RG

IN CONTEXT

IDEOLOGY

Conservatism

FOCUS

Extrajudicial power

BEFORE

1532 In The Prince, Niccolò Machiavelli lays out the principles of sovereignty.

1651 Thomas Hobbes’s Leviathan uses the concept of the social contract to justify the power of the sovereign.

1934 Adolf Hitler comes to power in Germany.

AFTER

2001 John Mearsheimer uses Schmitt’s theories to justify “offensive realism,” where states are ever-prepared for war.

2001 The Patriot Act in the US establishes a permanent installment of martial law and emergency powers.

Carl Schmitt was a German political theorist and lawyer whose work during the early 20th century established him as a leading critic of liberalism and parliamentary democracy. Schmitt saw the “exception” (Ernstfall)—unexpected events—as a quintessential characteristic of political life. For this reason he disagreed with the liberal idea that the law is the best guarantor of individual liberty. While the law is able to provide a framework through which to manage “normal” states of affair, Schmitt argued that it was not designed to deal with “exceptional” circumstances such as coups d’etat, revolutions, or war. He saw legal theory as too far removed from legal practice and changing social norms. It was unfit to deal with the unexpected turns of history, many of which could threaten the very existence of the state. A president, he argued, is better able to guard a country’s constitution than a court, and so should necessarily be above the law. The ruler should be the ultimate lawmaker in exceptional situations.

RG

A constant struggle

Schmitt’s criticism of liberalism was directly tied to his unique understanding of “the political” as the constant possibility of struggle between both friends and enemies. He anticipated this struggle at both the international level—with feuding nations—and the domestic level—with feuding individuals. Schmitt disagreed with Thomas Hobbes’s vision of nature as being a state of “all against all,” and its implication that coexistence is impossible without the rule of law. On the other hand, he argued that liberals had done humanity, and the nation-state in particular, a disservice by promoting the possibility of a perpetually peaceful world. He saw World War I as a consequence of liberalism’s failure to recognize the possibility of enmity, and blamed liberals for both misunderstanding the true nature of politics and being insincere with regard to the true nature of the political. Under an assumption of perpetual peace and friendliness, he said, states are less likely to be prepared for the exceptional, and so risk the lives of their citizens.

"The exception is more interesting than the rule. The rule proves nothing; the exception proves everything."

Carl Schmitt

Schmitt argued instead that the possibility of enmity always exists alongside the possibility of alliance and neutrality. He envisioned the individual as potentially dangerous; and consequently this provides a constant political danger, with the ever-present possibility of war. Schmitt considered that this constant possibility should be the ultimate guide for the sovereign, who must at all times be prepared for it. The political sphere is necessarily an antagonistic world, not merely an independent domain in which citizens interact, like the realms of civil society or commerce. The law might work adequately through the courts and their associated bureaucracy under normal conditions, but in politics, exceptional conditions—even chaos—can erupt, and the courts are not equipped to make good or rapid judgments under these conditions. Someone must be entitled to suspend the law during exceptional circumstances. Schmitt claimed this was part of the sovereign’s role: he or she possesses the ultimate authority to decide when times are “normal” and when they are “exceptional,” and as such, can dictate when certain laws are to be applied and when they are not.

  By placing life above liberty, Schmitt argued that the legitimacy of the sovereign relies not upon his application of the law, but upon his ability to protect the state and its citizens. Schmitt thought that the true power of a sovereign emerges in exceptional circumstances, when decisions need to be based entirely on new grounds. It is only in these circumstances that the sovereign becomes a true lawmaker as opposed to a law-preserver, and is thus able to mobilize the population against a designated enemy. Schmitt concluded that sovereign power, in its full form, requires the exercise of violence, even when not otherwise legitimate under the law.

RG

According to Schmitt, it is up to the sovereign to decide whether circumstances are normal (when the rule of law suffices) or exceptional (when the sovereign must take ultimate authority).

