13.1.5Carl Schmitt’s critique of the “parliamentary law-making state”– The contradiction between formal law-making procedures and substantial rights – Direct plebiscitary democracy

It is instructive to note that there is a certain parallel between Schumpeter’s proposed theory of democracy based upon the competitive struggle for political power and leadership, and Carl Schmitt’s critical observations on the “parliamentary legislative state” (parlamentarischer Gesetzgebungsstaat258) in the particular Gestalt of the Weimar Republic, which is said to be necessarily based on the legitimizing principle of “equal opportunity for winning political power” (gleiche Chance politischer Machtgewinnung, LuL. p. 30) by means of gaining a majority in elections. “So everything depends on the principle of the equal opportunity to win power in domestic politics. If this principle is surrendered, the parliamentary legislative state surrenders itself, its justness and its legality.” (So hängt alles an dem Prinzip der gleichen Chance innerpolitischer Machtgewinnung. Wird dieses Prinzip preisgegeben, so gibt der parlamentarische Gesetzgebungsstaat sich selber, seine Gerechtigkeit und seine Legalität preis. LuL. p. 36) In this democratic kind of thinking, legality and justice are reduced to a procedure for how governmental power is won through political power struggle, without considering the individual freedom exercised in estimative power interplay that needs protection by the rule of law and which is hardly of concern to Schmitt. After all, he is breathing the atmosphere and writing in a country whose historical struggles offers scant humus for any liberal ethos since it has known only rule from above, from an Obrigkeit, that was forged by a heavy Bismarckian hand into an authoritarian State in the second half of the nineteenth century.

In going along with the formal, ultimately procedural, democratic way of thinking for the sake of the argument, Schmitt is worried above all about the fragility of the principle, for “those holding the majority make the laws which are in force; moreover, they themselves validate the laws they make” (Wer die Mehrheit hat, macht die geltenden Gesetze; außerdem macht er die von ihm gemachten Gesetze selber geltend. LuL. p. 36). This implies that by controlling the legislature, the party in power can rig the rules of the power play to exclude or diminish the opportunity for its opponents to gain power, thus corrupting the democratic procedure and making a mockery of the electorate’s power to elect, re-elect or dismiss government. The breakdown of fair play in the struggle for gaining power is said to be predestined in any “emergency situation” (Ausnahmezustand, LuL. p. 39) in which the party in legal possession of power, that enjoys a “large premium” (große Prämie, LuL. p. 39), acts to change the “rules for legal election to its advantage and to the disadvantage of its competitor in domestic politics” (die wahlgesetzlichen Regelungen zu ihrem Vorteil und zum Nachteil des innerpolitischen Konkurrenten treffen. LuL. p. 39). Doubtless Schmitt is pointing to a deficiency of democracy in general, for the governing party will do all it can to consolidate its hold on power, such as gerrymandering the boundaries of electorates. A democratic constitution must have safeguards against such corruption that are provided by a separation of powers within the state, so that citizens can call on the constitutional court to challenge the government’s manipulation of the rules of play for democratic election. But this presupposes a democracy with roots in the soil of a liberal ethos, which the Weimar Republic is sorely lacking.

How does Schmitt come to this worrying assessment of the constitution of the Weimar Constitution? Is his critique to be understood as an attack on liberalism? Or does his critique miss the mark and only hit an already degenerate historical Gestalt of liberalism, namely, German legal positivism? Schmitt obscures the point. In one passage he brings “liberalism” (Liberalismus, LuL. p. 13) directly into connection with “the parliamentary law-making state with its ideal and system of a seamlessly closed legality of all state procedure” ([dem] parlamentarische[n] Gesetzgebungsstaat mit seinem Ideal und System einer lückenlos geschlossenen Legalität alles staatlichen Vorgehens, LuL. p. 14), treating them as synonymous. Already at the outset in his pamphlet, he connects the parliamentary law-making state with the “legal positivism handed down from the pre-war period” (aus der Vorkriegszeit überlieferten Rechtspositivismus, LuL. p. 7) and notes “the ‘turn toward the total state’ characteristic for the present moment [1932 ME] with its tendency toward the ‘plan’ (instead of toward ‘freedom’ as was the case a hundred years ago)” (die für den gegenwärtigen Moment charakteristische ‘Wendung zum totalen Staat’ mit ihrer unver-meidlichen Tendenz zum ‘Plan’ (statt, wie vor hundert Jahren, zur ‘Freiheit’), LuL. p. 11).

It would seem therefore that the “parliamentary law-making state” as the target of Schmitt’s attack is already the degenerate liberal state that has been undermined and hollowed out by nineteenth century German legal positivism and also infected by the idea of totalizing socialist planning. Such planning is the height of productionist metaphysics with its ontology of effective control of all social movement in the realm of politics. The “secure protection for freedom and property” (sicheren Schutz für Freiheit und Eigentum, LuL. p. 23) has become merely an example for “law in the material sense” (Gesetz im materiellen Sinne, LuL. p. 25) which, interestingly, is modified into an understanding of “law as ‘interference with the citizen’s freedom and property’” (Gesetz als ‘Eingriff in Freiheit und Eigentum des Staatsbürgers’, LuL. p. 25, my emphasis). From the liberal conception of the state as the necessary instance to protect the citizen’s freedom and property, one has now degenerated, in German legal positivism, into a formal, legalistic understanding of the state’s legitimacy as a “seamlessly closed” procedural system of law-making by parliament. Interference with individual freedom and private property is now legitimated if only the formal, rather than freedom-securing, rules of play of the parliamentary power struggle are adhered to.

