Playing with Fire: The Normative and Prescriptive Implications of Carl Schmitt’s Theory of Sovereignty
Editorial Note: Page numbers in the text refer to the prior publication linked in the text.
There is, apparently, a new surge of interest among scholars of religion and law in the theory of sovereignty proposed by the twentieth-century German legal philosopher, Carl Schmitt (1888-1985). Schmitt is at the center of Robert A. Yelle’s recent book, Sovereignty and the Sacred: Secularism and the Political Economy of Religion, a work that has attracted considerable attention. In a recent symposium, five professors of law and religion express mostly favorable opinions about it, and three of them make only brief mention of possible misgivings regarding the thought and influence of Carl Schmitt.
In passing, Yelle himself does admit that “during the chaos of Weimar Germany,” Schmitt argued for “a strong leader and later served Hitler’s Third Reich,” (9) but a few pages later he states that trying to explain Schmitt’s views “in political or ideological terms,” with the presumably unfair suggestion of a “reductio ad Hitleram,” is likely based on nothing more than “circumstantial” evidence (12). It may also fail, he says, to appreciate Schmitt’s theory for its sheer anthropological and historical insight, for its analytical power, in other words, as a descriptive theory, independent of any ideological implications. In his response to the symposium essays, Yelle does change tone and urges us there to “face up to the disturbing aspects of Schmitt’s legacy,” thus appearing, grudgingly, to concede that Schmitt’s theory may have had a more worrying connection to his Nazi sympathies than was previously admitted (572). However, he does not proceed, as one might expect, to indicate what difference it may make to his central arguments if Schmitt’s theory was closely intermixed with “political or ideological terms.”
In fact, it may be important to look more carefully to see whether the ideological features serve in any way to distort Schmitt’s historical interpretations, as well as to go ahead and complete the job of fully confronting “the disturbing aspects of Schmitt’s legacy” to see where they lead. Uncovering these ideological dimensions is the task of this essay, with analysis of the historical dimensions to come in an essay to follow.
Schmitt’s Theory of Sovereignty at Work
The famous definition with which Schmitt opens his influential book, Political Theology, first published in 1922, is all-important: “Sovereign is [the one] who decides on the exception” (5). The statement summarizes succinctly a set of crucial presuppositions, as well as some arresting implications, that need to be elucidated. Paramount among the presuppositions is Schmitt’s “concept of the political,” presented in a 1927 essay that was published as a book in 1932. A translation of the original article, aptly entitled, “Politics: The Struggle with the Enemy,” makes some of Schmitt’s central ideas available in English. Politics, understood as distinct from the state, must “possess its own, ultimately independent distinguishing characteristic,” separate from other “spheres of human thought and action, such as morals, esthetics, economics….” That characteristic is the distinction of friend and enemy that cannot be derived from anything else. “The political enemy need not be morally evil nor esthetically ugly” nor “an economic competitor.” The enemy is simply “the other” who is “existentially different and strange,” and who “constitutes the negation of one’s own kind of existence, and must therefore be repulsed or fought in order to preserve one’s way of life.” “The concept of the enemy thus implies the eventual reality of struggle,” and “the terms ‘friend’, ‘enemy’, and ‘struggle’ obtain their real significance from their relation to the real possibility of physical killing,” and the possibility of fighting a war (300).
Schmitt thinks that the experience of collective unity is at the heart of political life, and that it may be achieved in no other way than through positing and upholding the friend-enemy distinction. It is only by identifying the adversarial “other,” whose threatening existence permanently poses a potential state of exception, that a “people” can come together and achieve a binding sense of common loyalty and mutuality, showing why, for Schmitt, the sovereign is indispensable to “the concept of the political.” The state of exception, after all, consists of a mortal threat to the survival of the “people,” and as the one who “decides on the exception,” the sovereign possesses the exclusive authority to identify the enemy and to determine what is necessary, including “the real possibility of physical killing,” to defeat it. This understanding, it should be emphasized, applies not just to identifying and repelling enemies outside the community, but to those within. In such cases, it may be necessary that the sovereign “homogenize the community…through the suppression, elimination, or expulsion of internal enemies.” Such requirements call, in short, for a “sovereign dictator,” in Schmitt’s words, who is uniquely capable of establishing the people’s political identity by singling out an enemy against whom their identity is defined, and by inspiring and directing them to fight and die, if necessary, in resistance.
