Carl Schmitt: Law as Politics, Ideology and Strategic Myth 2011036381, 9780415478502, 9780203125762

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Carl Schmitt

There continues to be a remarkable revival in academic interest in Carl Schmitt’s thought within politics and social theory, but this is the first book to address his thought from an explicitly legal theoretical perspective. Transcending the prevailing one-sided and purely historical focus on Schmitt’s significance for debates that took place in the Weimar Republic 1919–1933, this book addresses the actual and potential significance of Schmitt’s thought for controversies within contemporary Anglo-American legal theory that have emerged during the past three decades. These include: the critique of liberal forms of legal positivism; the relative ‘indeterminacy’ of legal doctrine and the need for an explicitly interpretative approach to its range of meanings, their scope and policy rationale; the centrality of discretion and judicial law-making within the legal process; the important role played by ideological prejudices and assumptions in legal reasoning; the reinterpretation of law as a form of strategically disguised politics; the legal theoretical critique of universalistic approaches to ‘human’ rights and associated liberal cosmopolitan ‘ideologies of humanity’, including the rhetoric of ‘humanitarian intervention’; and the limitations of liberal constitutionalism and liberalism more generally as an approach to law. In Carl Schmitt: Law as Politics, Ideology and Strategic Myth, the author provides an overview and assessment of Schmitt’s thought, as well as a consideration of its relevance for contemporary legal thought and debates. Michael G. Salter has held academic posts at the Universities of Sheffield, Birmingham, Ulster, Lancaster and Central Lancashire. His previous books include Hegel and Law (ed., 1993), Nazi War Crimes, US Intelligence and Selective Prosecution at Nuremberg, (2007) and US Intelligence, the Holocaust and the Nuremberg Trials (2 vols, 2009).

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Nomikoi: Critical Legal Thinkers Series editors: Peter Goodrich

Cardozo School of Law, New York

David Seymour

School of Law, Lancaster University, UK

Nomikoi: Critical Legal Thinkers presents analyses of key critical theorists whose thinking on law has contributed significantly to the development of the new interdisciplinary legal studies. Addressing those who have most influenced legal thought and thought about law, the aim of the series is to bring legal scholarship, the social sciences and the humanities into closer dialogue. Other titles in the Series Judith Butler Ethics, Law, Politics Elena Loizidou Evgeny Pashukanis A Critical Appraisal Michael Head Niklas Luhmann Andreas Philippopoulos-Mihalopoulos Forthcoming titles in the Series Carl Schmitt Law as Politics, Ideology and Strategic Myth Michael Salter Henri Lefebvre Critical Legal Studies and the Politics of Space Chris Butler Deleuze & Guattari Emergent Law Jamie Murray

Carl Schmitt

Law as Politics, Ideology and Strategic Myth

Michael G. Salter

First published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 A GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Michael G. Salter The right of Michael G. Salter to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Salter, Michael, 1957Carl Schmitt : law as politics, ideology and strategic myth / Michael G. Salter. p. cm. Includes bibliographical references and index. 1. Schmitt, Carl, 1888-1985. 2. Law--Philosophy. 3. Law-Political aspects. I. Title. K230.S35S25 2012 340’.1--dc23 2011036381 ISBN 978-0-415-47850-2 (hbk) ISBN 978-0-203-12576-2 (ebk) Typeset in Baskerville by Saxon Graphics Ltd, Derby

Contents

Introduction Up against Carl Schmitt

1

PART I

Law as ideology and politics

7

Chapter 1

An afterlife for Carl Schmitt?

9



Contemporary relevance?

18

Chapter 2

On politics, law and ideology

28



The politics of law and the law of politics

29



Law as an ideological practice involving depoliticisation 34



Liberal ideologies of legality



Difficulties and contradictions with liberal ideologies 51 An unduly narrow definition of law 51



Exaggerating the determinacy of legal doctrine 56



Devaluing discretion

61



Interpretative naïveté?

62



Misinterpreting the judicial role?

64



The politics of ideological depoliticisation

71



The contradictions of liberal-positivism?

76



Liberal cosmopolitan ideologies

78

36

vi Contents



Ideologies of humanity

82



Law as authority, interpretation and power

92

Conclusion

119

PART II

Schmitt on the role and analysis of myths and counter-myths

121

Introduction

121

Chapter 3

Mobilising direct political action: Sorel, myths and counter-myths

128

Chapter 4

Myths of parliamentarism

133

Chapter 5

Leviathan: a political myth misfired?

140



Hobbes as a case study of the importance of studying political myth-making

141



Correcting Hobbes: contrasting meanings of leviathan 145



The possibility of myth misfiring

146



Leviathan as counterproductive?

148



The slaying of leviathan

155



A fatal concession to liberal individualism?

157



Liberalism’s illiberal outcomes

164



Leviathan’s instructive failure?

169



Conclusion to Hobbes

171

Chapter 6

Hamlet as an instructive prototype of a political myth?

173



Hamlet as a corrective to leviathan?

173



Studying Hamlet’s implications: themes and questions

174

Myth and other cultural forms

176



Contents vii



Myth as an ethos of ethnicity?

177



Staging Hamlet’s off-stage history?

179



A Hamlet–James couplet?

183



Schism as religion

184



Hamlet signifying sovereignty in crisis?

185



Staging political theatre

186



Deciding against indecision

190



Politicising Hamlet’s depoliticisation?

191



Hamlet’s audience as co-authors?

197

Chapter 7

Political myths underpinning democracy

206



Myths of national identity

225



Dangerous political myths: Marxism, Fascism and Liberalism

236

Taking stock of general lessons: a Schmittian concept of the mythical?

248



Conclusion

264

Bibliography Index

279 290

For reasons of polemic, but also in a genuine effort to understand, Europeans now often view American policies and attitudes through Carl Schmitt’s writings during the interwar era and above all in his 1950 Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum. Whatever Schmitt’s political choices, readers have been struck by the expressive force of his critiques when applied to contemporary events: the war on terrorism as a morally-inspired and unlimited ‘total war,’ in which the adversary is not treated as a ‘just enemy’; the obsoleteness of traditional rules of warfare and recourse to novel technologies – especially air power – so as to conduct discriminatory wars against adversaries viewed as outlaws and enemies of humanity; Camp Delta in the Guantánamo naval base with its still over 500 prisoners from the Afghanistan war as a normless exception that reveals the nature of the new international political order. Martti Koskenniemi ‘International Law as Political Theology: How to Read Nomos der Erde?’ (2004) 11(4) Constellations 493)

Preface

Many people have assisted me with this project. In particular, I would like to thank my colleagues Susan Twist, Bogusia Puchalska, Ian Turner, Jo Helsby and Barbara Korth for regular and stimulating discussions of matters Schmittian. Anthony Carty, David Pan and Peter Stirk have provided valuable insights. I would also like to thank Colin Perrin from Routledge for his patience and support over many years in relation to both this work and also my earlier book US Intelligence, Nazi War Crimes and Selective Prosecution at Nuremberg, 2007. It is, however, dedicated with love to Jona Jocson, who – by being herself – has shown me what really matters.

Introduction

Up against Carl Schmitt

Unsurprisingly, this book addresses the five topics included in its title and the relationship between them: Carl Schmitt, law, politics, ideology and strategic myth, with the latter forming a major theme. It does so in relation to a number of issues relevant to both domestic and international law. This introduction provides provisional clarifications of key terms and expressions. It then discusses the rationale for my approach to Schmitt’s writings, partly through a confrontation with the difficult and vexing issues concerning this legal academic’s deplorable political choices, particularly but not only, during the first three years of the Nazi era (Koenen, 1995). The idea of ‘strategic myth’, the central theme of the second part of this study, requires preliminary explanation, discussion and illustration. The inclusion of this term in the title refers to the manner in which aspects of modern legal thinking and scholarship, still largely dominated within the West by a combination of ‘liberal’ constitutional ideologies and divergent varieties of ‘legal positivism’, rely for much of their continued legitimacy upon widespread belief in a series of ‘strategic myths’. This category, itself a subset of legally relevant myths more generally, signifies, amongst other things, deliberately created images, symbols and legends promoting specific beliefs and orientations held, in some sense, to be true. Typically, these are linked to the realisation of a particular agenda already deemed, or implicitly assumed, to be desirable. So, at this stage and for present purposes, the idea of myth can be defined initially as a story or legendary fable or, in Greek muthos, one that a cultural tradition widely recognises as exhibiting a validity and instructive normative force whose rhetorical power does not rest of demonstrations of its factual accuracy or inaccuracy (Stirk 2006: 8–13, 16). There are two main examples of ‘strategic myth’ alluded to in the title of this book. First, the highly influential legal positivist’s belief – exemplified most intensely by the majority of Hans Kelsen’s jurisprudential writings – in the non-political and strictly scientific nature of legal analysis. The second is the ‘liberal cosmopolitan’ belief in the validity and supremacy of a universalistic and abstract conception of ‘humanity’, together with its

2  Carl Schmitt: Law as politics, ideology and strategic myth

various offshoots, such as ‘humanitarian’ law, ‘human’ rights, ‘humanitarian’ intervention, and crimes against ‘humanity’. These elements will be discussed later (Zolo 1997; 2002). The inclusion of myth as a central theme of this book runs counter to aspects of modern jurisprudence, especially legal positivism and positivist varieties of socio-legal studies that consider themselves to be applying a strictly ‘scientific’, and hence objective and evidence-based, form of legal analysis. For many centuries, the latter has largely identified with a secularrationalist movement towards scientific enlightenment and modernity seeking to break the hold of traditional myths, the dominance of theology within natural law debates, and other ‘superstitions’ of various kinds, including those that underpin aspects of so-called ‘customary law’ (Fitzpatrick 1992). The burden of developing and illustrating a sustained and fleshed out conception of law as strategic myth, and thus a deliberately formulated jurisprudence of myth more generally, will be taken up in Part Two of the book as its central theme. As already mentioned, one target of this work’s criticism is those claims and strategic myths concerning law often made by the current liberal legal positivist axis. In this context, ‘legal positivism’ can be provisionally defined in Kelsenian terms as the belief that the study of law should take the form of a formal (as distinct from material) science of abstract norms; that is, the rules and principles of legal doctrine, considered purely as such. Here, the focus of, say, a legal analysis of burglary falls not on the questions of which groups tend to commit this behaviour against which groups of victims, why and under what circumstances. In order to keep the focus purely upon norms considered as such, and as abstractions from real-life instances of the application of law, such questions are expelled to the non-legal fields of criminology or sociology. Instead, the positivist research question is confined to clarifying, in an exhaustive and comprehensive manner, the precise meaning of the legal category of burglary, the express and perhaps implied rules, together with any ‘exceptions’, that determine which situations generally fall inside or outside its scope, and how this category both relates to, but also differs from, related legal norms, such as theft. We can trace this positivist approach back to the writings of Carl von Gerber and Paul Laband in Germany, and Thomas Hobbes and Jeremy Bentham in Britain. Hans Kelsen later ‘radicalised’ elements of this tradition, in the sense of developing aspects to their logical (if sometimes absurd) conclusions (Caldwell 1997: 13–16; 36–9). One distinctly liberal element of the liberal-positivist axis under scrutiny belongs to a universalistic ideological movement within international law and international relations scholarship, which will be characterised as ‘liberal cosmopolitanism’ (Zolo 1997). Taken together, and in comparison with any single rival approach, these variants of liberalism have clearly achieved considerable entrenchment and ideological domination within

Introduction 3

Anglo-American legal education, scholarship and judicial culture more generally. In setting out and generally supporting a series of Schmittian criticisms of these dominant positions, this work also seeks to challenge such domination by assisting with the task of opening up alternative approaches for coming to terms with our encounters with law. These need to demonstrate that they now embody key lessons learned from the instructive gaps, blind spots and contradictions of the liberal-positivist axis, such that they represent a cognitive advance. Through a close, but of course ultimately critical interpretation and application of Schmitt’s writings, I aim to uncover and discuss a number of mythic beliefs underpinning the ideological projects of liberal cosmopolitanism, including the latter’s reliance upon abstract universal concepts such as ‘humanity’ – together with its offshoots and concrete specifications (Zolo 1997; 2002). The general problem is that historically and socially specific content flows into the form of legal rights, but that liberalism treats this as a given, not as an ongoing interpretative construct. One result is the dubious idea of ‘inalienable’ human rights. As Chandler’s critical summary of contemporary forms of liberal cosmopolitanism subjected to Schmittian critique recognises, mythic fictions underpin this approach: Cosmopolitan frameworks inverse the grounding of liberal relationship between rights and their subjects in their construction of rights independently of their subjects ... These rights are fictitious – in the same way as animal rights or the rights of the environment or of future generations would be – because there is a separation between the subjects of these rights and the political or social agency giving content to them. The proposed framework of cosmopolitan regulation is based on the fictitious rights of the ‘global citizen’ or of the ‘human’ not the expression of rights through the formal framework of political and legal equality of citizen-subjects. (Chandler 2008: 59) Scholarly, and thus necessarily self-critical, analysis of the myths and ideological positions of liberalism must, however, both reflect upon and then take seriously, the conditions for gaining insight into these themes. It must explore any identifiable connections with tendencies towards the suppression and displacement of such insights stemming from the depoliticising transformation of ideological myths into their very opposites. That is, their mutation into apparently non-political, purely technical and supposedly ‘objective’ characterisations of the nature of law, legality, legal rights and constitutional legitimacy taken purely as such (Schmitt 1993). Some of the most deeply entrenched ideological myths concerning law both disguise and protect themselves in various ingenious ways – akin to

