want more context, I recommend reading Schmitt’s books and not just the short Weimar pamphlets. Or I can email you a memo after I get back from vacation.
To conclude, I empathize with the sense of insecurity Schmitt felt and described in the history of European institutions. I think it’s easy to see why someone like that might worry about ideological calls for total annihilation and enmity, even if he agreed with many of the ideologue’s precepts. It’s easy for academics and affluent pundits to talk about abstractions like liberalism, the good, and the true, I think, but it’s rare that they take into account how their “civil war cries” affect normal people.
I guess the next time I default your parking ticket at a $75,000 fine because you forgot to show up for court, just remember that the due process that allows you to appeal was inspired in part by the brutal slaughter of tens of millions forgotten Europeans, most of whom were peasants or serfs, at the hands of Machiavellian princes and cruel theologians. Remember further that these institutions, these neutral spaces, have histories, and that you need to look closely at calls to overturn them, to see if the people doing so really understand what’s at stake and to see if they even understand how they operate in concrete reality. Look closely and try to determine whether they seem serious. I have to do this every day with the “organizers” who come in, heads filled with the latest intelligence- and corporate-approved social psychology nonsense, calling for social revolution.
Well, maybe I fibbed a bit. Schmitt had another reason, or so he claimed, for defending the high modern state and a jurisprudence independent from theology and politics. He claimed it was a non-denominational Christian achievement by a Christian west, a choice for peace and stability after brutality. You can google Christian Epimetheus if you really want to go down that rabbit hole. I wont take you there. Suffice it to say that some of us humble bureaucrats cant see the future. We only know the past, and try to avoid it as much as possible.