The socio-ontological birth of the state in the liberal conception as the necessary power to protect the interchange of free individuals among each other in estimative power interplay is also the unfortunate hour of birth of its ugly twin, namely, the interference of state power with its citizens’ freedom and property. This interference is immediately necessary for the state’s very existence; the citizens’ freedom must be restricted for the sake of the defence and security of the state which is charged not only with defending the country against invasion and outside interference but also with its subversion from within through undermining the state’s institutions entrusted with upholding the society’s way of life and its mode of government. Furthermore, and even more prosaically, interference with the citizens’ property is immediately necessary to finance the state’s very existence; the state is legitimately empowered to raise taxation, albeit with the democratic caveat of ‘no taxation without representation’. Even a minimal state entrusted with the protection of individual liberty and private property has to interfere with private property to raise the taxation to finance the operation of its judiciary and police force. To this is added, at the very least, the taxation necessary for the armed forces and intelligence services. It is therefore not coincidental that from its inception, liberal thinking is concerned with the struggle of civil society against the government’s overreach in levying taxes. Such scrutiny and struggle is a hallmark of a liberal society.

It is therefore consistent that Schmitt employs two quite different formulations for the state’s core role: both “protection of” and “interference with” individual freedom and private property. This ambiguity lies at the essential core of the state as the instance of superior political power. It is the dilemma of sociated human being itself: human being can only be free if individual freedom in its power interplay is protected, but the very protection of individual freedom requires the individual’s submission to a superior state power. Once an institution is legitimately endowed and entrusted with a superior social power, and given that any social power — including especially its bearers as ambitious whos seeking glory or at least some sort of who-radiance from their hold on power — tends toward a self-augmenting transgression of its limits, i.e. toward self-aggrandizement, the problem becomes how it can be controlled by a society composed of freely sociating individual citizens. How can it be trusted, when the essential tendency of all social power is to augment itself, if only by a creeping process of hardly noticeable encroachment?

The “Eingriff” to which Schmitt repeatedly refers can be rendered in English both as “interference” and “encroachment”. “Law as ‘encroachment on the citizen’s freedom and property” is a much more sinister and insidious affair than the state’s legal “interference with the citizen’s freedom and property”, for the state’s power has the inexorable tendency to grow and encroach upon individual liberty and private property, and that in the name of the universal good of society, especially in a society such as Germany with its long history of subjugation to rule from above. This encroachment is enabled by the above-mentioned essential ambiguity of the state. Such ambiguity can only be challenged in favour of protecting the rules of play for sociating interchanges when the ethos of fairness in such mutually estimating power play has taken root historically in a people, which was hardly the case in Germany. The ethos of fairness is the basis from which a people defends itself in struggles against incursions (another possible translation of “Eingriff”) of state power.

Apart from the “citizen’s freedom and property” degenerating to the status of merely an example for material law, according to Schmitt, German legal positivism understood “law in the material sense” alternatively as a “legal norm [...] ‘that is supposed to be right for everyman’” (Rechtsnorm [...] ‘was rechtens sein soll für jedermann, LuL. p. 25) which Schmitt paraphrases as “a universal, enduring rule” to be clearly distinguished from a “mere command or mere measure” (...das Gesetz etwa als eine allgemeine, dauernde Regel von bloßem Befehl oder bloßer Maßnahme deutlich abhob, LuL. p. 25). But this understanding of material law is itself formal and posited from above, i.e. by the Obrigkeit or higher authorities. It concerns only the formulation of law as universally applicable to the abstract citizen-person, guaranteeing abstract equality before the law and insofar, at least, rescuing the individual from an arbitrariness of state power directed against a particular person. Nevertheless, in legal positivism, the protection of individual freedom in the interplay of civil society, as the ultimate source of all freedom, has been lost (or was never present) as the inviolable content of law. Law has become its own Unwesen, its own degenerate essence.

Schmitt does not especially lament that individual freedom has been lost in the formalistic legal positivism embodied by the parliamentary law-making state. His aim is merely to coolly attack an “absolutely ‘neutral’, value- and quality-free, formalistic-functionalist idea of legality without content” (absolut ‘neutral’, wert- und qualitätsfreie, inhaltslos formalistisch-funktionalistische Legalitätsvorstellung, LuL. p. 27; case-endings modified ME) in favour of proposing the “recognition of substantial contents und powers of the German people” (Anerkennung substanzhafter Inhalte und Kräfte des deutschen Volkes, LuL. p. 97) to be revived by rethinking and strengthening the second, principal part of the Weimar Constitution. This renewed intervention (Eingriff) of the state he announces by proclaiming at the end of his pamphlet, “...thus the decision must be made in favour of the principle of the second constitution and its attempt at a substantial order”, (...so muß die Entscheidung für das Prinzip der zweiten Verfassung und ihren Versuch einer substanzhaften Ordnung fallen. LuL. p. 98 ), although he concedes, aligning surprisingly for a final moment with German political liberalism, that “what lay [...] in Friedrich Naumann’s intention [...] still had more of a connection with the essence of a German constitution than the value-neutrality of a functionalist majority system” (was [...] in der Absicht Friedrich Naumanns lag, [...] hatte doch noch mehr Beziehung zum Wesen einer deutschen Verfassung, als die Wertneutralität eines funktion-alistischen Mehrheitssystems, LuL. p. 98).

Schmitt rightly points out that the formalistic parliamentary legality system “whose procedures and methods want to be open and accessible to various opinions, tendencies, movements and objectives” (dessen Verfahren und Methoden verschiedenen Meinungen, Richtungen, Bewegungen und Zielen offenstehen und zugänglich sein wollen, LuL. p. 29) tends toward a state encompassing “tasks of a state turning toward totality that becomes economic state, welfare state and much more besides” (Aufgaben des zur Totalität sich wendenden Staates, der Wirtschaftsstaat, Fürsorgestaat und vieles andere wird, LuL. p. 95). Without the kernel of individual freedom (exercised in free, civil, estimative power interplay) as a protected core of and inviolable limit to state power, signified by the word ‘private’, and enshrined in and protected by a constitution, the parliamentary democratic law-making state becomes total; it envelops the private sphere, intervenes in the economy and cares for its people according to generally applicable laws that are legitimate only insofar as they have been passed and promulgated according to the formal procedures and power play of a democratically elected parliament.