4  Carl Schmitt: Law as politics, ideology and strategic myth

how computer viruses frustrate the very methods deployed by leading antivirus software programmes to both identify and remove them. At the start, it is necessary to emphasise that this work cannot take for granted the validity of simple either/or distinctions between myth and nonmyth, and between ‘ideology’ and social ‘science’; and then pretend to be conducting academic analysis on behalf of only the second term of these (and associated) conceptual oppositions. My study does not engage in a social scientific ‘debunking’ of myth and the critique of the ‘ideology of humanity’ in the name of some supposedly emerging ‘higher truths’ (or ‘enlightenment’ in the service of ‘emancipation’) that have supposedly overcome and liberated themselves from all mythic and ideological contaminants. There is no comparison with how, for example, Darwin’s scientific theory of evolution partially displaced religious creationist myths, at least within the field of biology. If it were ever possible for legal researchers to attain such an elevated position of pure social scientific objectivity free from both ideological influences and those mythic assumptions associated with the one-sided rationalism of classic enlightenment approaches to their research field, then its acquisition might indeed be tempting. But, and for reasons addressed below, there are good reasons to doubt the possibility of such researchers ever being able to entirely ‘liberate’ their analysis from entanglement in either myth or ideology by obtaining a God-like view above the specific and localised contexts that their reflections seek to make sense of. And yet reflexive recognition of the sobering possibility that a critical analysis of myth and ideology necessarily operates, to some measure, with its own – and at least partly unacknowledged – ideological myths, could still yield up an important insight. Perhaps, it can operate as a partial, if far from irresponsible, form of ‘liberation’ from classic enlightenment prejudices against cultural prejudices, mythic beliefs and ideologically loaded interpretations. In short, the primary concern is not to debunk the myths that, according to Schmitt, permeate various constitutional doctrines, including parliamentarism, and liberal constitutionalist interpretations of the rule of law, sovereignty and democracy, in the name of a higher strictly scientific mode of legal analysis, but rather understand their sources, political workings and implications. A book that critically addresses ideological and mythic elements of law as conventionally understood, researched and taught, needs to acknowledge that, in various opaque ways, its own claims may serve as another instance of that which it addresses. Our acts of reflection upon the preconditions for those interpretative acts that we carry out when making sense of law face considerable internal resistance. Such reflective self-consciousness confronts perennial limits to seeing around its own corner, as it were, by identifying and describing its own entrenched pre-judices (mythic beliefs prior to, and determinative of, acts of legal judgement) in a totally

Introduction 5

‘unprejudiced’ way. Hence, the potential dangers of the proposed reflexive study of how interpretations of law are themselves often shaped by specific political myths culminating in a downward spiral of infinite regress, are probably more logical than actual. In this field, truth and error are questions of degree, and permanently fallible and provisional to contexts and available evidence. They are not – as a once dominant metaphor and myth suggests – a sudden revelatory movement from a condition of cave-like darkness to the bright light of pure reason and enlightenment. The remaining grounds left for my critical analysis of the ideological and mythic beliefs underpinning ‘liberal cosmopolitanism’ conducted through the lens of a reconstructed Schmittian agenda, relate primarily to the actual and potential counterproductive consequences and other contradictions of their concrete application (Zolo 1997). Seen in this light, and combined with my semi-theological commitment to the optimisation and fulfilment of democratic values, it may be possible to distinguish ‘dangerous’ from ‘positive’ political myths, and coherent from self-contradictory ideological positions and movements. Whether these scaled-down criteria for critical evaluation are adequate to the intended task, or themselves require supplementation or replacement, can perhaps only be ascertained during the course of their deployment. There is also the unavoidable question of why address the central topics just discussed through a perspective stemming from a highly selective reconstruction of works written by the until recently taboo figure of Carl Schmitt? This is a question that the next chapter addresses directly.

Part I

Law as ideology and politics

Chapter 1

An afterlife for Carl Schmitt?

There is inevitably controversy over how best to ‘come to terms with’ Carl Schmitt (11 July 1888–7 April 1985), particularly in terms of various claims concerning his contemporary relevance. The present chapter addresses these two themes. This book takes as its primary guide the writings (as distinct from the biography) of this ever-controversial German jurist and professor of public law at the Universalities of Cologne, Bonn and Berlin. Can these provide us with a potentially useful tool-kit of claims, techniques and, perhaps, a combination of relevant insights and dreadful – if still instructive – warnings? But which particular version of Carl Schmitt can claim topical relevance for present purposes? Thalin Zarmanian has recently argued that: Probably no political thinker, and certainly no jurist, has given rise to such conflicting views as Carl Schmitt. As Carlo Galli has noted, Schmitt has been called the worst man in the world and the only German of his time with whom it was worthwhile conducting a conversation. He has been called a sceptic and a dogmatist, a romantic and an anti-romantic, a modernist and an anti-modernist, the thinker who did away with the state and the one who most regretted its death. To some, Schmitt is the thinker who saw disorder and conflict as the source of the political. To others, Schmitt is the last person to point to order as its constitutive element. Schmitt defined himself as ‘the last bearer of the European juridical civilization’. Schmitt ended up being ignored by jurists; many political scientists and philosophers, in contrast, regard his work as a milestone. (Zarmanian 2006: 41) The recent, that is post-1985, explosion in mainly leftist scholarly literature on Schmitt, the famed ‘Schmitt renaissance’, has generated multiple images, most of which claim to be offering up the single correct key for unlocking the ‘true meaning’ of this figure (Rust and Lupton 2009: xv–xx). These images can be loosely divided into five clusters: theology,

10  Carl Schmitt: Law as politics, ideology and strategic myth

legal and constitutional theory, political theory, biographical, and literary studies. Concerning theology, for example, there is the image of ‘Schmitt the Catholic thinker and political theologian’, where an understanding of his distinctive political Catholicism is judged the key to unlock the meaning of his texts (Meier 1998). Elements of the other approaches will be addressed in different parts of the present study. What cannot be deferred in this way are biographical approaches, particularly those which seize upon Schmitt’s relationship with the Nazi movement (Koenen 1995). Since Schmitt’s first publication in 1912 through to 1932, Schmitt had ignored emerging neo-Nazi and Nazi positions within his chosen scholarly fields, and through the entire Weimar period this disdain had been fully reciprocated by Nazi legal, constitutional and political theorists. Schmitt had opposed Hitler’s movement both within his late Weimar writings and in his own political engagements, where he contrived with General Schleicher to outmanoeuvre Hitler, despite the latter’s strong parliamentary representation. Through an expansive interpretation of the role and powers of the directly elected German President under Article 48 of the Weimar Constitution, he had sought to enhance constitutional bulwarks directed precisely against extreme unconstitutional movements such as Nazism and Communism (Schmitt 2004b). This was particularly the case where these strategically deployed legal and constitutional means, and thereby threatened to secure parliamentary majorities. Schmitt regarded President Hindenburg’s decision in January 1933 to appoint Hitler as Chancellor in a Nazi-Conservative coalition to be utterly insane. He interpreted this development as both a personal reverse to his own ambitions of becoming a leading constitutional adviser to Schleicher, and – more widely – a political disaster and retrograde step for the entire German people (Kennedy 1988: xlix, n 91; Kennedy 2004: 116). In this respect, Schmitt’s personal opinions and political judgements were broadly consistent with his pre-1933 publications, particularly Legality and Legitimacy and Guardian of the Constitution (Schmitt 2004b and 1931 respectively). Attempts to read his subsequent embrace of the Nazi-Conservative coalition as if this represented the logical culmination of the allegedly Nazi implications of his earlier studies, involves a gross falsification of the historical record. It suggests the improbable, indeed incredible, proposition that Otto Kirchheimer, Franz Neumann, Leo Strauss, Ernst Fraenkl and Walter Benjamin – all broadly sympathetic readers of Schmitt – were somehow incapable of recognising a fascistic body of work for what it really was. A similar point applies to an earlier pioneer of Schmittian studies in the English-speaking world, Joseph Bendersky, also from a Jewish family background. And yet, from the middle of 1933, Schmitt abruptly reversed his previous scholarly and political positions that Nazi theorists had rightly recognised as

An afterlife for Carl Schmitt?  11

incompatible with their own (Koenen, 1995). He joined the Nazi Party, generally made his peace with the new regime, and then actively collaborated shamelessly for the next three years (Bendersky 1979: 316–22; Salter 1999). From 1933, Schmitt made various defensive attempts to play down his earlier strong criticisms of Nazism as a form of ‘organised insanity’ meriting constitutional prohibition. He also attempted to gloss over his personal support for, and affiliation with, key figures within Hitler’s conservative enemies associated with General Schleicher, who the Nazis had killed in a revenge attack of July 1934 in what became known as the ‘night of the long knives’ (Bendersky 1979: 318). This always threadbare and unconvincing strategy of misrepresenting both his personal position, and that of his previous works, as broadly compatible with the ideology of Hitler’s Nazi-Conservative coalition regime, completely unravelled within three years. From the start, representatives of hard core Nazism within and beyond the fields of legal and constitutional theory, who had been contributing to Hitler’s project for many years, were highly suspicious of this new ‘convert’. They recognised that Nazi ideology in this area had – for clear and obvious reasons – avoided any positive reference to Schmitt’s Weimar publications whatsoever (Bendersky 1979: 320–1). There are at least four clear reasons for this. First, these writings were widely and rightly identified as distinctly incompatible with, and largely directly opposed to, their own ideology and immediate political aims of seizing state power and subordinating it to the Nazi leadership. In particular, many Nazi scholars associated Schmitt with political Catholicism, a movement to be repressed as incompatible with their own revolutionary project of dismantling all forms of authority other than that of the Nazi leadership. Secondly, Schmitt’s Weimar writings exhibited a strong conservative statist dimension, drawn partly from Max Weber as well as Thomas Hobbes. This rejected the idea that the modern democratic state could ever legitimately be instrumentalised to the point where it became little more than a mere device for the realisation of any specific party political agenda (Surin 2005: 186–7). Instead, it embodied a distinct public sector ethos, and thereby constituted: ‘the ultimate and decisive authority’. The modern state was duty-bound to fight off and, if need be, defeat by authoritarian means all such particularistic challenges (or ‘indirect powers’) emerging from civil society, in particular from both Communist and Nazi movements aspiring to destroy democracy from within (Schmitt 1996a: 19–20; Schmitt 1999). Thirdly, in response to a context of extended parliamentary deadlock with the Nazis and Communists joining forces in a ‘negative majority’ against government measures, Schmitt had strongly attacked liberal constitutionalists, including legal positivists. He attacked them for absurdly insisting on affording such totalitarian movements an ‘equal chance’ to cynically destroy democracy from within by legal-constitutional means – as

12  Carl Schmitt: Law as politics, ideology and strategic myth

if the Weimar constitution was a suicide letter (Schmitt 1931; Schmitt 1932/1988; Schmitt 2004b: 28–36, 47, 88, 94, 98). The final reason is that defenders and advocates of hardcore Nazi ideology also knew that Schmitt’s theoretical writings ‘lacked’ the defining commitment of Nazism to a distinctly racist and pseudo-biological form of analysis (Bendersky 1979: 321). Equally significant is the fact that his pre1933 publications had developed an interpretative or social constructionist cultural theory of representation, broadly akin to that of Max Weber’s contributions to interpretative sociology. This, of course, remains diametrically opposed to any type of naturalism, particularly Nazi forms of biological reductionism (Schmitt 1996c). In many places, Schmitt’s writings displayed dialectical forms of argumentation and analysis closer to Hegel, and especially Hobbes, than writers such as Nietzsche on whom Hitler’s movement had at least pretended to draw direct inspiration. Schmitt rarely engaged in express forms of methodological reflection. However, on those occasions where his works articulate a methodology, he recognised its indebtedness to the phenomenological approach of Edmund Husserl, who was a German national from a Jewish background. Indeed, in 1928 Schmitt expressly credits Husserl’s method with supplying him with an optimal conception of equality and identity as a subjectively lived reality appropriate to his theory of constitutional democracy (Schmitt 2008a: 10 n 2; Schmitt 2008b: 265). Fredric Jameson has rightly identified how Schmitt’s Nomos of the Earth displays Husserl’s clear influence with respect to its ‘spatial thought’ (Jameson 2005: 200; cf. Schmitt 2003). I would add that some of Schmitt’s most cited works, particularly The Concept of the Political, adopt a Husserlian ‘eidetic’ approach to identify, partly through a process of distinguishing, essential qualities of ‘the political’ as this manifests itself experientially over time (Schmitt 1996a). Furthermore, Schmitt’s writings from 1912–33 ‘lacked’ indications of anti-Semitism, even of that ‘moderate’ (relative to Nazism) anti-Judaic religious form which was common amongst defenders of Catholicism (and German Lutherism). Furthermore, Schmitt was known to be personally associated with, and helpful to, many Jewish friends, colleagues and graduate students, including Leo Strauss and Erich Kaufmann. Some of these were also well known and vocal leftist enemies of Nazism, such as Neumann, Kirchheimer and Benjamin (Bendersky 1979: 319–21). Galli and others contest the argument that claims that, given the alleged continuity between his Weimar and Nazi works, Schmitt’s support for Nazism must be seen as the inevitable result of the former. Nothing in his work actually reveals a necessary transition from Schmitt’s conservativestatist anti-liberalism to totalitarianism and Nazism. Galli maintains that Schmitt’s temporary embrace of Nazism was more a consequence of his personal circumstances than his intellectual history, and that during his overtly Nazi years (1933–36) Schmitt barely produced any original work.

An afterlife for Carl Schmitt?  13

Instead, he cynically revised and ‘decorated’ his earlier positions to simply curry favour with the new regime and to gain recognition as a Kronjurist (Crown Jurist) within it. Nazism had minimal influence on Schmitt’s overall theoretical perspective, which also explains why his status was strongly contested within core Nazi circles (Galli 1996: 839; Zarmanian 2006: 43). Between 1933 and 1936, Schmitt’s defensive and dishonest attempts to smooth over these discrepancies and thereby reap the material spoils of such collaboration for his career, succeeded in not only alienating most former colleagues and friends, but also ruining his personal reputation. Of course, this repackaging utterly failed to convince the Political Intelligence Division (SD) of the SS, who kept Schmitt under surveillance, that he was anything other than a political opportunist and turncoat from the conservative opposition to Nazism, who had jumped on the Nazi bandwagon primarily to save his own skin. By 1935–36, it had become increasingly obvious to SS officials that Schmitt was someone who was playing mere lip service to the distinctive features of Nazi ideology, particularly grotesque displays of anti-Semitism, to save himself from the bloody fate suffered by his mentor General Schleicher (and the latter’s entire family and political aides). In addition, it may have become obvious that he had been seeking to shamelessly advance his career in a context where many major rivals – such as Hans Kelsen – had already been forced to emigrate to escape political and anti-Semitic persecution (Dyzenhaus 2006: 84). What is certainly clear is that in 1936 there was a powerful SS public campaign against Schmitt, which included public condemnation in semiofficial publications, followed by his denunciation by Hitler’s deputy Rosenberg. Rosenberg rightly pointed out a series of contradictions between Schmitt’s conservative-statist and political theological orientation on the one hand and, on the other, the content of Nazi ideologies that prioritise race and the Nazi movement itself (Bendersky 1979: 320; Scheuerman: 1999: 288 n 55). After such attacks he was stripped of his various official and semi-official positions in Nazi-affiliated academic organisations. Indeed, he may have only survived the fate of Schleicher because it was Herman Goering who had originally appointed him to a largely ceremonial post of Prussian State Counsellor. Goering’s overblown personal vanity clearly resented ‘his’ personal appointee being publicly undermined by medium and low ranking SS officials - even where, from the perspective of strict Nazi ideology, these attacks would, he accepted, possess substantive merit (Bendersky 1979; 315, 318; Dyzenhaus 2006: 86). There is no denying that these facets of Schmitt’s personal behaviour between 1933 and 1936, including his conversion to a strategic form of antiSemitism, were morally and ethically deplorable (Scheuerman: 1999: 10, 114–16, 123, 127–8, 157–8, 175, 298, 308–9 n 73). They remain a vexing question that Schmittian scholarship cannot responsibly ignore. In this respect, however, Schmitt’s name joins the list of scholars who made

