CARL SCHMITT AND DEMOCRACY

In our fifth article in the series on the German Conservative Revolution Paul Gottfried examines the relation of the famous jurist to the question of democracy.Schmitt’s critics, from scandalized fellow Catholics to self-proclaimed liberal-democrats, have maintained that his distinction between liberalism and democracy was purely contrived. Indeed it was intended to achieve a baneful political effect: discredit the battered remnants of Weimar German parliamentary government and prepare the ground for a fascist dictatorship bottomed on a mythic popular will and without constitutional restraints. This argument is stated most exhaustively by Jrgen Fialowski in Die Wendung zum Fhrerstaat in 1958, but it also continues to spill over into invectives against Schmitt encountered in The New Republicand elsewhere.

To this particular brief against Schmitt, as a perpetually calculating proto-fascist, his recent defenders, including myself, have responded by citing his documentable opposition to the Nazis in 1931 and 1932. One can also point to his proposals from the twenties on, to make the Weimar Constitution workable by institutionalising sweeping presidential powers in the face of threats to the German state and Weimar regime. Note that Schmitt supported a broad use of executive power under the socialist president Friedrich Ebert as well as Ebert’s conservative successor, Paul von Hindenburg.

What unites Schmitt’s critics and defenders however, is the belief concerning his steady preference for democracy over liberalism. Most interpreters are inclined to accept what Giovanni Sartori has remarked in this connection, that liberalism can be defined as whatever Schmitt was not; and certainly there is enough deprecation of liberals and liberalism in Schmitt’s corpus to prove his antagonistic relationship to both.

Even so, his views of liberalism and democracy were more problematic than is often imagined; and though Schmitt treated his two points of reference as polar opposites, he did not conceptualize them always in exactly the same way, even less did he attach the same value judgement to both from the early twenties onwards. In Political Theology in 1922, Schmitt ridicules what Juan Donoso-Cortis had called “la clasa discutidora“, the liberal bourgeoisie, who sought to turn all principled positions into the bases for mere compromise.

Taking a leaf from the Spanish Catholic counter-revolutionary of the 1830s and 1840s (Donoso), Schmitt goes after middle-class parliamentarians for excessive reliance on legal arrangements. He ascribes this political faith to the prevalent Deism of the European bourgeoisie, going back to the eighteenth century Enlightenment. Bourgeois liberals had transferred to the political realm the deistic belief in a self-regulating universe overseen by a divine watchmaker, whence their lack of understanding for the necessarily conflictual nature of political life and the need for sovereigns to settle the otherwise widening disputes between classes and interests.

It is certainly possible to glimpse in Political Theology the beginning of a critique against liberalism, which Schmitt was already developing in the early twenties. Significantly, the same work does not set over against the image of bovine and politically simple-minded liberals an attractive democratic alternative, quite the contrary. Democrats are shown to be idolaters of the popular will who yearn for revolutionary violence. Schmitt describes democrats as typically pantheistic; he takes, without attribution, Alexis de Tocqueville’s warning from Book Two, Chapter Seven of Democracy in Americathat pantheism is the philosophic system most likely to seduce the human spirit in democratic centuries.

Schmitt’s exaltation of an organic conception of democracy against liberalism indifferent to historical specificities and the need for unified authority was not a permanent aspect of his thinking. It marked only one period of time in his working career of more than seventy years, from the late twenties until Hitler’s accession to power in January 1933. Schmitt viewed the Nazi regime as a sovereign dictatorship that had irreversibly replaced the preceding German government. He did not represent it as a mere continuation of a reformed Weimar constitutional order born of a legal revolution, nor did he consider Hitler’s regime to be the flowering of German democracy. Schmitt, we may presume, was serious when he spoke of Germany in the mid-thirties as exemplifying the total state in the era of integral politics. Even at his ingratiating worst under the Third Reich, Schmitt presented the totalist politics of the modern era as a historical fate, what the Greeks had called ta peproma, an allotted destiny that is inflicted rather than freely chosen. In an Italian paper delivered in 1936, The Era of Total Politics, Schmitt notes that

“the current concept of politics has revealed its characteristic totality in the fact that war has become total, that it is a given quantity, from which there must proceed any analysis of internal as well as external politics. Through total war the essential necessity of the fullest inner unity of every belligerent power had displayed itself, together with total hostility toward the outside.”