Any party winning a majority in parliamentary elections, thus voted into power by the electorate, becomes the government and is then in the position to ‘legitimately’ posit what it wills as law and even to override individual freedom and property rights in doing so. The total state encroaches on liberty under the ‘legitimate’ cloak of formalistic, procedural parliamentary-democratic legality and in the name of ‘social justice’ to secure the ‘social fabric’. Such a total state is not merely a construction situated in the first part of the twentieth century, but is still with us, especially as a way of political thinking called social-democratic, i.e. as a way in which the constitution of a polity shapes up and presents itself to the mind.

Schmitt’s critique of the Weimar Constitution aims above all at what he sees as an incongruity between its first and second parts. (Here it cannot be our aim to assess whether Schmitt’s account of the Weimar Constitution in particular is adequate. We are interested only in his thinking on an adequate state and its constitution per se.) “The Weimar Constitution is literally split between the value-neutrality of its first main part and the value-fullness of its second main part.” (Die Weimarer Verfassung ist zwischen der Wertneutralität ihres ersten und der Wertfülle ihres zweiten Hauptteils buchstäblich gespalten. LuL. p. 52) An attempt is made — unsuccessful in Schmitt’s judgement — to paper over this crack by means of (mainly two-thirds) qualified majorities that are supposed to grant the second part of the constitution a higher status by modifying or ‘supercharging’ the formalistic, arithmetic voting procedures of simple majorities applicable to the first part.

The simple majority principle for gaining political power and making laws becomes more elaborate and restrictive in an attempt to protect ‘higher’ values, a rule of democratic play still widely esteemed and employed today. But for Schmitt, this more elaborate calculation of majorities does nothing to resolve the inherent contradiction. Any restriction to the principle of legality and legitimacy through simple majorities in the legislature by securing, by means of qualified majorities, certain contents such as the institutions of “marriage”, the “exercise of religion” or “private property” (LuL. p. 48) is said to represent a contradiction within the constitution and “gross and provocative breaches of the constitution” (grobe und aufreizende Verfassungswidrigkeiten, LuL. p. 51). It may indeed be conceded that a merely more complicated arithmetic of majorities for hindering alteration to certain material rights does not do justice to these ostensibly higher values. In Hegelian terms, something infinite is thus made merely finite, or the untouchable and inviolable ontological dimension of freedom is made ontically manipulable. The inviolability concerns the singularity of individual human freedom-in-interplay, which can never be subsumed beneath, or finally ‘closed together’ with, the universal without doing socio-ontological violence to it (cf. Chapter 12).

Why, however, cannot certain values of living together, constituting a cherished ethos, be placed directly on a higher constitutional plane than the laws that can be made by the party holding political power and protected by “higher instances and organizations superior to the ordinary law-maker” (höhere, dem ordentlichen Gesetzgeber übergeordnete Instanzen und Organisationen, LuL. p. 59) such as a constitutional court whose core task it is to protect the rules of play of the political power play in congruity with fundamental liberties of civil society, which are rules of play rather than substantial? Why should it be an insuperable problem that, to protect civil freedoms and thus guarantee the (socio-ontological) form of a free civil society and its content, viz. the metabolism of fair power interplay, “elements of a juridical state break in which become active in various ways, but mainly by judges examining the material legality of ordinary laws” (dringen Elemente eines Jurisdiktionsstaates, die sich auf verschiedene Weise, hauptsächlich durch richterliche Prüfung der materiellen Gesetzmäßigkeit von ordentlichen Gesetzen [...] betätigen, LuL. p. 62)? Why should the existence of a constitutional court as “an extraordinary, higher [...] law-maker” (einen außerordentlichen höheren [...] Gesetzgeber, LuL. p. 62) — which, as Schmitt notes, as element of a “juridical state”, always has the “conservative tendency of any judiciary” (konservative Tendenz einer jeden Rechtsprechung, LuL. p. 12 case endings modified ME) as “the right means to preserve the social status quo” (das richtige Mittel zur Konservierung des sozialen status quo, LuL. p. 12) — to preserve core civil freedoms represent a “rift in the parliamentary law-making state” (Riß des parlamentarischen Gesetz-gebungsstaates, LuL. p. 62)?

Surely it cannot be merely a matter of preserving the definition of a pure parliamentary law-making state vis-à-vis the pure typological definitions of the “juridical, governing and administrative states” (Jurisdiktions-, Regierungs-und Verwaltungsstaaten, LuL. p. 10). Perhaps it is the fact that the existence of a separate, higher instance for examining the legality of laws passed by parliament introduces a separation of powers that disturbs or destroys the state’s organic unity. But the separation of powers and the so-called checks and balances of a liberal democratic state have long been essential parts of liberal thinking on how political power is to be divided and thus clipped in favour of preserving the citizens’ sacrosanct private sphere and the individual freedoms exercised in the interplay of civil society. And, as we have already noted, Schmitt pleas at the conclusion of his pamphlet for the consistent strengthening and rethinking of the second part of the Weimar Constitution that contains substantial, ‘higher’, “inviolable” values that amount to incursions into the power plays of freedom in civil society.