14  Carl Schmitt: Law as politics, ideology and strategic myth

deplorable political mistakes by either endorsing or working with tyrannical regimes. This depressingly long list includes Plato, and with respect to Nazism – Paul De Man, Martin Heidegger, Blanchot, T.S. Eliot; and, in relation to Stalinism and militant political Islam, Georg Lukacs and Michel Foucault respectively. During the Stalinist era at least, one could accuse every Western academic who ever joined and chose to remain a member of the Communist Party of endorsing Stalin’s murderously genocidal tyranny, particularly in Western contexts where – unlike Schmitt – they were under no personal threat. The fact is that around 20 million Chinese citizens were killed during Mao’s ‘great leap forward’ and forced industrialisation. Yet, this is rarely recognised by Western Marxists as an objection to their position. Obviously, such comparisons do not excuse Schmitt or relativise his complicity in the sense of minimising it. However, they are relevant to how commentators ought to respond to this episode. These points highlight the dangers of adopting a highly selective perspective on which victims of genocide are judged to be noteworthy and which others, for ideological reasons, are passed over in silence whenever questions of academic collusion with murderous dictatorships are under discussion. In each of the cases listed above, there are good reasons explaining why the exposure of such disastrous endorsements has been taken seriously by academic commentators but has not prompted a frenzy of book-burning. The central reason is the important distinction between the activities of academics as individuals within a given historical context, and the contemporary scholarly implications of their works for us. Fortunately, such exposure has not prevented the works of these personally disgraced writers from remaining in print, being widely translated and critically discussed by leading scholars of all political persuasions in terms of both the validity, and utility, of their ideas and styles of analysis. Arguably, a democratic academic culture needs to preserve awareness not only of authors whose biographies exemplify positive role models, such as Franz Neumann, for example, in relation to his opposition to Nazism both within Germany and later as a research analyst preparing research materials for the Nuremberg trials, but also prominent – but now disgraced – figures (Salter 1999). The latter group’s intellectual biographies need to serve as a dreadful warning to those who might, for short-term material gains, be tempted to emulate Schmitt’s ultimately counterproductive actions in the future. The fact that one of France’s pre-eminent leading thinkers during the immediate post-war decades, Jean Paul Sartre, noisily resigned from the French Communist Party in the wake of its ‘patriotic’ support for the French government’s brutal suppression of the Algerian national liberation movement, was and remains highly symbolic; and of course one could add many other names to this list of politically engaged academics. By contrast, and this is especially unforgivable, Schmitt – like Martin Heidegger – never publicly apologised, or accepted any personal

An afterlife for Carl Schmitt?  15

responsibility for, his complicities by, for example, accepting ‘denazification’. Unlike virtually all other academic collaborators with Nazism, including judges and lawyers, this rendered Schmitt unemployable in the post-war German University sector (Scheuerman 1999: 4). Ironically, his ‘resolute’ post-war stance of refusing to apologise for, or otherwise renounce, his period of collaboration also served as a criticism of the crass opportunism of former Nazi ‘fellow travellers’ who – immediately after the collapse of Nazism in the spring of 1945 – rapidly reinvented their public image as that of life-long liberal constitutionalists. Schmitt exempted himself from his own, all too belated, silent critique of such shameless political opportunism, even though his own behaviour during much of the Nazi period was a pre-eminent example of precisely that (Pan 2009a: 69–71). Let us for the sake of argument accept as true even the most extreme and unsympathetic critiques of Schmitt’s political choices, motivations and behaviour during the first three years of the Nazi era, and even gloss over his coded critique of Hitler in his 1938 study on Hobbes, which emphasised that citizens had no obligation to obey a tyrant who failed to secure their personal security (Schmitt 1996b: 72–3). On this basis, the issue still remains should contemporary scholarship seek to restore the earlier taboo on discussing and critically analysing his works that largely prevailed in European and North American circles from 1945 to the mid-1980s? Perhaps there is something counterproductive in scholars producing repeated academic studies attacking Schmitt and provoking debate if the ultimate goal is to vindicate a disapproving silence concerning a theorist whose works ought not be studied and applied to new situations? Such critics, and here I am thinking of William Scheuerman in particular, may have done as much as anyone to contribute to the revival of better-informed debates over Schmitt – notwithstanding the repeated, and sometimes patronising health warning inserted into often technically impressive commentaries of key works (Scheuerman 1999; 1995, 2006). Whilst the ideas of Schmitt certainly need to be handled with care to mitigate some of their authoritarian implications, 20th-century experience suggests that this point applies equally to those of Karl Marx, Von Hayek, Nietzsche, Adam Smith, George Sorel, Bakunin and Mao. Despite recognition of their biographical complicities, I would suggest that on balance it is a good thing that the writings of Schmitt, Heidegger, de Man, Lukacs et al continue to both inspire and provoke contemporary debates. The idea that the vitality and healthy pluralism of academic life would be improved by a blanket ban on the works of such writers ever being studied and critically analysed, is hard to sustain. There are welcome controversies regarding Schmitt within legal and political theories influenced by Derrida’s post-structuralism and Frankfurt School Critical Theory – two prominent and rival strands of contemporary theory, which – in different ways – partly build upon and reiterate aspects of Schmitt’s analysis of interpretative

16  Carl Schmitt: Law as politics, ideology and strategic myth

decisionism and technocratic instrumentalism respectively (Kennedy 1987; Scheuerman: 1999: 7–9, 137–9). More generally, there is simply no avoiding the fact that a growing number of writers located across the political spectrum, with expertise in a highly diverse range of academic disciplines ranging from jurisprudence, international law and constitutional theory, through to literary criticism, theology and political theory, recognise both merit and contemporary relevance in Schmitt’s writings (Strong 2006: x–xiii; Müller 2003; Rust and Lupton 2009: xv–xx). And yet Schmitt’s three-year active complicity in Nazism still continues to cast a particularly, and perhaps even uniquely, dark shadow over most of these debates. As Levinson recognises with respect to Schmitt’s major post-war work, Nomos of the Earth: ‘To be sure, readers – given Schmitt’s well-known relationship to Nazism – too easily “impose” a fascistic sense on the text, one that may not be directly in evidence within Nomos itself’ (Levinson 2005: 205). It is entirely understandable that liberal and leftist critics will attempt to identify implicitly fascistic and anti-Semitic implications in and ‘between the lines’ of Schmitt’s Weimar writings that would be not be detected if exactly the same passage had been written by, say, Walter Benjamin or Karl Marx, even with respect to the latter’s controversial ‘On the Jewish Question’. Perhaps the idea of simply ignoring this biographic episode as irrelevant to the scholarly merit and contemporary relevance of his works strikes contemporary scholars – myself included – as a form of irresponsible complicity that must be avoided. This could be the case even where such predictable disclaimers add little to the substance of the debate in question, such as regarding the merits and difficulties with Schmitt’s post-war interpretation of Hamlet (Schmitt 2009). Within the opening decades of the 21st century, there are surely many ideological threats directed against democratic institutions and practices to be guarded against. Yet where in the overall scheme of things ought we to rank the dangers posed by a politically-suspect interpretation of Hamlet against which Schmitt’s readers need to be carefully forewarned? Such non-rational, even ritualistic, aspects of Schmitt scholarship, which I am myself re-enacting, may of course still possess a symbolic value. Curiously, these issues appear to have arisen with unique force in discussions of Schmitt. The fact that a philosopher as prominent as Martin Heidegger and literary theorist and precursor to deconstructionism, Paul de Man, also collaborated to various degrees with Hitler’s appalling and ultimately genocidal regime – together with the majority of German lawyers, judges and jurists – does not seem to have exerted a comparable effect over scholarly debate of their work (Scheuerman 1999: 294 n 45). In particular, those much-discussed contemporary scholars who Heidegger and de Man massively influenced, such as Jacques Derrida and his followers within both post-modern jurisprudence and critical legal studies, rarely experience

An afterlife for Carl Schmitt?  17

stigma from this source (Scheuerman 1999: 82–3). Certainly, whatever stigma attaches to their works is minimal in comparison to that which the revival of Schmitt scholarship – pioneered by the once new-leftist and critical theory oriented journal Telos – originally experienced.1 It is hard to argue that the post-war ‘failure’ to subject serious scholarly discussion of the writings of Heidegger or de Man to a comparable taboo has led to a range of anti-democratic consequences vindicating the accusation that, for example, Heideggerian theory remains fascistic to its core. This book is premised on the belief that, with the exception of those published in support of Nazism between 1933 and 1936 and specific and ad hoc collaborative statements within his writings on international law (Salter 1999), Schmitt’s works merit a suitably critical and comparative form of scholarly analysis. When reading his key works, it is necessary to do justice to the experience of encountering radical and challenging ideas that call into question so many of the liberal assumptions that might otherwise have remained unnoticed. Given their prejudices, no consistent liberal can argue that the assumptions of their belief system must not be identified or freely debated. Even John Rawls and Habermas recognise the seriousness of the distinctly intellectual challenge posed by Schmitt’s work.2 It is the ideas, claims and methods of analysis that need to be allowed to take centre stage, not the biography and sometimes deplorable political choices of their author. Schmitt the brilliant stylist, interdisciplinary writer, but deeply flawed person, remains as materially deceased as dead can ever be. It is only specific aspects of the published works, particularly those lacking any direct or indirect connection to Nazism, that continue to speak to, inspire and provoke us to respond. The next section seeks to clarify specific aspects of the contemporary world to which Schmittian analysis has retained a measure of significance, sometimes in ways that, whether by luck or judgement, or a combination of the two, are more acute than could ever have been anticipated.

1 Examples to date include: Telos 72, Carl Schmitt: Enemy or Foe?, Summer 1987; Telos 109, Carl Schmitt Now, Autumn 1996; Telos 25, Carl Schmitt and Donoso Cortés, Autumn 2002; Telos 132, Special Edition on Carl Schmitt, Autumn 2005; Telos 142, Culture and Politics in Carl Schmitt, Spring 2008; Telos 147, Carl Schmitt and the Event, Summer 2009; Telos 153, Special Issue on Carl Schmitt’s Hamlet or Hecuba, Winter 2010. 2 John Rawls, the pre-eminent source of contemporary liberal and neo-Kantian jurisprudence, makes this point belatedly in the introduction to the paperback edition of his Political Liberalism (NY: Columbia University Press, 1993) xxv–xxvi.

18  Carl Schmitt: Law as politics, ideology and strategic myth

Contemporary relevance? Rather than engage endlessly with purely historical and biographical aspects of Schmitt-the-individual, as if his corpse was somehow on trial, a more useful line of questioning is to both focus upon, and then critically reassess, the possible implications and potential of ‘Schmittian’ ideas and modes of legal analysis. In turn, this requires a reconstruction not of the immediate context in which Schmitt lived and worked, but that of our own, which is markedly different. One of Schmitt’s strongest recent critics claims that this jurist belongs: ‘among the ranks of twentieth-century Europe’s most influential political and legal theorists … who has [also] exerted a subterranean influence on postwar American political thought’ (Scheuerman 1999: 1). Habermas – a key source of leftist criticism – has stated that: ‘Today, what Carl Schmitt has to say against the “universal significance of the belief in discussion” is once again relevant. His criticisms penetrate to the heart of Western rationalism’.3 How though ought we to judge which particular aspects of Schmitt’s large corpus of writings still merit close attention, and by means of what criteria? Having made a selection, what relevance are questions relating to Schmitt’s underlying ‘subjective’ motivations to the task of interpreting their implications for contemporary themes and contexts of applications? Within the field of international law and relations, Schmitt’s writings are beginning to secure a wider sympathetic reception, despite the challenges posed by their interdisciplinary character.4 The editors of a recent special issue of the Leiden Journal of International Law, which brings together a selection of papers from an earlier international relations conference stream on Schmitt, summarise a number of fields of contemporary relevance. That is, concrete areas where his international law and geopolitical analysis exhibits pertinence to contemporary crisis of the foundations of these disciplines, indeed ‘pivotal’ significance, which merit closer and more detailed discussion: In this piece we … argue that Carl Schmitt’s much neglected international thought can provide scholars of both international relations and international law with a new common multidisciplinary research platform pivotal in thinking about the present international predicaments of crisis in international order and legitimacy, of

3  Quoted from the Times Literary Supplement on the back cover of Schmitt 1988. 4 P. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation, and World Empire (2005); C. Mouffe, ‘Schmitt’s Vision of a Multipolar World Order’ (2005) 104 South Atlantic Quarterly 245; and W. Rasch, ‘Human Rights as Geopolitics: Carl Schmitt and the Legal Form of American Supremacy’ (2003) 54 Cultural Critique 120.