There is room in Schmitt’s thinking for a form of plebiscitary democracy by which the people may give or withhold approval, though only on the initiative of the sovereign, and, because of the terms of the relationship, by disallowing any challenge to or limitation on the sovereign’s absolute authority to define the enemy and what is needed to subdue it. There is also room for a constitution and laws, but, again, they must always be subject to the sovereign’s supreme authority.
The basic problem with the liberal conception of the “rule of law” and constitutionalism, which picture the state as a system of well-defined, established, and impartially administered laws that regulate the use of force inside and outside a given territory, is precisely what Schmitt disparagingly called “liberal normativism,” as Tracey B. Strong notes in his foreword to Schmitt’s Political Theology. (xvi) In Schmitt’s opinion, this conception is an ill-advised effort to restrict the sovereign’s authority to use force under conditions of necessity by imposing legal and moral normative constraints. It is just such efforts that prevent the government from successfully guaranteeing peace and security, the fundamental duty of any political order. How else, Schmitt wondered, was the Weimar government’s feckless response to the widespread chaos and instability generated by so many unruly mass political protests to be understood? To his dismay, Article 48, the emergency article of the Weimar Constitution, was conventionally interpreted to limit sharply the action the chief executive might take in face of domestic disturbance. He made his passionate dissent crystal clear in a discussion of Article 48 in Political Theology. “What characterizes an exception is principally unlimited authority, which means the suspension of the entire legal order…The decision frees itself from all normative ties and becomes in the true sense absolute. The state suspends the law in the exception on the basis of self-preservation” (12).
Schmitt acted on his convictions in 1932 in a case involving the alleged failure of the state government of Prussia to deal adequately with civil unrest. As attorney for the federal government, he successfully defended the proposition that, under Article 48, the president possesses unlimited authority to seize control of the internal affairs of a state government in order to deal with perceived threats to civil order. As such, the chief executive is, after all, the real “guardian of the constitution,” the ultimate legal authority. That decision was undoubtedly “a milestone in the constitutional history of the downfall of the Weimar Republic.” In the end, “nothing remained of the Weimar Constitution except Article 48,” (102) and, thanks to Schmitt and the courts, that article now presented virtually no obstacles to the uninhibited exercise of presidential power.
Addressing a conference of legal scholars on March 26, 1933, Schmitt proclaimed not only that the Weimar Constitution was effectively defunct, but also that the Enabling Act, by which Adolf Hitler assumed dictatorial power, had become the provisional constitution of the German state. Hitler’s desire for absolute power became clear when the Reichstag assembled on March 23, in an event carefully orchestrated by Hitler’s supporters, to pass the Enabling Act that would strip away the last vestiges of parliamentary supervision, as well as all other constraints from the office of chief executive. (436-437) Schmitt’s lecture was a clear sign that he had begun “to warm to the Nazi seizure of power” (179). In 1934, he left no doubt that Hitler fulfilled in every particular his conception of sovereignty.
The Fuhrer supports the law against the worst abuse when in the moment of danger he strengthens his leadership role as supreme judicial authority. [That] authority…springs from the very source from which the law of every people springs. In the time of greatest necessity the supreme law confirms itself, and there appears the highest grade of judicial…development. (103-104, italics added, my translation)
Schmitt promptly threw himself into helping draft a series of “Nazification laws” (Gleichschaltunggesetze) “which could only be described as codifying and legalizing arbitrary rule.” (77, my translation) These abolished state governments, putting them under the control of a commissar appointed by the central authority, and one of the laws authorized removing Jews and Communists from the civil service, including all academic positions. The fervent anti-semitism of such laws reflected Schmitt’s own attitude. He hailed the Nuremberg Laws (1935) which, among other things, deprived Jews, as well as Roma and black people, of citizenship, as “the Constitution of Freedom,” (205) and he expressed his enthusiasm for the advent of Hitler by opening a lecture in 1936 quoting him: “In that I defend myself against the Jews, I struggle to do the work of the Lord” (206). He went on to claim not only that German jurisprudence had been contaminated by Jewish influences, but that Jews were a unique political threat to all Europe for being anarchists and thoroughly lawless (207). His proposal that Jewish writers be publicly referred to as part of “an enemy people” was particularly notable because it shows how unquestioningly Schmitt stood behind Hitler’s right, as sovereign authority, to define “the enemy” as he saw fit (113).