At least with regard to the core “material rights” of individual freedoms, property rights and other civil rights (and apart from other substantial values such as “marriage” and the “freedom of religion”), Schmitt cites a reputed legal expert of the time, R. Thoma, who claims that “resolutions which suppress the freedom of conscience or ‘do violence to any of the other principles of freedom and justice held sacrosanct by the entire civilized world today — with the exception of Fascism and Bolshevism —’ can be unconstitutional despite having achieved a majority required to change the constitution” (Beschlüsse, welche die Gewissensfreiheit unterdrücken oder ‘irgendeines der anderen Prinzipien der Freiheit und Gerechtigkeit unter die Füße treten, die in der ganzen heutigen Kulturwelt — mit Ausnahme des Faschismus und des Bolschewismus — heilig gehalten werden’, trotz verfassungsändernder Mehrheit verfassungswidrig sein können, LuL. p. 50). Schmitt comments, “here at least, the civil legal system itself with its concept of law and freedom is still sacred; liberal value-neutrality is regarded as a value and the political enemy — Fascism and Bolshevism — is openly named” (Hier ist wenigstens noch das bürgerlich-rechtliche System selbst mit seinem Gesetzes- und seinem Freiheitsbegriff heilig, die liberale Wertneutralität wird als ein Wert angesehen und der politische Feind — Faschismus und Bolschewismus — offen genannt, LuL. p. 50).

If Schmitt opposes the arithmetic, procedural formalism of the democratic-parliamentary law-making state based on a competitive political power game of building majorities and pleas instead, as we have noted, for the constitutional “recognition of substantial contents und powers of the German people” (Anerkennung substanzhafter Inhalte und Kräfte des deutschen Volkes, LuL. p. 97), then it has to be considered whether the “liberal value-neutrality”, whose essential tolerance allows a plurality that resists unification, is itself a value which, although abstractly universal, is nonetheless weighty enough for providing an anchor for the life of a people (not only the German people) that protects (the insubstantial power play of) civil society from state interventions and encroachments. In fact, Schmitt proposes “another distinction” (eine andere Unterscheidung, LuL. p. 60) “between states with a constitution restricted to organizational-procedural regulation and universal rights of freedom and other states whose constitution contains extensive material-legal stipulations and assurances” (von Staaten mit einer auf die organisatorisch-verfahrensmäßige Regelung und auf allgemeine Freiheitsrechte beschränkte Verfassung, und anderen Staaten, deren Verfassung umfangreiche materiell-rechtliche Festlegungen und Sicherungen enthält, LuL. p. 60) Constitutions of the first kind are further characterized as a “constitution that does not contain any material-legal regulation of substantial extent but a fundamental rights part that guarantees the civil sphere of freedom in general and as such is distinguished from an organizational part that regulates the procedure for how the state’s will is formed” (Verfassung, die keine materiell-rechtliche Regelung wesentlichen Umfangs enthält, sondern einen Grundrechtsteil, der die bürgerliche Freiheitssphäre im allgemeinen gewährleistet und als solcher einem organisatorischen Teil, der das Verfahren staatlicher Willensbildung regelt, gegenübersteht, LuL. p. 59).

This is in line with Thoma’s above-quoted claim which, however, Schmitt has criticized just a few pages before. Is it not possible for a (minimal, non-interfering) state to be based ‘materially’ on a constitution which in the first place protects the citizens’ ‘sacrosanct’ private “sphere of freedom in general”, leaving the putatively “substantial” shaping of social life to the interchanges and interplay of a civil society itself that is free, but not coerced, to value ‘privately’ the custom of marriage or certain religious beliefs, etc. and have them formally protected as aspects of civil freedoms for those particular individuals who cherish these ways of ethical life in marriage and religious belief? Individual freedoms would then be protected against the “contentless” formalism of parliamentary law-making with its power struggle focused on the calculation of majorities. They would even be protected against the state’s “general reserved right to override a universal right to liberty” (allgemeinen Vorbehalt gegenüber einem allgemeinen Freiheitsrecht, LuL. p. 59 case endings modified ME) and to change the constitution “in favour of substantially defined particular interests and objects worthy of protection by fixing material rights and the properly acquired rights of particular groups [such as public servants, ME] under constitutional law” (zugunsten inhaltlich bestimmter, besonderer Interessen und Schutzobjekte, unter verfassungsgesetzlicher Fixierung materiellen Rechts und wohlerworbener Rechte besonderer Gruppen LuL. p. 59).

Why should the state have the right to override individual liberties? Only in emergency situations of extreme danger, and temporarily? Why should the state’s servants, its Beamten (‘Staatsdiener’, state-servants as opposed to the Anglo-Saxon understanding of state employees as ‘public’ or ‘civil servants’) enjoy special privileges and protection from the vicissitudes of living? Why is it not enough for the interplay of civil society itself to bring about of itself the ‘values’, i.e. valued, customary practices and ethical ways of living, under the state’s universal protection of the citizens’ freedom? Why do ‘material values’ of a people have to be posited and positively instituted and enforced by state power, even at the cost of restricting and denying individual liberties, including free economic exchanges and shaping one’s own private life, according to fair rules of play? Why should the state with its superior political power be needed as the site for nurturing and guarding the positive values of a people beyond its civil, individual freedoms if these positive values are not already rooted of themselves in the ethical usages of civil society itself? Why should the universal protection of civil freedoms as the state’s chief role and raison d’être amount merely to a formula for nihilism lacking “substantial contents und powers” of a people?

The interplay of civil society itself in which the members of society vie with each other, showing off, acknowledging and estimating each other as who they are, especially in having their abilities monetarily valued, is a social metabolism that of itself brings about diverse customary ways of living that can gain dignity and be held dear by those living in and through them. It does not require the state to explicitly and positively value certain ethical ways of living (such as marriage) over others (e.g. companionships, gay and lesbian relationships), but rather, the state’s role is only to guarantee the room for play that enables this metabolism of ethical life, which includes also controversial interchange in civil society over cultural issues of custom, to bring about its own, ever-changing outcomes.