An afterlife for Carl Schmitt?  19

contested liberal hegemony, and of the issue of unipolarity and the emergence of new forms of warfare, such as terrorism and the ‘global war on terror. … [There are a] core set of issues, of crises, confronting both international relations and international law, crises which are the expression, we say with Schmitt, of the deeper and more fundamental collapse of the modern system of international political and legal order, the jus publicum Europaeum’. (Odysseos and Petito 2007: 1, 3) The nub of their argument is that Nomos deserves to be treated as a modern classic and ‘founding text’ within the realist tradition of international law and relations scholarship associated with the writings of E.H. Carr, Hans Morgenthau, Raymond Aron and Martin Wight. This historical work addressing the geopolitics of international law, and its rootedness in both acts of land appropriation and division, needs to be recognised as a ‘corrective of the ahistoricity of the discipline and its blindness to the ways in which spatiality, law, and politics constitute world order’ (Odysseos and Petito 2007: 3). In particular, they argue that in a context where a ‘war on terror’, combining a unilateralist assertion of US power with a universalistic ‘ideology of humanity’, exerts a powerful influence on international relations and law, specific aspects of Schmitt’s international thought have taken on a renewed significance: This [reconsideration] seemed even more appropriate at a moment when we witness the apparently paradoxical convergence in world politics of unilateralist-militarist and liberal-humanitarian themes that too easily remind us of Schmitt’s remarks on the two-sided political nature of the concept of humanity and of his powerful indictment that ‘whoever invokes humanity wants to cheat’. (Odysseos and Petito 2007: 3) It is certainly clear that aspects of Schmitt’s critique of Anglo-American forms of cultural and economic imperialism within international law and international relations was originally motivated by a typical German nationalistic hostility to the punitive terms of the Versailles Treaty of 1919 (Rasch 2008: 59). However, as even Schmitt’s strongest socialist critics – who reject nationalism across the board – recognise, elements of this critique exhibit relevance to current debates over counter-terrorism measures. For example, as Scheuerman notes: When a colleague recently brought the first English translation of Carl Schmitt’s The Partisan to my attention, I picked it up more out of a sense of professional obligation than genuine enthusiasm. … in the context of the end of the Cold War, the demise of Third World guerilla

20  Carl Schmitt: Law as politics, ideology and strategic myth

movements, and universal embrace of free-market capitalism, Schmitt’s reflections struck me as dated. But that was all before Al Qaeda’s heinous 9/11 attacks, the illegal U.S.-led invasion of Iraq, Abu Ghraib, and Guantanamo Bay. As I reread Schmitt’s study in the post 9/11 context, it quickly became clear that I had overlooked something significant. Despite the deep normative flaws in his thinking, Schmitt was often a prescient analyst of political and legal trends, possessed with an uncanny ability to identify dilemmas that would soon gain widespread attention. This is no less true of The Partisan than of his more famous works. Schmitt’s study is disturbingly relevant to the political and legal world in which we now find ourselves, in which the U.S. government has responded to 9/11 in part by placing accused terrorists outside the Geneva Convention’s category of ‘legal combatants’ and outfitting the executive with a stunning array of discretionary powers to determine their fate. Schmitt’s little known 1963 study not only anticipated this development, but when read critically also points to sound reasons for challenging its deeply problematic logic. (Scheuerman 2006: 108) Chandler has recently argued that Schmitt’s critique of liberal cosmopolitanism appeared anachronistic in the 1990s, when social theory was enjoying a honeymoon period with this optimistic humanist orientation (Zolo 1997). However, later post-9/11 developments have given Schmitt’s work renewed vitality at the hands of critical scholars: For the 1990s critics, the universal discourse was driven by progressive agency ‘from below’ and therefore was a challenge to power. In our more disillusioned 2000s, particularly since 9/11, there has arisen an alternative critical reading of the discourse of cosmopolitan universality and the nature of post-territorial political community. Often a starting point for these critics is the work of German legal theorist Carl Schmitt, who, writing in the mid twentieth-century, was highly critical of US claims to uphold universal cosmopolitan rights in opposition to what he saw as the European view of international law which privileged sovereign rights ... Schmitt claimed famously that ‘whoever invokes humanity wants to cheat’ ... Rather than a new progressive liberal universal subject arising from below, critical theorists in the 2000s saw the dangers of the liberal discourse as one which uncritically legitimated new totalizing mechanisms of intervention and regulation from above. (Chandler 2008: 56) Scheuerman is probably right to suggest that there may be at least some distinctly ‘Schmittian’ themes, questions and ideas that, if appropriately salvaged and reconstructed, can help illuminate aspects of our contemporary

An afterlife for Carl Schmitt?  21

situation. Included amongst these are surely the strengths and limitations of his model of ‘the political’ based on the emergence of friend/enemy distinctions through emphatic forms of group association and disassociation (Schmitt 1996a: 26, 37). Surin, for example, has recently argued that whilst it is not difficult for both professional historical sociologists and political philosophers to identify flaws and limitations with this model, it is significant that ‘thinkers of both the Left and Right have referred consistently to Schmitt in their attempts to delineate the political morphology of this world system’. He then concludes that despite various objections and possible flaws: Schmitt’s pertinence as a thinker for our time can be accounted for only if we accept that … Schmitt was genuinely on to something … his arguments reflect certain fundamental intuitions about the nature of the political and its function in the liberal capitalist system that are deemed by many to have powerful saliency for contemporary political realities. (Surin 2005: 190) Surin then illustrates such saliency by reference to the recent emergence of the United States as the sole and uncontested superpower, and resistance to its military invasion and de facto occupation of Iraq and Afghanistan, noting that Schmitt’s Theory of the Partisan ‘did of course anticipate the lineaments of just this kind of state of affairs’ (Surin 2005: 191). Mouffe, Surin and others have also argued that the appearance of a Schmittian dimension to US foreign affairs ideology – as articulated within the legal field by John Woo for example – is both superficial and deceptive. This is not least because Schmitt’s destructive critique of modern forms of imperialism highlights the latter’s resort to metaphysical-theological imagery of ‘axis of evil’ opposed by a US-led crusade of the morally righteous, fits this critique like a glove. As Mouffe recognises: Schmitt helps us make a much more incisive critique of Bush’s politics … Schmitt allows us to grasp the continuity existing between the traditional perspective and the politics carried out by the current government. … To be sure, Schmitt repeatedly underlined that the differentia specifica of the political was the friend/enemy discrimination. But he always stressed that such a discrimination should be drawn in a properly political way, not on the basis of economics or ethics. He specified that the enemy should never be the ‘personal’ enemy … but the ‘public’ enemy … He certainly would not have condoned Bush’s use of moral categories of ‘good’ and ‘evil’ to designate his enemies and his messianic kind of discourse about the American duty to bring freedom and democracy to the world. This was precisely the kind of

22  Carl Schmitt: Law as politics, ideology and strategic myth

discourse for which he criticised liberalism. Indeed, Schmitt was a sharp critic of liberal universalism, with its pretense of offering the true and only legitimate political system. For him the world was a ‘pluriverse’ not a universe, and he was adamant that any attempt to impose one single model worldwide would have dire consequences. (Mouffe 2005: 246) This Schmittian critique relates to a long-standing imperialistic tendency within US foreign policy predating but also transcending the presidency of George Bush. The latter merely gave expression to imperialistic unilateralism in a cruder form than previous leaders, whilst taking these to a messianic extreme and tabloid form of rhetorical intensity (Surin 2005: 192–3; Mouffe 2005: 244–5; Müller 2003: 231–2). Giorgio Agamben, himself a highly influential scholar, further argues that recent post-9/11 history has witnessed the extension and normalisation of the Schmittian idea of ‘states of exception’ which – in the name of global law enforcement – have effectively hollowed out the content of modern law: … the state of exception has today reached its maximum worldwide deployment. The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that – while ignoring international law externally and producing a permanent state of exception internally – nevertheless still claims to be applying the law. (Agamben 2005: 87) Another highly-regarded leftist scholar, Fredric Jameson, has recently identified: ‘the astonishing contemporary quality of Schmitt’s The Nomos of the Earth’. He claims that this conclusion is based on its ‘innovatory’ anticipation of a distinctly ‘postmodern’ spatial analysis: ‘which by combining juridical and geographical reference, transcends both’. Jameson further points to the contemporary relevance of Schmitt’s critique of how US imperialism, for its own ends, exploits international law notions of ‘just war’ from its vantage point as ‘the only superpower’ to legitimate military invasion and occupation (Jameson 2005: 199–200). In a recent work, Douzinas, a leading figure in post-modern jurisprudence, expressly places his contemporary analysis of the war on terrorism as a qualified continuation of, and expansion upon, Schmitt’s earlier critical analysis of both ‘the exception’ and US imperialism: According to Carl Schmitt, the Sovereign decides exceptionally and performatively about the exception, suspends the law in order to save it. In our recent wars, in a modification of Schmitt’s law, the United States placed itself in the position of global Sovereign by suspending international law. There is more. The exception does not just create

An afterlife for Carl Schmitt?  23

the rule; it also constitutes an imaginary global space over which the Sovereign will rule, it creates the terrain of its application, its law and its space. This is the symbolic space of a global community organised according to the effectiveness of planetary technology, a failing world capitalism and a legal system given to the endless circulation without significance or aim, a combination of the nihilism of shock and awe and capitalism. In this sense, recent wars marked the return and condensation of sovereignty, but perhaps a bastard sovereignty without sovereignty, which acts without end, except that of endless circulation and expansion. In a historical reversal, an Emperor is emerging but the Empire is still under construction and indeed may fail. An Emperor without Empire is our world. (Douzinas 2009) Indeed, it would be possible – if ultimately tedious – to fill an entire monograph with similar quotes from major contemporary writers from the post-structuralist and neo-Marxist traditions. These have built upon and creatively deployed aspects of Schmitt’s work in discussing contemporary domestic, Europe-wide and international events and developments, particularly within the decades from 1990 onwards. However, for present purposes, dis-economies of scale would rapidly set in after the first 30 pages of any such demonstration. The central point for present purposes is that scores of influential contemporary writers have treated Schmitt’s works as a rich resource for contemporary critical analyses of current events. His contemporary relevance to those projects expressly or implicitly aligned with democratic renewal (including internal self-criticisms of strands of such projects), offers itself up as useful criteria for filtering out less helpful and problematic aspects of his work. For reasons already discussed, the type of reappraisal advocated here surely involves a highly selective approach to Schmitt’s claims and their interpretation. We must leave behind in the scrapyard of history those elements that now appear of purely historical or biographical interest. Insofar as there are undercurrents that, perhaps by default and viewed in retrospect, are compatible with an exaggerated ‘decisionism’ and celebratory emphasis upon authoritarian Presidential rule, (albeit written in a context where parliamentary democracy was locked in stalemate), then these too must be jettisoned by a contemporary Schmittian approach predicated upon the pluralistic values of democracy and regionalism (Burchard 2006). Those elements of Schmitt’s writings that survive this filtering operation, including his critique of the cosmopolitan ‘ideology of humanity’ and its imperialistic implications, need, at least initially, to be interpreted and applied to contemporary debates largely on their own merits (Zolo 2002). For example, the strength and limitations of the legal positivism developed

24  Carl Schmitt: Law as politics, ideology and strategic myth

by Hans Kelsen and carried forward and revised by Anglo-American later positivists such as Hart, clearly remains a lively and contentious issue within contemporary legal theory scholarship and the jurisprudence modules of Anglo-American and European legal education (Dyzenhaus 1997: ch 3). Elements of Schmitt’s radical criticism of Kelsen’s ideas still have something worthwhile and sometimes novel to contribute to this ongoing debate regarding the limits of the research programme of positivist jurisprudence. As Levinson, a sympathetic critic, notes with respect to Nomos: [T]he text includes many progressive, even prophetic elements. With his critique of both liberalism and liberal cosmopolitanism Schmitt rigorously addresses, just after WW2, the key socio-political issues of our period, one that contemporary politicians and jurisprudence specialists are just beginning to tackle, behind rather than ahead of Schmitt: international law within a globalisation process. (Levinson 2005: 205) In short, academic scholarship across multiple disciplinary fields and written by scholars of leftist, centrist and conservative orientations who have no sympathy for Schmitt the person or some of the deplorable political choices he made during the Nazi era, contains numerous illustrations of the contemporary relevance of his works. In particular, leading scholars have recognised the relevance of Schmitt’s Weimar writings to questions relating to the status of sovereignty, ideological appeals to ‘humanity’ (and its offshoots, ‘human’ rights and ‘humanitarian’ intervention), terrorism and counter-terrorism strategies – including the justifications for emergency legal powers, and US military interventions in pursuits of an upgraded imperialist agenda (Ulmen 2001; Zolo 2002; Brown 2007). The opening part of Part Two addressing Schmitt’s analysis of ‘strategic myth’ will also summarise the recent scholarly appropriation of Schmitt’s work, particularly his study of political myths. In addition to these empirical points, which inevitably relate to questions of perceived relevance, there are more powerful hermeneutic arguments for bypassing biographical approaches oriented towards Schmitt’s authorial intentions and political orientation. Arguably, the contemporary merits of criticism of Schmitt’s writings cannot be reduced to biographical questions concerning his psychological, interpersonal or career-related motivations and intentions in first making them. Within scientific and scholarly affairs, exemplary motivations can generate dubious forms of scholarly analysis, and – for the same reason – the most deplorable subjective intentions, including vengeance, gross personal ambition and vanity, can generate entirely credible and compelling arguments. There are also good reasons why critics who approach scholarly books only by attacking the personality

An afterlife for Carl Schmitt?  25

and choices of their authors, who thereby engage in purely ad hominem criticism, rapidly lose academic credibility. Let us assume it can be shown that a selective reconstruction of some of Schmitt’s criticisms of Kelsenian positivism exhibit scholarly merit, bring to light previously unrecognised assumptions, mythic beliefs and limitations, and indeed radiate unrealised potential for contemporary jurisprudential debate by opening up new and fruitful lines of scholarly questioning. If this is the case, then such a demonstration remains a worthwhile academic enterprise – even from someone such as the present author who has previously provided extensive reasons why he has no brief for, or empathy with, Schmitt-the-individual, least of all for his political choices (Salter 1999). In short, the relevance and cognitive potential of Schmitt’s criticisms of, for instance, Kelsenian positivism is not dependent upon the reasons why he chose to make them, or when, where and how he did. Instead, it is the potential validity and relevance of the analyses and arguments themselves that continues to matter, as least for as long as this and other variants of liberal belief continue to exert widespread influence within legal scholarship. The flip side of these arguments is that it is entirely possible to imagine future contexts lacking the more pathological aspects of late modernity where Schmitt’s writings lack relevance, other than for historians of defunct ideas. My point is that we are not yet in this entirely conceivable situation, and unless or until this ever comes about there remains a need to come to terms with this writer’s work. Perhaps, the only enduring continuity with Schmitt the flesh-and-blood scholar that I would hope this study promotes and also, in its own way, exemplifies, is the sheer verve and spirit of radical inquiry. That is, a willingness to risk questioning and sometimes reversing dominant assumptions, and then exploring whatever lines of enquiry this opens up. Schmitt’s radicalism involves an attempt to go to the heart of the matter in question, including founding concepts and legitimating patterns of beliefs that are too often taken for granted. This ‘radical’ intellectual orientation, which itself exemplifies certain aspects of liberalism, such as belief in free and open discussion, refuses to stop at purely instrumentalist or other pragmatic justifications for dominant liberal institutions, such as parliamentarism. This is particularly the case where these effectively block critical questioning of basic ideological premises, even within contexts where it is accepted that, in practice, such institutions may still be the ‘least worst alternative’ (Schmitt 1988: foreword). In this cognitive respect, Schmitt’s conflictual approach to law and politics is anything but that of a ‘conservative’. There is no nostalgia for a mythic golden age, of defence of institutions based purely on their established status, or dubious consensual appeals to the empirical fiction of ‘one nation’ misrepresented as a factual reality. Indeed, Schmitt’s works express a regular fascination with the most radical conceivable positions,