I for one do not read these passages as an ecstatic affirmation of the New Europe. Schmitt’s own writings warn against total, ideologically-driven wars; and his thirty-year defence of the vanishing European order of sovereign states was related to his stated concern about avoiding the war of all against all. Schmitt defended the European state system that arose in the early modern period as a bulwark against unrestricted violence within and between countries. He did not praise that system for helping to mobilize populations for total war.

Equally implausible is the claim that Schmitt identified the German total state under the Nazis with authentic democracy. In fact, it may be argued that Hitler’s sovereign dictatorship appeared to him as the outcome of Germany’s failure to embrace Schmitt’s own democratic remedy. Hitler took advantage of liberal anarchy and the absence of a German plebiscitary democracy to establish his total state. Schmitt’s construction of a democratic alternative to what he considered Germany’s collapsing liberal regime was devised specifically between 1928 and 1932 as a quid tertium. It was intended to foster a conservative executive as opposed to a parliamentary liberal regime, that would keep alive the German state and permit it to deal with revolutionary extremists. It is of course undeniable that Schmitt shouldered this legal and conceptual task with his own theoretical baggage. As most of his sympathetic critics concede, he was a conservative of a decidedly authoritarian bent, though not a socialist and not much of a nationalist. Schmitt clearly valued the state and his tracts of the early thirties was far more concerned with using the German president to preserve what remained of political authority than to uphold the Weimar Constitution. His prescription for rebuilding the Weimar regime around an expansion of Presidential powers derivative from Article 48 of the Constitution would have done more than simply provide the President with a strengthened basis for rule. It would have had the effect of reconstructing the German government by transferring the locus of authority away from parliamentary coalitions towards a popularly elected head of state.

It must also be admitted that Schmitt makes an overly desperate attempt to divorce democracy completely from the principle of equality, e.g. insisting that “in democracy there is only the equality of the truly equal and the will of those who belong to them”, that “self-proclaimed democraciespractice domination over colonies while teaching the equality of citizens at home”, and finally, that “democratic equality really means homogeneity” and is inapplicable as an ideal for “all of humanity”. Such definitions highlight aspects of democracy that most modern theorists ignore, but then, modern democracy has become synonymous with what Schmitt calls “mass democracy”, as opposed to classical republicanism.

The association of democracy with cohesion and unity was a feature of pre-modern republicanism; but it is far from clear that the term democracy in the twentieth century applies predominantly to communities. Though not false, Schmitt’s definition of democracy is at least somewhat forced and made to serve as an authoritarian traditionalist pole to liberal constitutionalism. Even more important, it was a response to a real political predicament, the breakdown of Weimar parliamentary government. Schmitt may have exaggerated the dangerous and naive character of normativism of whom there are by now there are few genuine practitioners left, yet in the twenties and early thirties, Hans Kelsen and other influential legal theorists represented a wide spread view that constitutional government, barring unexpected catastrophe, was reducible to properly constructed legal rules. Presumably the Weimar Constitution contained such norms and through legally prescribed rotation of party coalitions under a watchful but not over-bearing executive, German parliamentarianism could weather any storm, just about any, one should add. Constitutional architects like Hugo Preuss conferred emergency powers on the President, in the eventuality of the parliamentary system breaking down, though such a breakdown, it was hoped, would never be more than temporary. The President, moreover, could decide when emergency powers were needed, but he was also expected to return as soon as possible to Cabinet government which commanded a parliamentary majority.