Apart from pointing out that the Weimar Constitution contains a “second” or “counter-constitution” (Gegen-Verfassung, LuL. p. 81) in its second part that in effect brings into play a second, judicial law-maker next to the parliamentary law-maker with its “seamlessly closed” system of procedural legality, Schmitt also draws attention to two further candidates for a constitutional law-maker with a foothold in the Weimar Constitution, namely, a direct, plebiscitary democracy and an extraordinary dictatorial law-maker empowered to decree measures as laws. This makes the constitution a very messy, highly contradictory document in Schmitt’s assessment. “As this constitution currently presents itself, it is full of contradictions.” (So wie diese Verfassung vorliegt, ist sie voller Widersprüche, LuL. p. 98) The dictatorial powers given to the “extraordinary law-maker” (der [...] außerordentliche Gesetzgeber, LuL. p. 76f) under Article 48 of the Weimar Constitution allow this law-maker to suspend certain basic constitutional rights, “including in particular personal freedom (Art. 114) and property (Art. 153), the core of the bourgeois state based on the rule of law” (darunter insbesondere persönliche Freiheit (Art. 114) und Eigentum (Art. 153), der Kern des bürgerlichen Rechtsstaates, LuL. p. 75). “The ordinary law-maker can only interfere with fundamental rights by virtue of the privilege reserved for law, but he cannot suspend them. The extraordinary law-maker, by contrast, can do both and is [...] distinguished from the ordinary law-maker in a peculiar way and superior to him.” (Der ordentliche Gesetzgeber kann nur vermöge des Gesetzesvorbehalts in die Grundrechte eingreifen, er kann sie aber nicht außer Kraft setzen. Der außerordentliche Gesetzgeber dagegen kann beides und ist [...] auf eigenartige Weise vor dem ordentlichen Gesetzgeber ausgezeichnet und ihm überlegen, LuL. p. 77) That the Weimar Constitution was shaky and not “safe from dictatorship” (diktaturfest, p. 79) was certainly a well-founded cause for alarm at the time, but this anomaly has to be compared with the other lawmaker, the sovereign people itself, envisaged by the constitution that at first glance seems to offer a very appealing, irresistible prospect.

It would seem to be the highest form of legitimacy of the state and its laws when the people itself presents itself as law-maker. Then it is the will of the people itself in a direct vote that lays down the law. Law becomes a product of will, the will of those themselves who are to be ruled by the law. In Hegelian terms, das Allgemeine (the universal) degenerates to that which is allen gemeinsam (common to all) in a common will, albeit a common will ascertained merely empirically by majority votes. Schmitt points out that the democratic plebiscitary elements of the Weimar Constitution clash with and contradict its primary, formally procedural, representative parliamentary law-making part. Be that as it may, here I consider only the thought or idea ( ἰδέα, a ‘look’ of being) of direct plebiscitary democracy as the ultimate legitimate form of state for the government of a free people. The “legality system of the parliamentary lawmaking state” (das Legalitätssystem des parlamentarischen Gesetzgebungs-staates, LuL. p. 92) competes with “a plebiscitary-democratic legitimacy” (einer plebiszitär-demokratischen Legitimität, LuL. p. 92), and the latter can easily come out on top in the pre-ontological conceptions of a people regarding its freedom in which government is reconciled with freedom, thus legitimizing political power.

Even though representative, parliamentary democracy is well-established today as ethos in the West as the legitimate form of state and government, this by no means excludes ideas of direct democracy as enjoying high levels of legitimacy in everyday conceptions. The people is sovereign, and this sovereignty would seem ‘obviously’ to come to immediate presence in plebiscites, i.e. referendums, more perfectly than through democratic elections of parliamentary representatives. The people itself in “its quality as sovereign” (aus seiner Eigenschaft als Souverän, LuL. p. 63) is apparently the supreme instance, the “ratione supremitatis” (LuL. p. 63) for law-making. Today we could perhaps even still cite Schmitt’s statement from 1932, “And yet plebiscitary legitimacy may be the only kind of justification of the state that today is universally recognized as valid.” (Und doch ist die plebiszitäre Legitimität die einzige Art staatlicher Rechtfertigung, die heute allgemein als gültig anerkannt sein dürfte. LuL. p. 93) Today, as in 1932, democracy as a form of legitimacy of state power is regarded as the expression of the people’s will, no matter what the issue, and the people’s will exists in a referendum as the empirical expression “of the sovereign people immediately present and identical with itself” (des mit sich selbst identischen unmittelbar präsenten souveränen Volkes, LuL. p. 66), thus constituting a We that could also be aptly characterized as the ‘tyranny of the majority’. This holds true as a mode of legitimacy in everyday conceptions of democracy (often adduced in the media) even when and precisely when referendums are not an institutionalized part of a state’s constitution. Any expression of majority, collective will is then taken as somehow legitimate and binding.

There are many drawbacks in a plebiscitary democracy, and Schmitt draws attention to them. The main defect is that the questions for a referendum have to be formulated and presented to the people in a certain conjuncture whose timing is determined by the government or its leader, above all, according to the momentary mood of the electorate as assessed by the governing party’s leader, who may well be a clever demagogue. Even if this defect is overcome by constitutionally allowing petitions from the people for a referendum, the referendum’s issue cannot be deliberated upon adequately by a whole people and is borne more by swaying emotions and moods rather than by prudent deliberation, again leaving the door wide open to populist demagogy. The same objection can be made, of course, also against parliamentary elections and election campaigns in general, although with parliamentary representatives of the people, a certain mediation is inserted between the people’s will and the state’s. And the modern mass media do provide also a medium of deliberation of sorts, invariably shying away from any deeper questioning by invoking all the while the superficial, sham we of democracy with its average understanding supportive of the status quo. But even if these objections and the impracticability of government by plebiscite are regarded as surmountable, there is a deeper-lying, essential defect in delivering the final decision over state power and its exercise into the hands of the people’s plebiscitary will.