26  Carl Schmitt: Law as politics, ideology and strategic myth

including those of right-wing Catholic counter-revolutionaries or, at the other extreme, the anarchism of Bakunin and Sorel (Schmitt 1988: ch 4). Yet, these cognitive elements sit uneasily with Schmitt’s near obsession with the Hobbesian fear of social disorder, states of emergency, revolutionary transformations etc. An almost schizoid merger of political conservatism with intellectual radicalism and adventurism radiates from nearly all of Schmitt’s pre-1928 works. This conflicted and radical quality resists superficial classification of the political implications of these works in the familiar terms of a left/right polarity. It also possibly explains his ongoing appeal to disillusioned former Marxists as well as to campaigners against the related phenomena of economic globalisation and American imperialism. On the other hand, even this aspect remains problematic and must be approached carefully. Works such as Political Theology seem hell-bent on developing radical, even quasi-nihilistic, ideas about legality and sovereignty almost for their own sake, and as a quasi-theatrical shock-tactic to stir up debate; whilst displaying little concern for their pragmatic institutional or political implications (cf Schmitt 1988). By contrast, other writings published shortly afterwards in the mid-1920s, such as Roman Catholicism and Political Form, articulate a starkly opposing stance, a moderate, sometimes even conservative and defensive, form of political Catholicism (Schmitt 1996b). And yet two instances of Schmitt’s pre-war and post-war writings, Political Theology and Theory of the Partisan respectively, contain sympathetic discussions of the works of leftist revolutionaries, including George Sorel, Mao and Che Guevara (Schmitt 2005a: ch 4; Schmitt 2007: 54–8). These latter analyses are at least as sympathetic as Schmitt’s account of radical right-wing Catholic counter-revolutionaries with whom Schmitt is more commonly associated (Schmitt 2005a: ch 4). As Seitzer rightly notes, the result is that Schmitt’s writings resist standard classifications and distinctions: Schmitt’s continuing hold on the imagination of theorists across the political spectrum is partly due to the rhetoric brilliance of his writings. Schmitt’s gift for conceptual formulations that are simultaneously lucid and suggestive, along with at times surprising caginess about his own intentions, combine to frustrate efforts at easy ideological categorisation. The ineffectiveness of such standard scholarly labor-saving devices complicates the task of interpreting Schmitt. (Seitzer 1998: 282) Furthermore, Schmitt’s Political Romanticism – together with his early neoKantian studies of law – lack any overt political stance whatsoever (Schmitt 1912; Schmitt 1914). However, later studies – such as the Concept of the Political – set out a frontal attack against liberalism’s pretensions to political

An afterlife for Carl Schmitt?  27

neutrality, as a particularly insidious expression of the politics of depoliticisation and neutralisation (Schmitt 1993; Schmitt 1996a). For these, but also for more general theoretical reasons, contemporary writers on Schmitt have no choice but to selectively reconstruct a disparate and often internally contradictory body of work, spanning over five decades and contributing potential interdisciplinary insights to a remarkable number of scholarly fields. For Schmittian legal theorists, there can be no evasion of personal responsibility for the choice of topics and approaches; and hence a need for self-critical methodological reflections and provisional justifications of a type I have tried to exemplify in this chapter. The upshot of these various ‘hermeneutical’ (or self-consciously interpretative) points is to make a case for developing an optimally relevant ‘Schmittian’ approach to legal theory that is fit for the 21st century, and which – in marked contrast to Schmitt’s own dogmatic self-confidence – includes a strong sense of this model’s actual or potential limitations, blind-spots, gaps and assumptions. In addition, when taken seriously as scholarship at the margins and border-zone of legal and political theory, Schmitt’s work helps promote a distinctive form of interdisciplinarity within legal theory. It exemplifies a historical-conceptual approach to law embracing – in part – an imminent critique (and self-critique) of ideology: one that often resembles that of Hegel and left-Hegelianism (Seitzer 1998; cf Pearson and Salter 1999). This methodology breaks out of those disciplinary limitations that purport to insulate jurisprudence as a stand-alone academic subject from sociology, empirical historical analysis and political theory, and to ‘safeguard’ the subdiscipline of international law (typically interpreted by legal positivism as a self-contained normative realm) from a historically-informed study of the geopolitics of conflictual international relations. If nothing else, I hope this book ‘does justice’ to this style of radical questioning and sense of intellectual adventure pursued by a wide-ranging, interdisciplinary analysis emerging into a context where the journeys can often be more interesting than the destinations, none of which – this side of the magnetic pull of the cemetery – can ever be final. Having given an initial explanation and would-be justification for this work’s way of addressing and ‘coming to terms’ with Schmitt’s writings, the next chapter now turns to its specific contents and themes, and to the clarification of some of the key specialist categories and terminology that it deploys. These definitions and clarifications of Schmittian conceptions of ideology, politics and law remain provisional and parochial to their specific contexts of application.

Chapter 2

On politics, law and ideology

Today nothing is more modern than the onslaught against the political…. There must no longer be political problems, only organizational technical and economic-sociological ones. (Carl Schmitt, Political Theology, 2005a: 65) Would the grand ‘world police intervention’, which NATO conducts in the name of world-civil-society then boil down to an ordinary war, indeed a dirty war, that only brought even greater suffering to the Balkans? Wouldn’t that also mean to put wind into the sails of Carl Schmitt, who apparently always knew better: ‘Whoever uses the term humanity wants to betray’? Schmitt expressed his anti-humanism in the famous formula of: ‘Humanity, bestiality’. The nagging doubt whether legal pacifism is itself in the end the wrong bet, is the most disturbing of the sources of disquiet. (Jürgen Habermas, ‘Bestiality and Humanity: A war on the border between law and morality’, 1999)5 This chapter addresses the significance of the key terms and ideas of its title for a Schmittian theory of modern law, starting with that of ‘politics’ or, more precisely, the mediation of law by ‘the political’. However, the bulk of this chapter will address the related theme of law as including an ideological dimension, in particular how the ideologies of liberal constitutionalism project a depoliticised model of ‘legality’. Schmitt claims that, whenever it is subject to closer and more critical examination, the apparent coherence of this model unravels into a series of difficulties and contradictions. In addition, the question arises as to whether liberal ideologies project an unduly narrow conception of law, and hence legal scholarship. Does this

5  Bestialität und Humanität, published in Die Zeit, 54, 18, 29 April 1999: 1–8. Tr. Franz Solms-Laubach.

On politics, law and ideology  29

model fail to recognise not only the essentially interpretative nature of the legal enterprise, but also the need for scholars to develop a wider and more contextual form of analysis? Do such ideologies generally exaggerate the ‘determinacy’ of legal norms, at the expense of a realistic grasp of the crucial and inevitable role of discretion within the legal process, including the question of who decides and upon what concrete basis? If we can identify such distortions, then what are their implications for liberalism’s ideological interpretation of the nature of the judicial role and, in particular, the remarkably ideological politics of depoliticising the role of judges? Indeed, can a suitably critical interpretation of these particular ideological projections of the nature of law and the legal process expose more general contradictions in such ‘depoliticisation agendas’ – including within their specifically ‘jurisprudential’ expressions, such as Kelsenian legal positivism? Schmitt extended his critique of liberal constitutional ideologies to include the related topic of the operation of ‘liberal cosmopolitan’ ideologies and the ‘ideology of humanity’ within international law as distinct variants upon liberalism more generally (Zolo 2002). Finally, it may prove useful to briefly outline Schmitt’s distinctly illiberal and broadly Hobbesian model of law as an expression of power and authority. Is this able to retrieve a number of the material and socio-legal dimensions that liberal ideologies typically need to exclude precisely in order to vindicate, and then give a spurious impression of legitimacy for, their own approach? Will the distinctly ideological nature of liberal projections become clearer if we view them from the alternative perspective of a Schmittian model of law? The concept of ‘strategic myth’, which constitutes a major theme for the second half of this work, will be clarified in a later section devoted to this topic.

The politics of law and the law of politics How are the expressions ‘politics’ and ‘law’ of this book’s title best interpreted in this context? Perhaps, they are best understood as discrete and mutually exclusive fields, or as mutually dependent practices? Politics can be usefully thought of in Schmittian terms not as a given ‘domain’ – akin to the distinct realms of literature, industry or education. Instead, it signals an ever-present possibility for conflicts to arise in any sphere in which the participants’ sense of positive association and disassociation intensify to the point where – in relation to a disputed issue – they regroup into polarised ‘us’ versus ‘them’ factions (Schmitt 1996a: 26–37). This is an expressly ‘formal’ and descriptive-analytical definition (lacking any overt moral prescriptions as to how political formations ought to mobilise in pursuit of which concrete goals). As such, it is not to be confused with either a concrete judgement in favour of the specific politics of imperialism and

30  Carl Schmitt: Law as politics, ideology and strategic myth

militarism, or with pacifism or other ‘social ideals’ (Schmitt 1996a: 54). Indeed, later we will see how Schmitt expressly attacks the deceptions and self-deceptions involved in ideological depoliticisation, including that exhibited by the ‘ideology of humanity’. However, his definition of the political does not offer extrinsic and substantive moral criteria for affirming any specific values as ‘worthy goals’ for a progressive political struggle and crusade, whilst negating others as inauthentic or regressive. Indeed, he expressly distinguishes his definition from an earlier militaristic substantive conception of Erich Kaufmann (Schmitt 1996: 33 n 12, 55). Schmitt defines political activity as an emerging product of a polarisation around relations of group affinity, neutrality and hostility. In ‘exceptional’ moments of perceived national crisis, the sovereignty of the state becomes emphatically present by the executive seeking to mobilise citizens against a ‘public enemy’ identified and named as such by these leaders (Schmitt 1996a; Schmitt 2005a: 6, 13). Politics is a public and collective phenomenon, not to be confused with purely interpersonal animosities and conflict between private individuals for example. In this sense, even religions with universalistic and otherworldly aspirations, such as Christianity, can become emphatically political whenever theological-doctrinal differences lead, for instance, to schisms, sectarian conflicts, inquisitions, religious-creedal wars, contested reformations etc. By the same token, economic life becomes intensely political whenever it results in the formation of opposed social classes consciously engaged in a type of class conflict where one party identifies itself as ‘oppressed’ and/or ‘exploited’ by the other, and therefore seeks revolutionary social transformation through a general strike or other insurrectionary form of direct action (Schmitt 1988: ch 4). A Schmittian approach to law is committed to the idea that being human involves immersion in ever-present possibilities for collective conflict arising from virtually every conceivable form of social activity. Politics remains a basic concept of human anthropology because we are primarily political animals for whom the unrealistic prospect of the entire disappearance of the political would entail drastic, if perhaps ‘comfortable’, dehumanisation. Whilst political activity endures over time, specific political formations, such as that centred on the medieval or modern state, remain contingent and vulnerable to collapse. Every overtly political phenomenon, including law, can be challenged through effective depoliticisation and apparent neutralisation of conflicts. If successful, these tendencies at least partly deprive the presence of law of its specific political character. Because programmes of depoliticisation, which often take the form of liberal ideological reductions of issues to either ethics or economics, are themselves polemical movements, they remain trapped in – and ironically exhibit – the logic of the political itself. Depoliticisation of law can thus be subjected to the same ironic blowback-reversal as a ‘war to end all wars’, or efforts to end cannibalism by eating the last cannibal.

On politics, law and ideology  31

For Schmitt, a key achievement of early modernity within Europe was to displace the power of the medieval Church by securing a form of national sovereignty involving a political-legislative monopoly. That is, an exclusive authority to enact laws defining the nation’s principles, values and ideals – including those for whom citizens can be conscripted into military service to fight for and defend. Faced with external or internal threats to a nation’s way of life, citizens typically look to the state, not paramilitary militias or private corporations for example, to safeguard their security. This hard-won monopoly remains at risk from contestation by imperialistic foreign powers, revolutionary groups deploying partisan warfare, and international terrorism. Each of these can be expected to seek to capture state power in the name of a supposedly higher secular or religious principle of legitimacy. The modern state can expressly contest such movements forcefully, and/or seek to ‘buy off’ or redirect their demands through a variety of policy measures, including welfare state initiatives, the encouragement of depoliticising models of group self-identity and anti-terrorism strategies (Schmitt 1996a; Schmitt 2007). Depoliticisation strategies can include the promotion of idealistic pacifist ideologies. Typically, these reject the possibility of identifying public enemies because, to the delight of a nation’s real enemies, ultimately nothing is deemed sufficiently meaningful and valuable to defend through the mobilisation of military force, not even pacifist ideals. By contrast, the modern state cannot renounce politics or project the possibility of its dissolution in favour of a communist utopia involving the ‘withering away of law’ and the mere ‘administration of things’. Instead, the logic of the political dictates that it must seek to deploy sovereign power to preserve an effective system of criminal law, together with a police, security and military service capable of preventing state power being seized by such designated enemies, whether these are domestic or international. The point concerning politics interpreted as the relative degree of intensity of friend and enemy distinctions and oppositions, applies to all distinctive spheres of civil society. Within the legal sphere, this includes testcase litigation in which, for example, victims of defective medicine bring a case against a combination of drug companies and their regulators, law reform controversies where rival social groups take diametrically opposed positions, and even the frequently factionalised internal politics of law schools and academic conferences. Here, individuals meet but frameworks of ideas and assumptions often fail to enter into any meaningful or mutually enriching dialogue. Recent historical experience makes it clear that promoters of rival ideological agendas may seek to obtain government power directly (or indirectly through sponsorship of political parties) in order, for example, to either optimise or minimise the scope of ‘private enterprise’. Whichever side emerges triumphant during the resulting ideological conflict will

32  Carl Schmitt: Law as politics, ideology and strategic myth

typically promote a legislative programme that gives some – albeit often diluted – effect to its distinctive ideological ‘vision’, to the realisation of its mythic beliefs disguised as self-evident truths. In this respect, debates over law reform can also take shape as distinctly political debates as to what ought to count as ‘the way forward’ in terms of public policy and the attempted ‘steering’ of society more generally. Equally, specific legal devices, such as judicial review and human rights remedies, provide judges with restricted opportunities for striking down government decisions and entire policies, even in fields such as counterterrorism and other areas where they are fulfilling specific election pledges. Where this takes place, even on purely technical and procedural grounds that appear politically neutral, the judges will inevitably be accused of engaging in a one-sided form of political partisanship. Judges who overtly change the meaning or scope of a legal doctrine on policy grounds will risk charges of usurping the political role of the legislature. And yet it is widely recognised that the distinction between the faithful application of law and judicial law-making is a hard one to make in practice. This is because application presupposes reinterpretation, and the latter is – to a greater or lesser extent – inevitably selective involving value-driven choices between alternatives. ‘Politics’ also arises within the legal field between judges who follow the tradition of conservative-statist deference to government claims relating to claimed national security imperatives, and others who take the more liberal constitutionalist stance of human rights fundamentalism.6 This second grouping amongst the senior judiciary are concerned to hold government ministers to account by insisting that they must clearly demonstrate the existence not only of valid legal grounds for their determinations of national security, but also that all resulting decisions avoid appearing either discriminatory or disproportionate.7 In such contexts, there is a political conflict of orientation which leads, over time, to a reversal of previously dominant judicial orientations. These become transformed incrementally as such ultra-liberal alternatives come to make their presence felt within the highest courts. Such instances of institutional politics within law need to be understood as an extended war for supremacy between contrasting ideological orientations with a range of cases amounting to specific battles. Given that 19th- and even 18th-century cases can still serve as contemporary precedents, the politics involved in the overcoming and

6 See Lord Denning’s deferential orientation in ex parte Hosenball [1977] 3 All ER 452. 7 See, for example, Lord Hoffmann’s contributions to A v Secretary of State for the Home Department [2004] UKHL 56; and A v Secretary of State for the Home Department [2005] UKHL 71, which mark a sea change from the tradition of deference.