After 1931, when the Nazis and the Communists in the Reichstag could block other parties efforts to form an effective government, Hindenburg ruled by emergency decree. His impressive re-election in 1932, against Hitler, signified for Schmitt a mandate for the powerful executive rule. Schmitt urged Hindenburg to govern as a “constitutional dictator”, preserving the state under extended use of Article 48, until he threat to the German state had passed. The fallout effects of the German Depression, the spread of street violence, and the meteoric rise of Nazi and Communist electoral strength in 1931 and 1932 all argued for the need for steady national leadership, able to rise to the challenge of exceptional events.

In the face of persistent defenders of party government and of parliamentary supremacy, Schmitt in Legality and Legitimacyin 1931 mocked the idea that governments were to give every-one, including declared subversives, an equal chance to rule. The Weimar republicans, Schmitt noted, were willing to commit political and even physical suicide, provided that Hitler’s followers obtained 51% of the vote, thereupon they would step aside and allow the Nazis to take over the German state. One of Schmitt’s most outspoken critics, Ludwig Monsignor Kaas of the Catholic Centre Party, did exactly that, exhorting Hindenburg on January 26th, 1933 to name Hitler as German Chancellor. Though Kaas had grave misgivings about Hitler, he thought that Germany would cease to have a parliamentary system unless Hindenburg gave the Nazi leader, with his national electoral base, the chance to form his own party government.

Kaas believed that Schmitt wished to keep Hitler from the chancellorship at least partly out of contempt for parliamentary government. Although he may have been correct in this, it is also likely that Schmitt appreciated the cataclysmic consequences that would attend Hitler’s elevation, and whatever other reasons Schmitt had for defending legitimate organic democracy against pale liberal legalism, one of his overriding concerns was obviously to save the German national state from both parliamentary chaos and violent extremists. This may not have been the only reason for his changing definition of democracy but it was a crucial one.

A powerful executive drawing authority from a national plebiscite could confront threats to the state and public order more effectively than squabbling party leaders, and a recognised military hero, such as even the doddery Field Marshall von Hindenburg, sustained by periodic acts of electoral homage, could speak more plausibly for the national will than parliamentary parties, and even, it was hoped, the would-be nationalist dictator Hitler. It was a traditional protector of civil order that Schmitt had in mind when he penned these controversial words in 1929: “The stronger the power of democratic sentiment becomes, the more certain seems the knowledge that democracy is something other than a system of registering secret ballots. For a democracy in the vital, not technical, sense, a parliament tied to liberal thinking, appears as a mere contrivance, while dictatorial methods can be not only sustained by popular acclamation but be seen as a direct expression of democratic substance.” Though contemptuous of any attempt to reduce democracy to parliamentary techniques, Schmitt was here making an argument, further developed in the early thirties, for a strong executive established on plebiscitary support.

It is possible, let me repeat, to find other reasons for this identification of democracy with organic community, but it may be problematic to look for them apart from the political situation Schmitt was addressing. The Italian scholar, Michele Nicoletti, offers an original and voluminous interpretation of Schmitt’s political thought in Trascendenza e Potere, emphasizing religious and existentialist themes. Exploring Schmitt’s spiritual odyssey from before the Great War into the 1960s, Nicoletti dwells on Catholic theologies, the existentialism of Kierkegaard and the sin-obsessed meditations of the German Lutheran Heinrich Gogarten.

Nicoletti does not entirely ignore the Weimar political scene in carrying out his explication, but it would be fair to say that they furnish no more than a backdrop for his study. Throughout his 632 page book, we see each point in Schmitt’s evolving legal and political thought keyed to an existentialist agony or theological breakthrough. Both Schmitt’s remarks on organic democracy and his implicit justifications of power politics are traced to an immanentist theology, which Nicoletti sees by the late twenties overshadowing the transcendent moment in Schmitt’s conceptualisation of the Deity: “la sostenza omogenea di un populo e di uno stato h dunque il frutto del processo di realizzazione dellunit` fondamentale” is: “innanzitutto un elemento esistenziale.” Nonetheless, the “identity” of parts, which Schmitt associates with both organic democracy and an immanentist historical theology, Nicoletti assures us, cannot eliminate from his thought entirely “the transcendence which <Schmitt asserts> every political system conceals”.