It should be added that, after World War II, Schmitt developed a theory of international relations entirely consistent with what has been described so far. As we mentioned, the principle that the truly legitimate sovereign is to be left entirely alone to make the critical decisions regarding the enemy and what is to be done in response to it applies every bit as much outside the sovereign’s territory as within it. Just as there should be no constraints on sovereign authority within a state, so there should be none outside it. Consequently, all efforts to create international legal and political institutions (like the United Nations) that define and try to enforce which uses of cross-border force are justifiable and which are not are utterly indefensible. They are also futile since by ignoring the fundamentals of political life, which involve an uninhibited sovereign decision regarding friends and enemies and how they should be treated, they will invariably undermine all such efforts.
In sum, although Schmitt had in his younger years been skeptical of the Nazi movement and had trouble, for personal reasons, staying in favor with the leadership, and although he managed to live through the Third Reich and witness its catastrophic outcome, he nevertheless remained, until his death in 1985, largely unrepentant for his extensive support and collaboration (252-279). The best explanation, it seems clear, is the profound compatibility between his theory of sovereignty and the nature of National Socialism.
To make matters worse, the ultimate fate of National Socialism raises severe questions about the persuasiveness of Schmitt’s position. As we said, his theory is clearly prescriptive: an absolute sovereign is entitled to declare prescriptions (commands) that ought to be obeyed, though the basis of the entitlement is neither moral nor legal, but simply the unfettered will of the sovereign. That is because attempts to limit the sovereign’s will with moral or legal norms cannot succeed due to the nature of the state of exception where, by definition, decisions cannot be controlled, and efforts to do so are ultimately bound to fail for defying fundamental political realities. But what becomes of the theory when it appears certain that, after all, the very character of the system of absolute sovereignty exemplified by the Nazi regime itself hastened the complete and ignoble collapse of both sovereign and system? That Schmitt never showed the slightest inclination to reflect on such “disturbing” considerations is decidedly perplexing.
Yelle’s readiness to embrace Schmitt’s theory without reflecting on its “ideological” aspects and practical implications looks highly questionable once we see where such theories lead. Disconcertingly, Yelle himself seems, in one fleeting aside, to grasp a critical point lurking beneath the entire discussion. Contrary to much else he says in his book, Yelle admits that efforts by “liberal constitutionalists” to contain arbitrary violence “are understandable, as they reflect a desire to control or contain the darker side of human nature” (27). Yelle adds that “it is not a question of setting aside our normative commitments against violence and sovereign absolutism, but of not allowing these commitments to blind us to the attraction that such representations may hold,” drawing us in “like moths to a flame” (27-28). One wishes he had spent more time exposing the dangers of playing with fire.
David Little is at present a research fellow at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, having served before that as Professor of the Practice in Religion and International Affairs at Harvard Divinity School, and as Senior Fellow in Religion, Ethics, and Human Rights at the United States Institute of Peace. In 2015, Cambridge University Press published Essays on Religion and Human Rights: Ground To Stand On, and a book of responses to his work by colleagues and former students: Religion and Public Policy: Human Rights, Conflict, and Ethics, ed. by Sumner B. Twiss, Marian Gh. Simion, and Rodney L. Petersen.
Little, David. “Playing with Fire: The Normative and Prescriptive Implications of Carl Schmitt’s Theory of Sovereignty by David Little.” Canopy Forum, December 21, 2023. https://canopyforum.org/2023/12/21/playing-with-fire-the-normative-and-prescriptive-implications-of-carl-schmitts-theory-of-sovereignty.