Namely, the state with its superior legislative and governing power can only be justified if it is government under the rule of law, and law in the first and fundamental place — that is, according to its socio-ontological essence — is the law that protects the “life, liberty and estate” of its individual citizens in their estimative power interplay with one another in civil society. This law, which is higher than empirical will and rests upon a socio-ontological insight into human being itself as individually free-in-sociation (in all the senses developed in preceding chapters), must not be surrendered even to the people’s sovereign will as it is expressed through majorities that come about in referendums, for this majority will is not per se in accord with (the socio-ontological concept of) freedom. If the people’s plebiscitary will were to hold sway, there would be no limit at all to state power, and the state could legitimately, in the name of the will of the majority, interfere with and encroach upon the freedom of its individual citizens, say, by granting a demagogue leader even more constitutionally guaranteed power (as has happened more than once in the past century). The sovereign people’s will would then lead inevitably to a total state based on the tyranny of the more or less whimsical and swayable majority, that knows no bounds and would be legitimately empowered to invade its citizens’ privacy in the name of democratic freedom conceived as the brute will of the majority. Schmitt notes,

Es ist sogar wahrscheinlich, daß ein großer Teil der heute zweifellos vorhandenen Tendenzen zum ‘autoritären Staat’ hier [in der plebiszitären Demokratie und ihrer Legitimität] eine Erklärung findet. [...] Von weitaus größerer Bedeutung ist die Erkenntnis, daß in der Demokratie die Ursache des heutigen ‘totalen Staates’, genauer der totalen Politisierung des gesamten menschlichen Daseins zu suchen ist, und daß es [...] einer stabilen Autorität bedarf, um die notwendigen Entpolitisierungen vorzunehmen und, aus dem totalen Staat heraus, wieder freie Sphären und Lebensgebiete zu gewinnen. (LuL. p. 93)

It is even probable that a major part of the tendencies toward an ‘authoritarian state’ that today no doubt exist find an explanation here [in plebiscitary democracy and its legitimacy]. [...] Far more significant is the insight that the cause of today’s ‘total state’ or, more precisely, of the total politicization of human existence in its entirety is to be sought in democracy and that it [...] requires a stable authority to undertake the necessary depoliticizations and, out of the total state, to regain free spheres and domains of living.

At this point, Schmitt is sounding, surprisingly, very much like a true liberal. Without doubt this passage has to be read in the specific historical conjuncture of 1932, in the period of degeneration of the Weimar Republic and the empowerment of the National Socialism under Hitler with its push to extend the German Volk’s Lebensraum. But it also can be read from a suitable abstracting distance as a socio-ontological parable of the absolutization of the will of the sovereign people even against a higher concept of inviolable freedom of estimative power interplay among whos. The total politicization of all spheres of life amounts to the encroachment of the political power game into civil society with its mutually estimative social and economic power plays among the private members of civil society, including also incursion into the personal private sphere, with a resultant dissolution of private lives, in both senses, in the political sphere.

The abstract personhood of each individual member of civil society is an injunction against interference from others, especially from the state. Such an abstract injunction leaves a sphere of freedom of movement to be shaped by the individual’s will in exercising his or her various powers according to abstract rules of play called abstract right. Any further concretion from above of how this private sphere is to be shaped amounts to an incursion into it. The only “stable authority” it requires to guarantee “free spheres and domains of living” is a genuinely liberal state for which individual rights and freedoms are sacrosanct and untouchable, including by any incursions of the people’s plebiscitary will.

13.2Democracy, freedom and justice: A recapitulation

Today in the West, democracy and freedom are generally (mis)conceived and (mis)treated as synonymous in popular discourse. The entire pathos of human freedom can be claimed and mobilized in any struggle for democratic rights. Yet, as we have seen, democracy is merely a form of government in which the citizens of a country are able to freely elect those who are to govern them from a selection of politicians currently available who are vieing for political office. The freedoms required for this are the right to free and fair, periodical elections and the right of free speech, including the right to free media of public opinion, able to criticize the government of the day and enable debate over who is best to govern. The issue of human freedom itself, however, goes much deeper than the question of how a people is to be governed and by what institutional arrangements; it concerns the question of human being itself, as investigated in depth in the present inquiry.

Democratic government does correspond to the concept of freedom itself, but only a facet of it. Freedom is not a mere concept, i.e. something thought up by human beings, philosophical or otherwise, but denotes rather the socio-ontological structure of human being itself as ineluctably free in its peculiar sociating movement of estimative power interplay among whos. The freedom of human being means that human beings are self-moving from a point of origin within themselves, where these movements are guided by an understanding of beings in their being and also affected by an attunement with the 3D-temporal clearing as a whole. Understanding and attunement are the two originary modes in which human being itself is exposed to the temporal openness of being, i.e. of presencing and absencing. Although each human being is always already cast into situations and circumstances not of his or her own making, to be a point of origin governing your own movements means that you are also a zero-point, a point of spontaneous nothingness in a conjuncture of yesterness and future whence you cast your own life-movements, in power play with others, according to how the world shapes up for you in your attuned understanding. To be a free point of origin and individual source of power implies therefore that freedom itself proceeds from this point of spontaneity that represents a hiatus between having already been cast and self-casting, so that, in particular, it is ultimately futile to attempt to explain human actions by ‘blaming’ them on temporally precedent causes. Rather, in casting yourself into the future from out of your own spontaneity of its presencing now, you are responsible for your self, i.e. for your own self-casting of your own life.259

Moreover, each human being’s understanding of the world to which it is exposed is both its own, individualized understanding and also an understanding which it inevitably shares with other human beings. It is individualized because understanding passes through each human being individually, and a world shapes up in general and in specific situations always according to an individual perspective on the world from an individual situation. The understanding of the world, however, is also ineluctably shared because the way a world shapes up for human understanding always comes about in 3D-historical time, by virtue of which we can sensibly talk of the understanding of a particular period or a particular age in particular parts of the globe. Individual understanding, which is how an individual holds the world to be, is then not entirely unique and an invention of that individual, but only a, perhaps highly idiosyncratic, combinatorial constellation of world-understanding in an age which is also attuned, within a certain range of attunements, with the mood of that age. There is no way in which an individual can escape its historical time. Within the understanding of an age in a certain part of the globe (and we have been inquiring into the conceptions underlying modern Western societies), the socio-ontological components of that understanding do not form an entirely consistent totality, but are also partly contrary to one another.