Significantly, Schmitt’s analysis of democracy reveals his dependence on the Catholic notion of representation: Earthly institutions properly formed not only permit humans to stand in for each, but also show forth the transcendent will that they incorporate, whence the distinction in Italian between rappresentatione and spiritual rappresentanza.

Nicoletti insists that Schmitt never abandoned this Medieval concept of representation and tries to find its traces in his writings on liberalism and democracy. This theological investigation, interspersed with biographical details and some historical generalisations, is both engrossing and exhaustively researched. I would even recommend it, as does my friend Paul Piconne, to counter-balance the more secular interpretations of Schmitt brought forth by George Schwab, Helmut Quaritsch and myself. Nicoletti does justice to a side of Schmitt’s thinking that those who stress his analytic rigour sometimes ignore; but it may also be advantageous to recall Schmitt’s own maxim: Eine geschichtliche Wahrheit ist nur einmal wahr(a historical truth is only true once). This does not mean that all truth is relative.

Schmitt believed that truths have a context, to which they must be referred in order to be fully understood. His own legal and political tracts came out of specific historical circumstances, and though they may refer to highly personal existential encounters, they must be examined, first of all, as studied responses to those circumstances. This does not exclude categorically the use of Nicoletti’s hermeneutic, which yields some insight into his subject’s motivation. What I am suggesting is the need to give priority to perspectives on Schmitt’s thinking, including his views on democracy, which are more historically based. In offering these counsels I am following Schmitt’s prescribed methodology, which was to study legal thought in terms of locating it historically (das Rechtsdenken geschichtlich zu verorten).

The question may then be asked whether Schmitt’s definitions of democracy and liberal democracy continue to be relevant. For his well-known critics, like Stephen Holmes, they most definitely are. Their Schmitt, despite his death, goes on furnishing the enemies of global democracy and human rights with the explosives to devastate our political culture. Schmitt remains for such critics the inventor of a grim alternative; and it is one that may become even grimmer, we are told, if authoritarian corporatists or anti-immigration nationalists, particularly Jean Marie Le Pen in France, rise to political power. Looking at the Western world now awash in human rights rhetoric and bureaucratic schemes for empowering victimised minorities, I for one find it hard to worry about these warnings, at least in the short term; and since I agree with Keynes about the long term, I have accordingly turned my attention to other problems. Then, too, it is hard to see why nationalists would have to read Schmitt in order to identify democracy with an organic, national community. They could find exactly the same ideas in Plato, Rousseau, Xenophon, Montesquieu, Renan and in dozens of other non-German authors.

Do Schmitt’s political definitions clarify our own historical situation? I think they do, once allowance is made for their immediate and by now time-bound polemical uses. Particularly revealing for me is Schmitt’s dismissive treatment of “liberal democracy” as “just another form of liberalism intended not for self-identified communities but for the entire human race”. This comment from Parliamentarianism and Mass Democracy (1929) underscores a troublesome feature of open, universal nations, a changing and particularly destabilising self-definition. Mere legal norms cannot determine permanently such nations social and moral relationships; bureaucratic controls proliferate within them, especially therapeutic ones aimed at shaping behaviour and instilling privileged values; and indeed such controls may even be warranted, as an alternative to worsening conflicts among conflicting cultures. Small wonder that these situations also bring to power intellectuals pushing their own highest universal values, a problem Schmitt treated in 1959 in a perceptive essay On the Tyranny of Values.

A natural fit may then exist between the current practice of democratic pluralism and John Dewey’s notion of democracy as something elevated to a “living faith” and having universal applicability. Value-indoctrination through political education and public policy has become increasingly important in pluralistic democracies combined with administrative states. Schmitt’s remarks on liberalism and democracy illuminate this modern paradox of pluralistic societies imposing particular values by shame or by force. In the absence of settled community, such societies are left with an unpleasant choice: the persuasiveness of the political, which Schmitt understood as steadily erupting conflict, or the imposition of values created by intellectuals but reputed to be universal. There may be no way to avoid one or the other and it may even be possible to suffer both fates simultaneously. Recognising this to be the case should not be viewed as a hate crime, nor does it necessarily impel us to work for exclusionary public policies, which the present American bureaucracy would not enforce in any case; yet here too Schmitt’s analysis of liberalism and democracy may be useful, particularly its emphasis on the correlation between societies that proclaim themselves to be elastic and those that cannot control their own violence and moral confusion.