On politics, law and ideology  33

displacement of one judicial orientation by another is often a drawn out process of gradual and cross – as well as intra-generational – change, in which the conflictual-political dimension is rarely openly acknowledged. However, a covert form of conflict between divergent judicial orientations, understood as rival ideologies, is at least as political as any overt and widely acknowledged one. Where it is not possible to identify actual or at least potential friend/ enemy groupings amongst the judiciary, the legal profession more generally, or between different branches of state involved in the separation of powers, then politics within the legal sphere continues to exist. However, it endures in a state of latency or dormancy (Schmitt 1999). In short, the inclusion of ‘politics’ in my book title refers to the various ways in which our experience of law shows that it is implicated in real or potentially conflictual situations in any field of social action to which it could be applied, including interstate relations. Furthermore, the invariant defining quality of politics is a form of association/disassociation sufficient to generate the differentiation of ‘friends’ from both ‘enemies’ and ‘neutrals’. On this Schmittian definition of politics, it is possible to imagine – but perhaps only imagine – a utopian global situation of a unified ‘humanity-atlarge’ governed by a universally accepted world government of uncontested legitimacy, and free of all polarised oppositions and ‘us versus them’ relations. That is, a totally depoliticised and neutralised context where, for example, international criminal law, war crimes trials and humanitarian law would have become anachronistic, a mere reminder of times past. However, the world in which we now wake up to every morning shows little signs of even approximating this redemptive pipe dream of a secularised heaven on earth, the opium-fantasy of liberal cosmopolitanism all too often deployed as a moralistic benchmark to slander the politics of existing institutional practices of nation states. Another decisive area of the politics of law concerns the all too relevant question of the public law practice of declaring a ‘state of emergency’, which Schmitt analyses in Political Theology for example (Schmitt 2005a). The very process of coming to a definition of this term is complex. It is situated at the limit and intersection of both the norms of public law doctrine and ‘exceptional’ political events that characterise the factual side of the state of emergency (Schmitt 2005a: 6, 13). The latter must, it seems, be interpreted through the field of politics, rather than through those of public law. Hence, the necessary effort of public lawyers to come to terms with emergency powers laws remains caught in the contradiction of analysing ‘legal measures’ that cannot themselves be fully understood from a ‘strictly legal’ orientation. This field of scholarship has to address a state of emergency through its distinctive framework(s), whilst recognising that this typically exhibits a legal form of something essentially political and

34  Carl Schmitt: Law as politics, ideology and strategic myth

lacking intrinsic legal form. Such analysis often finds itself transported through law to something extra-legal but nevertheless included uneasily within legal discourse. Furthermore, this is a field in which law authorises the suspension of its exercise, and in theorising this we are confronted with the instructive mediation and overpowering of such legal measures by real-life events, whose significance is irreducible to their legal meaning and implications. Here, an apparent or presumed difference arises between public law measures and emphatically political realities that embrace terrorism, civil war, revolutionary insurrection and mass civil disobedience or – in Schmittian terminology – ‘the right to resist’. Public law has to answer the question of whether the dictatorial mode of governance authorised by lawsuspending emergency powers legislation has remained an exceptional response to extraordinary events predestined to end once the ‘normal situation’ has been restored (Schmitt 2005a: 6, 13)? Alternatively, has it become extended or ‘normalised’ as a ‘sovereign’ form of dictatorship? Answering this question, which Giorgio Agamben has explored, requires reflections that are as much political as legal. In short, the effort of public lawyers to interpret emergency powers measures brings home both the relative difference between law and politics as well as their deeper and inescapable bond.

Law as an ideological practice involving depoliticisation It is reasonable to expect a book about Schmittian legal theory entitled Law as Ideology, Politics and Strategic Myth to include a section on that aspect of legal experience which can be usefully identified as ‘ideological’ in some, as yet unclarified, sense of this difficult concept. However, Schmitt does not provide an express and general ‘theory of ideology’. What his writings do offer, however, is a fairly detailed and critical account of the qualities and operation of liberal ideologies of legality, together with an equally critical, even polemical, account of the ‘ideology of humanity’. The latter, he claims, is focused primarily upon the discourse of a form of international law decisively shaped by the victors of the 20th century world wars, particularly the United States. The technocratic activity of interpreting law and politics as mutually exclusive, of treating the realm of politics as diametrically opposed to that of ‘law’ (narrowly defined), and interpreting the former as a contaminating influence that allegedly pollutes ‘strict legal analysis’ or rule-based (or ‘normativist’) forms of judicial decision-making, will be termed ‘depoliticisation’. Its results can be labelled and understood as a type of ‘neutralisation’ (Schmitt 1993). This deeply political practice, itself sometimes founded upon its own strategic myths, is a prime example of that

On politics, law and ideology  35

which this work identifies as ‘ideology’. However, the notion of ideology at work here cannot be conflated with, or reduced to, the idea of myth. One distinctive feature of ideology, at least within a Schmittian sense of this term, is the strategic misrepresentation of the contents of a particular agenda and set of specific interests associated with it, as though they were somehow universal, that is, as embodying ‘the national interest’, the ‘needs of humanity’, universally applicable ‘human rights imperatives’ etc. Through a policy and practice of disguised monopolisation, coercive homogenisation (one American-specific size fits all) and strategic deception, such forms of ideological misrepresentation seek to displace all other rival agendas and interests. In turn, this is clearly invidious to any surviving domestic or international types of substantive pluralism. Indeed, it risks becoming ‘imperialistic’ wherever a major power, or superpower, successfully implements and institutionalises such a supposedly universalistic orientation. Whilst ideologies and myths can overlap, the qualities just discussed are, perhaps, better classified as the hallmarks of a Schmittian understanding of ideology. Those seeking to build up a more general Schmittian theory of the ideological dimension of legal discourse could start with his discussion of the ideology of humanity, discussed below, and then cross reference the results to his various accounts of the distinctly ideological aspects of liberalism. Others more interested in a critical analysis of how contemporary international law deploys notions of humanity and its various offshoots, such as ‘humanitarian intervention’, ‘crimes against humanity’ and ‘human rights’, are likely to find the later section devoted to this rich in arguments relevant to their project (Brown 2007). Schmittian efforts to analyse legal ideologies as such are already critical in nature insofar as they typically present their cognitive claims as somehow self-evident and objective truths warranting uncritical acceptance. By contrast, Schmittian analysis seeks to expose the strictly relative and contingent qualities of legal ideologies, their artificially ‘constructed’ nature that is perpetually vulnerable to de-construction and – more generally – being reinterpreted otherwise. It thus analyses them against their own grain precisely to emphasise those distinctly ideological qualities and operations that are too often strategically glossed over as part of a selflegitimating strategy. Here, ideological propositions are often disguised as straightforward and non-political statements of objective fact, as part of what is deemed ‘obvious’ to ‘common sense’, disconnected from any underpinning political agendas or material interests. In reversing such ideological operations of depoliticisation, Schmittian critics of law risk exposing the influence of their own ideological biases and particularistic interests: something that simply has to be accepted as a poetic and ironic form of justice. Schmitt recognises that the historically-informed Weberian sociology of concepts,

36  Carl Schmitt: Law as politics, ideology and strategic myth

which he occasionally practices as a research method, both addresses the presence of ideology within legal practices, and itself ‘presupposes a consistent and radical ideology’, where ‘radical’ means ‘comprehensively thought through’ (Schmitt 2005b: 42). Yet, Schmitt expressly rejects the idea that ideology can be adequately understood through the lens of a Marxist dichotomy between materialism and idealism. The latter assigns the study of ideology to either an idealist approach, or reduces it to a mere ‘reflex’ or ‘reflections’ of a supposedly underlying material-economic process related to the capitalist ‘means of production’ (Schmitt 2005b: 42–3). The partial autonomy of cultural, intellectual and scientific realms, including those of a Marxist social science reliant upon a science/ideology dichotomy, is thereby subverted. Schmitt objects that Marxist theories of ideology begin by deploying an undialectical opposition between materialism and idealism, locating ideology as a derivative ‘superstructure’ to an all-determining economic sub-structure. As a result, all superstructural phenomena, ranging from religious belief to the scientific theory of relativity, are ‘explained’ in a reductive materialist fashion as mere causal products of underlying capitalist economic relations. This, of course, rebounds back to undermine the scientific status of the Marxist theory of ideology itself, rendering it little more than a ‘caricature’ of an academic approach (Schmitt 2005b: 42–3). By contrast, the Schmittian model of ideology is far closer to the cultural-interpretative orientation of Max Weber’s sociology of law, which – for all its emphasis on material and technological factors – Marxists typically reject as somehow ‘idealist’.

Liberal ideologies of legality The category (perhaps more precisely categories) of ‘liberalism’ is complex; it needs to be redefined anew and variously within different moral, economic, jurisprudential and constitutional contexts. A Schmittian approach needs to retain some sense that the liberal constitutionalism of Mill and Dicey has some connection with – as well as a range of differences from – both the economic neo-liberalism of Adam Smith and Hayek, and liberal types of moral and political philosophy. Provisionally, and as far as the present context is concerned, it is useful to identify as a key feature of liberalism the belief that a modern legal order consists of general ‘norms’ (rule and principles) that determine clearly the relationship of supposedly ‘free’ and ‘autonomous’ individual legal subjects to one another, in terms of their ‘positive’ rights and obligations contained, for instance, in various contractual agreements entered into without coercion. For liberals, law is typically deemed to be an essentially positive institution, with the provision of a legal system one of only three absolutely necessary

On politics, law and ideology  37

public services that even an ideal minimal or ‘night-watchman’ state is dutybound to provide, alongside the police and military. Law is deemed a vital and positive institution. This is because it supposedly gives individuals a range of civil and political rights whose enforcement facilitates their ‘natural’ practice of political and economic individualism. It does so by subjecting state power and sovereignty to a series of institutional restraints, checks and balances including the separation of powers, judicial review, a prioritisation of purely civil and political ‘negative’ rights, and the rule of law (Schmitt 1988: 39–41; Schmitt 2005a: 7, 10–11). Other aspects of Schmitt’s complex, and not always consistent, understanding of liberalism in its various guises and disguises, will emerge and receive fuller illustration in many later sections of this book. For present purposes, ‘liberal cosmopolitanism’ appears as a tendency within Kantian and neo-Kantian schools of legal and political theory to advance arguments founded upon the presumed validity of abstractly universal categories, including ‘global justice’, as key to the analysis of international law and international relations. It is currently a highly diverse movement that resists a single definition as divergent strands of cosmopolitan approaches span international criminal law, political theory, international relations, social theory and philosophy. However, Chandler concisely sums up a key tendency: ‘The aspiration to engage in, construct, or recognize the existence of a post-territorial political community, a community of broader humanity, has been articulated in liberal terms as cosmopolitanism, driven by global civil society’ (Chandler 2008: 53). This tendency aims to supersede the traditional centrality of the modern nation state to domestic and transnational legal analysis. It does so by both promoting universalistic approaches to ‘democracy’, ‘human’ rights and ‘rights’ more generally, and endorsing the growth of ‘universal jurisdiction’ within international law and transnational bodies, such as the International Criminal Court. Typically, all counter-arguments founded upon national sovereignty as the least worst vehicle for optimally democratic forms of citizenship and governance, are presumed anachronistic, unduly conservative, even in one sense ‘false’ (Chandler 2008: 53–4). Liberal cosmopolitanism typically interprets abstract universal categories and spatially-ungrounded entities as if they are transcendent to, and superior than, existing state-centred legal institutions (Zolo 1997). Hence, the concrete rights of citizens provided for by historically specific and politically contestable constitutional arrangements and statutory measures of particular nation states, are relegated to a lower position on the assumed ‘totem pole’ of rights, and indeed earmarked for redundancy and substitution by cosmopolitan alternatives. This is because of their historical contingency, limited territorial scope and particularity. Here, supposedly universal-international ‘human rights’ aspiring to universal jurisdiction are located at the top of a presumed totem pole, and

38  Carl Schmitt: Law as politics, ideology and strategic myth

thereby effectively outrank and overpower ‘mere citizenship rights’, which belong only to a specific people and are restricted to a given territorial context of application and enforcement. This myth endorses the idea that one’s domestic legal obligations to obey the properly enacted domestic law, even of a murderous dictatorship that tortures to death dissenters, provides no legal defence to a charge before a international tribunal that such legally required actions constituted a ‘crime against humanity’ – as defined by supposedly ‘higher’ cosmopolitan law. To counter possible misunderstanding, this study addresses the liberal myths of cosmopolitan legality and justice and ‘global civil society’ in this, and no other, sense of this richly ambiguous term. After such preliminary clarification of terms, let us now turn to Schmitt’s critical analysis of the ‘ideological’ framework of liberal legality. Schmitt does not claim that liberalism is the only ideological practice relevant to the study of law. However, compared with Marxist, Fascist and anarchist ideologies of the state and law, he devotes far more attention to liberal ideological practices. This is presumably because of their status as a historically achieved and pervasive orthodoxy, particularly when advanced in conjunction with both legal positivism and contemporary, that is, secularised, versions of natural law theories clothed in the rhetoric of ‘human rights’. The contradictions stemming from this marriage of incompatible theoretical foundations, which are rightly analysed within jurisprudence as alternatives, hardly requires further comment. Instead, the important thing here is to notice how effective liberal ideology can be in glossing over these and other contradictions; it does so by promoting an interpretative schema portraying a liberal model of legality as if it were a largely rational, coherent, worthwhile and essential element of social life as such. Schmitt’s analysis of this ideological practice is ‘radical’ in the sense that it seeks to go to the root of its core and underlying assumptions, biases and theoretical presuppositions. Schmitt argues that, as a complex system of distinctly ideological thought, political commitment and belief, liberalism rests upon a series of largely taken-for-granted dichotomies (Schmitt 2004a: 52). The suspicion of liberal thought towards executive action in general, and administrative and judicial discretion in particular, rests upon the perceived need to set up ideal standards, and then depict institutional realities both through their lens and as their embodiment. These idealisations are founded upon the following distinctions treated as mutually exclusive and ‘either/or’ dichotomies (Schmitt 2004a: 97): •

The separation of the scientific-positivist study of ‘the law’, defined as justified state norms, as distinct from an analytical focus upon empirical institutional questions concerning ‘legal application’ or enforcement, in which decisions are made with respect to individual cases.