Defending Hitler

The limits of Schmitt’s theory became apparent with his defense of Hitler’s policies and rise to power. Schmitt justified “the Night of the Long Knives”—when around 85 of Hitler’s political opponents were murdered—as “the highest form of administrative justice.” In Schmitt’s eyes, Hitler was acting as a true sovereign, taking matters into his own hands under exceptional circumstances that threatened the very existence of the German state. Violence against the left-wing arm of the Nazi party, as well as Jews, was justified in Schmitt’s eyes by the supposed threat they posed to the state.

"The state of exception is not a dictatorship… but a space devoid of law."

Giorgio Agamben

Schmitt’s personal support for the Nazi regime strongly suggests that, for him, the survival of the state was more important than the liberty of the individuals within it—and sometimes more important than the lives of the citizens of the state. However, this prioritization of the preservation of the state at all costs fails to take into account the fact that, just like individuals, the state also changes; it is not a monolithic entity whose character is set and forever perfect. It can—and many would say should—be questioned at any point in time.

Contemporary exceptions

Schmitt’s inability to see the radical effect of his theory, or that genocide is not an acceptable form of violence under any circumstances, led to his being shunned by the academic and intellectual world. However, in the late 20th century, a revival of interest in his work was led by various authors who saw Schmitt’s contribution to legal and political philosophy as significant, despite his shortcomings. Schmitt’s understanding of the “political,” the “friend–enemy distinction,” and the “exceptional” was used by these writers to better understand the conditions under which modern states operate and political leaders make decisions.

  US philosopher Leo Strauss built on Schmitt’s critique of liberalism, arguing that it tended towards extreme relativism and nihilism by completely disregarding the reality “on the ground”—it focuses not on what is, but on what ought to be. Strauss distinguished between two forms of nihilism: a “brutal” nihilism, as expressed by the Nazi and Marxist regimes, which seeks to destroy all previous traditions, history, and moral standards; and a “gentle” nihilism, as expressed in Western liberal democracies, which establishes a value-free and aimless egalitarianism. For Strauss, both are equally dangerous in that they destroy the possibility for human excellence.

  Italian political philosopher Giorgio Agamben argues that Schmitt’s state of exception is not a state where the law is suspended—hiding somewhere until it can be re-established—but rather a state completely devoid of law, in which the sovereign holds ultimate authority over the lives of citizens. Considering the Nazi concentration camps created during World War II, Agamben argues that the prisoners in these camps lost all human qualities and became “bare life”—they were alive, but stripped of all human and legal rights. He sees the creation of a state of exception as particularly dangerous, because its effects compound in unpredictable ways: the “temporary” suspension of the law is never really “temporary,” because it leads to consequences that cannot be undone upon the restoration of the law.

  Schmitt’s concept of the exception became particularly pertinent after 9/11, when it was used by conservatives and left-wing political thinkers to justify or denounce anti-terrorist measures such as the Patriot Act in the United States. The conservatives used the idea of exceptionality to justify violations of personal liberties such as increased surveillance and longer detention times without trial. Left-wing scholars argued against these very same practices, pointing out the dangers of suspending protections against human rights violations.

  The existence of camps such as those at Guantánamo Bay serves to demonstrate the dangers of labeling an event “exceptional” and apportioning it exceptional measures, in particular the rewriting of rules by the executive without any checks in place. More than 10 years later, the state of exception declared after 9/11 remains more or less in place, with worrying consequences that show no signs of abating.

RG

Leading Nazis were put on trial at Nuremberg at the end of World War II. Schmitt was investigated for his role as a propagandist for the regime, but eventually escaped trial.

CARL SCHMITT

Born into a devout Catholic family in Plettenberg, Germany, Carl Schmitt later renounced his faith, although elements of his understanding of the divine remained in his work. He studied law and later taught at several universities. In 1933, he joined the Nazi party and was appointed State Councillor for Prussia. However, in 1936 he was denounced by the SS and expelled from the Nazi party.

  Schmitt continued to work as a professor in Berlin, but at the end of World War II, he was interned for two years for his Nazi connections. In 1946 he returned to Plettenberg, where, shunned by the international community, he continued to study law until his death, at 95.

Key works

1922 Political Theology: Four Chapters on the Concept of Sovereignty

1928 The Concept of the Political

1932 Legality and Legitimacy

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