Thus, for example, as has been shown, there is contrareity in the very conceptions of human being itself which give rise to opposed factions of understanding among (groups of) human beings themselves which also assume the guise of opposed Weltanschauungen and political ideologies. There is a contradiction and tension in human being itself, known already to the Greeks, between an urge for freedom and a need for security, i.e. between a desire to stand on my own feet, taking care of myself and those close to me without outside interference and being the source of my own, freely determined life-movements, on the one hand. On the other, there is a willingness to gratefully submit to a stronger power for the sake of safety and of being led and cared for. Freedom and security thus partly go hand in hand, for there can be no individual freedom without protection of that freedom by a superior power, and partly they are diametrically opposed when freedom is exchanged for security in submitting to a superior will, whether it be that of a state or some other acknowledged authority.

Insofar as you accept your freedom as a point of spontaneous nothingness from which you cast your very own life movements, and do not seek shelter in merely obeying others or a superior instance, you are the source of your self-movement by exercising your powers of all kinds, including the power of reified value that you have acquired through interchanges. Your primary and elementary powers, however, are your abilities. Such abilities are expressed primarily by bringing about changes in things, which is productive activity in the broadest sense, and, in a derivative sense, by having them estimated and valued in interchanges with others in which your abilities are exercised for the benefit of another in exchange for something else of value.

The socio-ontologically originary sociating, mutually estimating power-interchange among human beings is their exercising, by agreement, their various abilities for each other’s benefit. This must be regarded as the core of the sociating movement that constitutes society and also as the most elementary expression of human freedom as social, sociating freedom. Even the interchange of speaking with one another must be viewed in its elementary sociating function as always already embedded in pragmatic exchanges for each other’s benefit. An individual exercises its freedom at first and for the most part in having its abilities esteemed and valued by others in ongoing, daily processes of estimation. Because abilities are powers, this process of estimation is a power play and society is constituted above all through the interchange of powers in ongoing processes of estimation and valuation. Because each of the participants in such interchanges is a free point of origin of its own actions, the sociating interplay itself is groundless, in contrast to the grounded nature of productive activity through the exercise of abilities in the primary sense for which a source of power exercises its power one-sidedly over an object.

Each individual only freely casts its own self out of spontaneity and comes to a stand in having its self reflected back estimatively from the world, and this takes place above all through having one’s abilities valued and esteemed by others. My self-casting thus partly depends upon the validating reflections from others, and is partly independent of such validation insofar as I truly have ability as the source of my own able or excellent self-movements. I becomes who I am essentially through the mirror play of having my abilities, of whatever kind, estimated and valued, and my social status as somewho depends on the social estimation of my powers — for better or worse —, at whose core are my individual abilities and lack thereof. Because whoness is a social interplay of reflection in an ongoing mirror power play through which my spontaneity of individual freedom attains a more or less transient stand in the world that is constantly being regenerated and re-formed through the mirror play, it is not of the same essence as whatness, which consists in a substantiality of standing presence.

Such a sociating interplay of mutual estimation takes place on large scale through markets of all kinds and mediated by reified value, which serves both directly and indirectly as the sociating medium of abstract, quantitative estimation and valuation of individual abilities of all kinds. For the products of the exercise of human abilities of all kinds, money, as price, serves as the value-mirror. This is the interplay of civil society, which is the locus par excellence for the play of social freedom, and is also characterized by the competitive vieing among powers, both primary abilities and derived powers such as accumulated wealth and political influence. Civil society is therefore as the play of freedom simultaneously a rivalrous power play. In the power play, individuals strive both to gain the benefits from the exercise of others’ abilities, which amounts to the enjoyment of what good living offers, and also to have one’s own who-stand in society affirmed, esteemed and even also boosted. The power play is therefore a vieing and striving for what one gains and then has, and also for who one is estimated to be in the mirrors of social estimation. Hence it is twofold, but both are value interplays.

Because the interplay of civil society is a rivalrous power play both against and with one another, it gives rise continually to rivalry and conflicts and can also become ugly in countless different ways. The power play must be played out in such a way that each player is not disadvantaged by others’ playing unfairly, for such unfairness detracts from gaining one’s fair share in the twofold sense. Fairness is the pith of justice in the interplay of freedom that is civil society, and injustice is the ugliness of unfairness. What constitutes fair play becomes practised in civil society in habitual, customary usages which form the core of civil society’s ethos. The ethical æther of civil society is fairness, which covers a gamut of phenomena such as civility, decency, uprightness, keeping one’s word, reliability, etc. etc. In the atmosphere of an ethos of fairness, trust can be engendered, which is the life-blood of the civil society’s metabolism. The ethos of fairness is a socio-ontological ‘look’ of freedom itself, now lived, practised and valued by a plurality of human beings sociating regularly with one another. It is both a way of understanding one’s own and other’s moves in the interplay, and also a universally, socially accepted way of interchange. Such fairness includes also indifference to others insofar as we have so far had no interplay with each other and leave each other also free to pursue one’s own course in life on one’s own responsibility.

The ethos of fairness of the power play in civil society, however, does not suffice to cope with and correct the numberless ways in which the interplay can become unfair and ugly. For this, a superior power, government, is necessary to adjudicate conflicts and remedy the abuse of individuals’ powers. The government, too, is an habitual, practised form of social living empowered to regulate the power play of civil society to ensure fair play among free players. This is the core of liberal political power, and it is legitimate in being recognized and affirmed by the members of civil society, who readily submit to it, insofar as the exercise of this political power accords with, and is also for the sake of, the ethos of a fair play of powers. Not only is government recognized as legitimate, but it is truly in accord with freedom-in-power interplay insofar as its exercise of power is directed at securing and enhancing the fair play of civil society.