On politics, law and ideology  39

• •

• •

• • •

General, given and enduring statutes, are distinguished from contextspecific and ad hoc administrative measures, including delegated legislation and statutory instruments (Schmitt 2004b: 17, 53, 82–6). The reasonableness of abstract general rules (or ratio), must be differentiated from the ‘alleged’ irrationality of blind and emotionallycharged political will (or voluntas) (Schmitt 2004a: 49, 59; Schmitt 2005a: 42, 45). Legal norms, as idealised phenomena as distinct from the empirical segment of social reality being subjected to legal regulation in practice (Schmitt 2004a: 52). The idealism of reasoned principled decision-making, which is grounded purely upon the requirements of legal norms considered in isolation, is distinguished from unprincipled and instrumental forms of pragmatism and utilitarianism, which are focused mainly upon the practical implications of different possible decisions (Schmitt 2004a: 4, 11, 70–1). Law strictly defined as technical rules, as opposed to manifestations of politics and expressions of political goals through expressly recognised ‘policy factors’ (Schmitt 2004a: 97). Objectively based and impersonal modes of legal judgement, as distinct from to subjective-grounded decision-making (Schmitt 2004a: 59, 65). Objective truths of law identified through value-free legal science, as opposed to ideological assertions reflecting the social authority of the interpreter within a hierarchy (Schmitt 2004a: 49, 64).

Many of these radical ideological distinctions are, according to Schmitt, rooted in earlier, metaphysical and theological modes of thinking. However, secular forms of liberalism relevant to legal studies rely particularly upon the law/ politics, normative/empirical and objective/subjective dichotomies. These have been expressed most emphatically in the work of Hans Kelsen and other legal positivists (Schmitt 2004a: 59).8 On the basis of the assumed truth of these dichotomies, liberalism claims to be able to distance the alleged ‘purity’ and ‘value-neutrality’ of strictly legal analysis and application from supposedly ‘outside’ influences deriving from all manner of political, moral and other commitments. However, the latter still contain inescapable constitutional questions concerning legitimacy, governmental effectiveness, power and sovereignty, which – despite being excluded from the ideological agenda of liberalism – continue to make their presence felt (Schmitt 2004a: 65).

8  Hereafter the term liberal--positivism will be used as shorthand for this key position that combines normativism with legal positivism, without implying that all liberal positions are positivist or that positivism is essentially liberal in nature.

40  Carl Schmitt: Law as politics, ideology and strategic myth

Indeed, Schmitt maintains that liberal ideology typically dismisses the interjection of every supposedly ‘non-legal’ or ‘extra-juristic’ consideration as ideological, economic, sociological, moralistic or political (Schmitt 2004a: 65). Legal analysis is thereby redefined as the comparatively abstract and legalistic interpretation of doctrine (‘law in books’). This must be carried out in isolation from those empirical ‘contextual factors’ that other ‘non-legal’ disciplines, such as the sociology of law and criminology, draw upon to explain specific processes and events within the legal and constitutional systems (‘law in action’) (Schmitt 2004a: 62–3, 70–1). Such ideological practices seek not only to make clear-cut and radical distinctions between supposedly mutually exclusive phenomena but also bestow constitutional legitimacy only upon one side, or half, of the various pairings and oppositions set out above. For example, generally applicable statutes are defined as exhibiting the essence of valid law in general because they manifest the principle of ‘equal treatment’ central to the liberal reinterpretation of the rule of law, whilst, at the same time, firmly disqualifying the other side of this pairing: namely, ad hoc discretionary measures directed at specific contexts, institutions or groups (Schmitt, 2004b: 81). In Legality and Legitimacy, Schmitt addresses the normativism of the ideology of liberal constitutionalism, which he terms the ‘legislative state’. He presents an ideal type of model of the essential and defining qualities of this ideological framework, whilst acknowledging that, in practice, it appears mixed to various degrees with the features of other modern models of constitutional governance, which he terms the ‘administrative state’,9 ‘jurisdictional state’10 and ‘governmental state’11 (Schmitt 2004b: 4–5). Indeed, part of his critique of the liberal ideological presumptions of Kelsen’s theory is that it confuses this ‘ideal type’ with the more complex and changing realities of modern legal systems, which tend to combine, in varying proportions, features of each of these models (Schmitt 2004b: 4; Schmitt 2008a: 59 ff). Schmitt defines the qualities and ideological assumptions of the legislative state as a constitutional system founded upon an underlying consensus expressed in the ‘norms’ that make up its constitutional and legal systems. It is a ‘particular type of political system that is distinctive in that norms … are the highest and decisive expression of the community will’. In this mode

 9 This shares many features of bureaucratic governance though specific legislative measures geared to concrete policy goals with a modern welfare state. 10  Where judges exercise an elevated and quasi--sovereign role. 11 A system of authoritarian dictatorial personal rule by a strong head of state unrestricted by liberal constitutional principles or checks and balances.

On politics, law and ideology  41

of governance, parliament is deemed to have a central and superior status, to be the site of sovereignty, because it is treated as the formal source of such norms. Despite possessing formal sovereignty, the legislature ‘does not govern directly, nor does it execute laws itself. It merely establishes valid norms, in whose name officials bound by statute to enforce the law exercise state power’ (Schmitt 2004b: 4). According to liberal ideology, the legislative state is characterised by the inappropriately named liberal principle of the ‘rule of law’ where ‘“laws govern” not men, authorities or non-elected governments. More precisely: laws do not rule; they are valid only as norms’ (Schmitt 2004b: 4). In other words, insofar as state officials follow the implications of legal norms that authorise and govern their functions, no one in particular ‘rules’ in the sense of being able to assert individualised and personal authority over others. Whilst there is clearly a relationship of ‘subordination to authority’, this concerns not the citizen’s relationship to public officials but rather the latter’s subordination to prior legal norms, which alone authorise their actions in relation to individual citizens. An extreme liberal normativism reduces the conception of the state to that allegedly closed and unified system of norms comprising formal constitutional provisions. Hence, the constitution is treated as the state, with the ‘state treated as something imperative that corresponds to norms, and one sees in the state only a system of norms, a “legal” order, which does not actually exist, though it is valid in normative terms. The legal order, nonetheless, establishes an absolute concept of the constitution because a closed, systematic unity of norms is implemented and rendered equivalent to the state’ (Schmitt 2008a: 63). Lacking any share of state sovereignty, which is ascribed exclusively to law itself, the official’s authority over a citizen stops at the point where they attempt to act beyond the authorisation stemming from the meaning of relevant norms, that is, to exercise extra-normative power: ‘There is no ruling and no [law free] power at all anymore. Whoever exercises power and government acts “on the basis of law” or “in the name of the law”. He does nothing other than what a valid legal norm permits jurisdictionally’ (Schmitt 2004b: 4). Here, regulation by generally applicable norms prevails to the point where ‘all other public functions and substantive affairs must be subordinated to them’ (Schmitt 2004b: 3). This normative reductionism has negative implications for the analysis of welfare state discretion, which will be discussed later. For liberal ideology’s conception of the ‘rule of law’ to operate as objectively as possible, for it to embody state sovereignty, the norms themselves must be optimally determinate and positive: ‘impersonal, that is, general and pre-established, norms that are meant to be lasting and that have a definable, determinable content’ (Schmitt 2004b: 3–4). In addition, the liberal constitutional doctrine of the separation of powers is institutionalised so that: ‘law and legal application, law-maker and officials

42  Carl Schmitt: Law as politics, ideology and strategic myth

responsible for legal application, are separated from one another’ (Schmitt 2004b: 4). Equally, the legislative and the executive functions are kept separate, so that sovereignty is in effect dispersed, and then subjected to a system of balances between executive, parliament and judiciary designed to counteract the concentration of substantive state power (Schmitt 2004b: 53). Schmitt insists that this doctrine of the separation of powers is a ‘directly necessary, constructive, fundamental principle of the legislative state, in which not men and persons rule, but rather where norms are valid’ (Schmitt 2004b: 4). Because sovereignty attaches to a system of norms, not to specific officials or individuals by virtue of their extra-normative status as serfs, freeman and lords, earlier feudal conceptions of hierarchical social power at whose apex stands a divinely appointed monarch, no longer apply. In this sense, within a modern legislative state ‘where only impersonal, valid norms are applied’, there is no longer any ‘rule’, ‘governance’, ‘obedience’ and ‘subordination’ at all. The sole criteria for the legitimacy of state actions and the ‘state exercise of power’ are that of their ‘legality’. In other words, the system of legislative norms comprising the legal and constitutional systems is therefore ‘closed’, in the sense that either a government act is recognised as legitimate because it is validly authorised by prior norms, or it is not (Schmitt 2008a: 62). There can be neither extra-normative sources of constitutional legitimacy, nor extra-normative grounds for challenging the legitimacy of coercive state actions: A closed system of legality grounds the claim to obedience and justifies the suspension of every right of resistance. In this regard, the specific manifestation of the law is the statute, while legality is the particular justification of state coercion. (Schmitt 2004b: 4) For Schmitt, liberal ideological practices elevate their own preferred model of legality through a process of denigrating and displacing as constitutionally illegitimate alternative social democratic and welfare state orientations. As such, liberalism acts as a classic monopoly hostile to effective competition. For instance, in practice, the system of ideological prioritisation of one side of a dichotomy discussed above works to disadvantage the status afforded to judicial and other forms of sovereign discretion because it is most closely associated with those elements of these dichotomies that are disqualified and excluded. In this context, the identification of aspects of, say, discretion and a personal element of choice between alternative judicial interpretations of both ‘material’ facts and ‘relevant’ legal measures, becomes immediately reinterpreted as falling on the prohibited side of a subjective/objective dichotomy (Schmitt 2004a: 65, 91). In turn, this form of ideological reinterpretation provokes the conclusion that, for liberalism,

On politics, law and ideology  43

the forms of administrative and judicial discretion essential to classic welfare state measures necessarily represents an example of constitutionally illicit forms of ‘arbitrariness’, a politicised misuse of state power threatening the ‘basic rights’ of individual freedom, freedom of contract and private property rights (Schmitt 1996a: 21, 41; Schmitt 2004b: 20; Schmitt 2008a: 63). From liberalism’s ideological perspective, the manifestation of administrative discretion associated with modern welfare state interventions into civil society is potentially ‘a dictatorship unbounded by norms and without spirit’ (Schmitt 2004a: 11). It represents an essentially ‘arbitrary’ exercise of unwarranted and unnecessary authority that not only pollutes but also destabilises the legal system’s core of settled doctrinal meanings. Schmitt gives the example of affronts to liberal standards stemming from allegedly ‘arbitrary’ forms of judicial sentencing that fail to ‘faithfully enforce statutes’, or where judges personally invent new criminal offences not based upon prior statutes, established rules and strictly legal principles (Schmitt 2004a: 28). According to this ideological projection, discretionary decision-making within the legal sphere allegedly represents the unwarranted and unnecessary intrusion of ‘subjective’ factors into a process that both can, and should, be strictly ‘objective’. Schmitt claims that such decision-making is redefined as a fall from grace (Schmitt 2004a: 65). Liberal ideologies make the assumption that the discretionary ‘interventions’ of state officials into the workings of civil society will always be questionable unless they can be clearly shown to meet at least two decisive tests: first, that these officials are clearly acting with definite and express authority under a specific power; and secondly, that such officials are exercising their decision-making strictly in accordance with the precise requirements of a given set of legal norms or ‘meta-rules’ (‘rules’ of statutory interpretation, the doctrine of precedent, statutory guidelines etc) (Schmitt 2004a: 85–6). Where these two vital tests are met, the belief is that the validity of a decision will become explicable not in terms of the subjectivity and personal authority of those who actually decided the case, their ideological background, gender, generation, class, race, economic interests and so forth, but rather in terms of the objective meanings of the relevant norms themselves (Schmitt 2004a: 18). On the dubious assumption that the dichotomies it projects are wellfounded and strictly necessary to legal thought, liberal ideology promotes the idea that one can study both law and parliamentary law-making as independent topics in their own right; and to the exclusion of the highly pragmatic and selective application and enforcement of law by a variety of different institutions and agencies. Schmitt argues that the common law emphasis on case-by-case decisionmaking as an independent source of law is more flexible than continental types of legal formalism. However, the attempt to detect an underlying ratio decidendi, the elusive ‘reason for the decision’ defined as a given norm – and

44  Carl Schmitt: Law as politics, ideology and strategic myth

hence ‘binding precedent’, still recuperates aspects of liberal-positivism’s one-sided emphasis upon rules and meta-rules as expressing the essence of law. For liberals, the topic of officials exercising their discretion during both the interpretation and application of legal measures to specific circumstances falls on the ‘wrong side’ of two distinctions: generally applicable statutes versus situation-specific administrative measures and, secondly, ratio versus voluntas (Schmitt 2004a: 18).12 Liberal ideology typically rejects this possibility in favour of a largely abstract and legal positivist analysis of law. This is defined as a closed and coherent system of abstract and isolated norms, and judicial interpretations of both the meaning and scope of such norms presumed to be largely devoid of any policy rationale. Furthermore, according to Schmitt, these underlying either/or dichotomies also make possible a series of ‘presumed congruence and harmonies’. Whilst vindicating a distinctly liberal model of the rule of law, these generate additional negative interpretations of the nature of judicial and official discretion. Such interpretations include the assimilation of the following: first, the reduction of the concept of justice into strict compliance with legality, leading to a model of merely formal and corrective justice, not substantive political or distributive justice (Schmitt 2004b: 29). Secondly, there is the assimilation of ‘law in general’ into generally applicable statutes and substance-free ‘due process’ requirements. By contrast, any potential legitimacy possessed by the discretionary exercise of sovereign power depends, at least partly, upon an affirmation of precisely those terms of these either/or pairings, which liberalism collapses, disqualifies and expels from consideration. For example, the perceived legitimacy of discretionary judgement relies upon its pragmatic and flexible role in actually achieving substantive public policy goals and values, such as politically defined conceptions of ‘social justice’ or ‘social inclusion’. These can, perhaps, only be optimised through context-specific and responsive forms of administrative regulation attuned to the perceived needs of affected parties (Schmitt 2004b: 19, 28–9). Closely related to the liberal ideology of the ‘rule of law’ is the assertion that the exercise of state authority, including that of the judges, should take place subject to generally applicable and enduring statutes related, for example, to the modern welfare state, such as planning regulation, public health and social security. This ideology distinguishes ad hoc administrative ‘measures’ from the generality and objectivity of statutes and (in the common

12 In other words, the adherence of liberalism to a series of either/or distinctions explains the disqualification of the empirical socio--legal study of how discretion actually operates in practice.