Another correlation which it may be useful to ponder and which is implicit in Schmitt’s work is between societies which boast of open borders and cultural tolerance and those whose intellectuals successfully impose their own “universal values”. All value-advocates are willing to make speeches in favour of democratic pluralism, whether they believe in them or not. In any case, the stance of openness can be used by intellectuals against their rivals pushing other values.

Liberal legality has become the apparent dogma in pluralistic societies, but the quest for legitimacy goes on there as well as intellectual’s work to impose uniform values through public institutions. Like Spinoza’s nature, political societies, Schmitt reminds us, do not exist in vacuums. They will seek to legitimize themselves morally, whatever they call their institutions. They will turn to journalists and bureaucrats to occupy the social and spiritual positions from which kings and priests were once driven. Schmitt did not call this process “secularisation”, a term he reserved for the shifting of power away from the Medieval Church to state sovereigns. He saw the modern project of wedding liberal legality to privileged values differently, as an unsuccessful attempt to re-establish political legitimacy. This was one more reason for his persistent misgivings about the fate of liberal democracy.

Note by the author

A legal theorist of international stature, Carl Schmitt (1888-1985) enjoyed his greatest fame in the inter-war period. It was then that his constitutional commentaries, expositions on the nature of sovereignty and original contribution to an understanding of political life, The Concept of the Political(1927), made Schmitt one of the most provocative and courted intellectuals of Weimar Germany.

Originally identified with the Catholic Rhenish culture into which he had been born and the University of Bonn, where he taught in the early twenties. Schmitt then became associated with political celebrities in Berlin. Among those seeking his legal counsel were German President Paul von Hindenburg, Chancellor Heinrich Br|ning and General Kurt von Schleicher. Schmitt’s firm belief in executive sovereignty put him at odds with the Weimar Constitution, which divided power between the President and the Reichstag; after the onset of the Depression and the political unrest to which it gave rise, he urged Hindenburg to rule by executive decree. Schmitt also supported the suppression of the National Socialists and other parties committed to the overthrow of the German state. The accession of Hitler to power in January 1933 left Schmitt at the mercy of a man and movement he had outspokenly opposed. Seeking to protect himself, once he had decided not to emigrate, Schmitt joined the Nazi Party in May and became identified for a time with Hitler’s reconstruction of the German state. Note that though Schmitt initially defended Hitler’s legal revolution, his own documented criticism of Nazi ideology aroused the regimes suspicions. From 1935 on he was kept under S.S. surveillance and his Serb wife accused of spying for the enemies of the Third Reich.

After the war Schmitt suffered successive humiliations: being gaoled (but then released for lack of proof) as an abettor of Nazi imperialism; exclusion from German academic life; and the denunciations by “liberal democratic” critics as a totalitarian anti-liberal. Unable to recover his professorship at the University of Berlin, he retired to his home at Plettenberg in the Sauerland. There he wrote and received guests, as he himself observed, “in exile”, until his death. His post-war magnum opus,

Nomos der Erde in V”lkerrecht des jus publicum europaeum(1950) re-established Schmitt’s reputation as a scholar of international law and of the evolving European state system. It also contained his ideas about the prospects for international order beyond the disintegration of the nation states, and it stressed the modernity of the state itself as a political entity characterized by united sovereignty and by national particularity.

For those seeking information about Schmitt’s work and studies about him in English, see the bibliographical essay at the end of my monograph,

Carl Schmitt: Politics and Theory (Greenwoood Press 1992) and the footnotes to the new introductory chapter of George Schwab’s Challenge of the Exception, second edition (Greenwood Press, 1989).

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