Although government requires also the construction of a state apparatus with various organs, along with resources from civil society in the form of taxation, its willed exercise of power for ends other than the securing of fair play, such as providing infrastructure, only remains in accord with freedom for as long as the interplay is not interfered with or, if it is interfered with, this interference is justified by political argument on the basis of it being necessary for the good of, and not directed against, civil society, unwarrantedly restricting its freedom of movement. Such justification must take place in public debate mediated by media in which civil society is also able to criticize government and the workings of the various organs of the state apparatus. Although government has, and must have, superior power to govern, and this is legitimated in the eyes of civil society, this power must remain open to the scrutiny, criticism and hence the influence of civil society if it is to still accord with freedom.

The superior political power of government is returned in a certain way to civil society itself to complete the circle of political power through the government itself being subject to periodical elections by the populace, which now, in relation to government and state, forms the citizenry, concerned not only about its particular self-interests, but also about universal questions concerning the social good as a whole and the preservation of individual freedom. The democratic form of government enables the submission of the people to government to be reconciled with freedom itself, which ultimately resides in each individual. The scrutiny of government is thus paired with the power of the electorate also to rid itself of those in government who abuse political power or exercise it in ways that fail to be justified to the electorate in political debate, perhaps because of sheer incompetence of individual politicians in office, especially government ministers. Political debate is an essential aspect of the political power play, also a variant of the mirror play of estimation, through which government justifies (or fails to justify) its actions and also legitimates (or fails to legitimate) itself to the opinions held in the electorate. Political debate is waged above all through the exercise of rhetorical powers of whatever kind, and such an interplay of rhetorical powers, both in parliament and in the various public media, is a paradigmatic expression of freedom, which also has the power to change government policy and even the government itself.

The media thus have only a limited role, for their discourse is inevitably that of average everyday understanding which is ‘always already’ pre-understood by readers, listeners and viewers. Political debates are therefore carried on in this kind of average discourse that understands via numerous clichés that are endlessly circulated in what ‘people’, and especially, what ‘talking heads’ in the media say. The status quo is thereby upheld since only certain kinds of ‘comprehensible’ discourse are admitted to the media, and also only certain topics and perspectives on topics that have already been selected by the media themselves as ruts of understanding along which discourse can run smoothly. Other topics and questions are excluded from the start simply because they are unfamiliar, therefore placing demands on the attentiveness of both media functionaries (journalists, editors, etc.) and media recipients (readers, listeners, viewers). This results inevitably in a blandness of the media that shores up the status quo, and also a censorship due to their subjecting all content to the criterion of being always-already-understood. This censorship is reinforced and effected via the filter of selecting those media persons (producers, editors, etc.), who, through the averagness of their own understanding, guarantee a pandering to the public’s average understanding instead of widening or challenging it. Any ‘singularity’ in thinking is filtered out by averageness. Challenges to the ways ‘people’ think are invariably unwelcome in the media, and editors seek interlocutors from civil soceity (especially academics) who speak in terms ‘people can understand’ and therefore do not have much to say at all. All the phenomena addressed in media discourse are already precompre-hended by widespread preconceptions through which media can ensure their successful acceptance by their respective audiences.

Government can only be reconciled with freedom if civil society itself is legitimately and constitutionally empowered to scrutinize government and the organs of state. The division of powers within the organization of the state itself, exercised in certain publicly visible, institutional usages, is a further means for preventing the absolutization of superior political power and for bringing it back under the surveillance and control of civil society. The constitution, rights of scrutiny, public debate over policy and legislation, and so forth, all become part of the habitual practices of the political life of a democratic society, and constitute together the ethos of democratic government which itself is in accord with freedom, but only so long as the ethos of fair play in civil society itself is respected and not encroached upon, clipped or stifled for the sake of other state-posited, ‘substantial’ aims. Even the electorate itself may be, and often is, tempted to truncate the free and fair power play of civil society for the sake of seeking security under the paternalistic care of the state’s superior power. Instead of being overtaxed by the challenges of freedom, the individual then prefers to be overtaxed by the state, especially when stronger players pay more taxes. In doing so, human beings fail to live up to their own essential freedom, which is of its nature challenging. This is a contradiction in a democratic society which can never be finally resolved, and whose tension always remains in play in the ongoing political power play.

Freedom is movement, namely, at its core, the free and fair movement of the multifarious, rivalrous, mutually estimating power interplays of civil society itself. Justice consists fundamentally in the fairness of this metabolism of interchanges of all kinds which, itself, can only be approximated, but never finally attained in standing presence, through unceasing conflict and political power struggle over the truth of issues of justice which hover perennially between disclosure and obscurity, and split into rival perspectives. Already in a fragment from Heraclitus we read: εἰδέναι δὲ χρή τὸν πόλεμον ἐοντα ξυνόν, καὶ δίκην ἔριν, καὶ γινόμενα πάντα κατ’ ἔριν καὶ χρεών. “It is necessary to know that fighting is common [to all] and justice is strife and conflict, and everything comes about by strife and conflict, and that in accordance with customary usage.” (Fragment 80, Diels-Kranz) The cultivation of this usage of ongoing conflict, itself a power struggle, is the ethos of justice. Accordingly, justice, too, is a dynamic, perennial power play, above all among mutually estimating, persuasive rhetorical powers, which practice is the ethically valued usage through which the in-jointness of fair interplay continually comes about for a time as a defined, understood, sometimes beautiful contour, only to slip out of joint once again. Freedom itself never finally ‘closes together’ free, singular individuality with a universal state of affairs, but, for finite, mortal human beings, always remains in play as a controversial and conflict-ridden power play, both in civil society and politically, with ever new variations of play combinations arising from players’ unforeseen moves. To be free, the individual has to be a player in these interplays of powers. In this way, freedom, at times even in its singularity under the protection of abstract rights, can be lived.