On politics, law and ideology  45

law context, long-established constitutional conventions with the force of law),13 which are supposed to apply to all citizens equally. The former are directed to specific contingencies and groups, such as ad hoc redistributive windfall taxes (Schmitt 2004b: 17). General statutes are supposed to realise liberalism’s ideal of a closed and gapless system of constitutional legality of all state actions under the rule of law, which is respectful of the individual’s basic civil and political rights (Schmitt 2004a: 9). Schmitt’s analysis of liberal ideology further suggests that, insofar as officials strictly respect the requirements of the rule of law, then their actions and decisions are expected to exemplify principles of strict ‘legality’. This is typically defined as an exclusively rule-based type of decision-making involving the application of clear and precise norms in a manner that is itself governed by the meta-rules of precedent, statutory interpretation, sentencing guidelines and so forth. He claims that the liberal’s ideological approach to official discretion assumes that legal rules and neutral procedures for their application, ie. ‘meta-rules’, are generally ‘determinate’, in the sense of being clearly defined and generally unambiguous. It follows that they must possess sufficiently clear, unambiguous and determinate content to be capable of retaining a core of fixed meaning(s) across every actual and potential application to a range of different factual contexts. In other words, optimal legality is achievable by means of the enforcement of liberal conceptions of legality, premised upon the deployment of generalised, objective legal norms with a fixed and determinate core of stable meaning, further supported by neutral procedures and meta-rules to guide how rules should be applied to facts. The legality of decisionmaking depends upon subsuming the unique facts and claims of the particular case under general rules, applied in a neutral manner. It follows that they must possess sufficient determinate content to be capable of retaining a core of fixed meaning across every actual and potential application to a range of different factual contexts. In other words, optimal restraint of judicial creativity is achievable by means of the enforcement of liberal conceptions of legality premised upon the deployment of generalised, objective legal norms with a fixed and determinate core of stable meaning, further supported by neutral procedures and meta-rules to guide how rules should be applied to facts. Such determinacy thus ensures the possibility of standards of legality.

13 Schmitt argues that common law regimes can possess an inbuilt corrective to this aspect of extreme formalism centred around the deification of the letter of statutory law owing to the importance widely given to accumulated case-law developed on a case-by-case basis as a partial substitute for legislative codification (Schmitt 2004a: 85).

46  Carl Schmitt: Law as politics, ideology and strategic myth

From this ideological standpoint, the rules and principles of legal doctrine are, and should be, regarded as essentially determinate to the point where it is possible to define precisely what they mean within any particular context of application. The ‘determinate’ nature of legal norms and neutral rule-based procedures and guidelines for judicial decisionmaking, that is, doctrines of precedent, rules of statutory interpretation, etc., both can and should restrain official discretion. For Schmitt, the irony is that these are attempts to cut down discretion within the application of law through meta-rules whose application in practice multiplies this phenomenon (Schmitt 2004a: 85). In short, standards of legality require that judges apply statutory rules in an apparently ‘objective’ manner consistent with various meta-rules designed to further minimise the scope for judicial discretion. According to Schmitt’s analysis, liberal ideologies aims to promote a strictly rule and meta-rule-based type of decision-making because this is supposed to represent a defining characteristic of a properly functioning modern constitutional state enshrining the rule of law. This feature allegedly sets it apart from, and superior to, the comparative ‘lawlessness’ of both earlier feudal regimes and more recent socialist governments (Schmitt 2004b: 18). Schmitt suggests that liberals follow Hobbes in believing that the only alternative to a legalistic model of decision-making strictly governed by given and determinate rules, neutral procedures and meta-rules, is a return to a proverbial state of nature. That is, a condition of unimaginable strife, desperate disorder and insecurity of both life and property, an ‘orderless struggle of all against all’ (Schmitt 2004a: 62). For example, liberalism requires modern courts to renounce outcome-driven, moralistic or ad hoc forms of decisionmaking, sometimes equated with equity, in which judges decide in favour of whichever party they find most deserving in terms of criteria of justice and good conscience. According to Schmitt, liberalism thereby generates a distinctly positivistic view of law and the preconditions of a stable, and hence predictable, type of legal order based upon a closed and autonomous system of coherent rules and principles – or ‘legal norms’ (Schmitt 2004a: 65). This positive ideal claims that, properly understood, law consists of a closed system of rules, underpinned by even more general principles. According to this ideological model, legal norms occupy a completely different and more elevated plane than mere factual events and actions, a position that allows us to identify liberal ideologies as committed to one type of ‘normativism’ involving either a reduction of non-normative elements of law to norms, or their displacement altogether. The objectivity of law as a stable system of norms stands over and above both the flux of the political process of its creation and reform, and its status ensured by objective application and enforcement of independent judicial experts. Legal norms must be analysed jurisprudentially by addressing questions of technical validity, not in terms of politics or their policy-effectiveness. Their

On politics, law and ideology  47

supposedly elevated state explains why no factual event, no matter how violent or physically destructive, can destroy the continuing validity of a general norm. For Schmitt, the crucial point here is this model’s underlying conception of law as essentially a rule-governed, and hence orderly, system of rules from which all sources of uncertainty, including empirical contingencies, have been rigorously expelled. Law is thus ideologically reinterpreted as a system of: [P]redetermined, general rules and statutes, which are independent of the concrete state of affairs, every manifestation of legal life – every command, every measure, every contract, every decision – turns into a norm. Every concrete order and community disintegrates into a series of effective norms, whose ‘unity’ or ‘system’ is, in turn, only normative. Order essentially consists of the fact that a concrete situation corresponds to general norms by which it is measured. (Schmitt 2004a: 52) In short, according to liberalism’s approach, the only legally significant aspect of disputes consists of how such situations can be reinterpreted in terms of – and through the lens of – doctrinal rules, and those requirements and tests for specific remedies contained in these norms. As already noted, the latter is defined as a closed and generally coherent system of rules and principles. This system is supposed to be utterly detached from the clash of interests, or compromise agreements, or even the distinctive internal way of life of the sub-cultural order of a concrete institutional order within which it is taking place (Schmitt 2004a: 94). Whilst the norms themselves are presumed to be ‘in order’, a generally seamless web lacking contradictions or gaps, the existence of a clash of material interests between the parties to a dispute, and hence factual ‘disorder’ in the real-life field of application, is deemed to be entirely irrelevant. Their only relevance is as a source of ‘evidence’ for a doctrinal argument relating to the applicability of a particular legal norm and remedy (do the facts fall inside or outside the doctrinal requirements of a rational legal order), the result of which is to pronounce a certain action as either lawful or unlawful: All valid norms for as long as they are valid, are naturally always ‘in order’; the disorder of the concrete situation, in contrast, does not interest the normativist who is only interested in the norm. Viewed in this [legalistic] way, the concrete state-of-affairs can never in a normativist sense, be disorder as opposed to order. (Schmitt 2004a: 52) Such doctrinal-normative ‘order’ persists because the answer to any legal issue raised by empirical disputes both can, and should, be arrived at

48  Carl Schmitt: Law as politics, ideology and strategic myth

exclusively by reference to the neutral tests and objective requirement of the norms themselves, which remain aloof from, and unaffected by, the concrete reality of the situation (Schmitt 2004a: 65). Liberal ideology thereby relies upon its own projected dichotomy between norms and facts to justify its assertion that the concrete application of legal provisions to empirical matters both can, and should, operate as an almost mechanical process akin to a train company adhering to the stipulations of its own published timetable, or even the purchase of bottled drinks from a vending machine (Schmitt 2004a: 53). In each case, the users of the system who conform to pre-given and determinate normativist requirements can, according to liberal ideology, reasonably expect to receive a measure of certainty of outcome. This is because each element of the legal system follows set rules, routine adherence to which regularly trigger standardised results in an orderly, and hence predictable, fashion. It is their comparative autonomy vis-à-vis every instance of their application that allows us to identify these rules with a high degree of certainty (Schmitt 2004a: 65). According to liberal ideology, doctrinal certainty is possible because judges can arrive at a single correct answer to legal questions if, but only if, they strictly apply the objective tests and requirements contained in the clearly identifiable contents of the relevant norms. This is because the ‘answer’ to any distinctly legal question arising during litigation is assumed to be already substantially contained in the objective meaning of the inviolable norms themselves (Schmitt 2004a: 65). However, certainty in relation to the meaning and applicability of legal doctrine is possible only if those who interpret and apply the law succeed in subordinating their subjectivity to the ‘objective’ meaning of the contents of these rules themselves, thereby respecting the principle of legality already discussed. In short, on Schmitt’s account, liberal ideology needs to give the ideals of certainty and predictability an extremely high priority as goals for a healthy system of law and well-ordered and stable civil society, in which citizens can trust in the reliability of both legal advice and their various arrangements. The problem that such ideology glosses over and suppresses is that many of the factual events that impact upon legal developments are essentially ‘exceptional’, that is, unpredictable and unexpected. In turn, these can result in judges generating decisions with similar qualities. Positivism betrays its own principle of positivity by discounting this element of the concretely experienced reality of law (Schmitt 2005a: 6–7, 13–15). Although liberal ideology within the legal sphere typically takes the form of a normativism which renounces reference to extra-doctrinal policy or other contextual factors, it conveniently exempts itself from this prohibition. Indeed, liberals typically claim, or at least tacitly assume, that doctrinal standards of certainty secure both stability and ‘calculability’ within the

On politics, law and ideology  49

‘external’ realm of commerce and society more generally (Schmitt 2004a: 65). This, in turn, allegedly minimises the cost of litigation because lawyers can – by reference to the objective content of legal norms – generally predict which way a judge would decide a dispute if the matter ultimately went to trial. The party with the weaker case, a matter that expert legal advisers can definitively identify, is given every incentive to settle legal disputes through negotiation. Hence, liberals can claim that it is vital that the quality of certainty characterises both legal doctrine and its meta-rulegoverned judicial application. Certainty is also deemed to exhibit the alleged virtue of not only preserving the integrity and reputation of the legal system, but also enabling calculability and planning within civil society more generally. The model of ‘normal’ social life presupposed by liberal ideology is that of legalism writ large, that is, a ‘calculable functioning of human relationships … as a mere function of predetermined, calculable, general rules’ (Schmitt 2004a: 53). It is claimed that one result of a general adherence to clear legal rules is that civil society can operate smoothly in a standardised and predictable fashion. The ‘trust’ that members of civil society rightly place in the reliability, security and robust quality of transactions regulated by legal norms would, it is claimed, be betrayed if ad hoc, consequentialist and caseby-case forms of legal decision-making were ever allowed to introduce uncertainty (Schmitt 2004a: 66): Insofar as this positivism furnishes a philosophical legal foundation, it leads in the intellectual direction of the interests of an individualistic legal-certainty and appeals to the fact that it would be wrong to disappoint … the expectation, and the ‘trust’ of the legal community evoked through the statute. Therein one beholds the ‘righteousness of positivity’. (Schmitt 2004a: 53) For Schmitt, ‘individualistic legal-certainty’ with respect to both the meaning of legal rules and reliable predictions concerning how these rules will be judicially applied to a range of actual or future factual situations, represents a key ideological value that also gives effect to a vital constitutional imperative (Schmitt 2004a: 66, 90). It provides the basis for other characteristics of liberalism, including ‘well-founded’ attempts to strictly limit the legislature’s deployment of ‘general clauses’ in statutes, such as references to ‘good faith’, ‘reasonable in all the circumstances’ or ‘in the interests of justice’. Such broad terms, often associated with welfare state provisions, are deemed to be problematic. This is because their single correct meaning of the rules within a closed, unified and complete system of strictly internal norms cannot be ‘pinned down’ in advance with any degree of certainty (Schmitt 2004a: 90–1):

50  Carl Schmitt: Law as politics, ideology and strategic myth

From the standpoint of the earlier positivist belief, such warnings and worries [re general clauses] are well-founded. For that belief engendered the idea that only the combinations of legislative decision and rule that forms this positivism guarantees legal certainty. But with general clauses, the in-itself complete, gapless law, which is the ‘foundation of certainty’, escapes. (Schmitt 2004a: 90) Schmitt further claims that such general clauses represent the ‘cuckoo’s egg’ in the nest of ‘the liberal legal system’ (Schmitt 2004a: 91). Liberalism’s ideological projection of its notion of strict legality is, of course, entirely self-serving because it generates an image of liberal legality as pre-empting an ultimate collapse into anarchy. Liberal ideology thereby raises itself up to the vital and elevated constitutional position of ‘resolute defender’ of threatened legality, order and security. Furthermore, the importance liberal ideology places on the interrelated values of legal certainty, the alleged ‘determinacy’ of doctrine, and the resulting ‘predictability’ of law, sets up an ideal of legalistic decision-making, seldom borne out in practice, thereby precluding empirical issues and analysis (Schmitt 2004a: 65). More generally, the rule of law principle becomes ideologically reinterpreted to mean the complete domination of the legal system by liberalism’s own preferred definition of law: law as a closed and politically independent system of generally applicable and objective rules. Hence, Schmitt claims that in order to comply with liberal standards of the rule of law, any decision concerning the legal rights and obligations of specific parties in a concrete case must be clearly ‘mediated by pre-established, general norms’ and fully and exclusively manifest the rule of these norms themselves (Schmitt 2004b: 5). Decision-making by reference to extranormative standards thus violates the expectations generated by liberalism’s ideological model of the rule of law. A statute, constitutional convention, or long-standing common law principle of individual liberty, has an especially elevated place within liberal ideology, as an authoritative legal norm to which all else must be subjected. As an expression of the supremacy of parliamentary sovereignty, liberalism gives general statutes such a priority that, in the event of any conflict, they can even negate the results of a democratic referendum relating, for example, to the meaning and scope of human rights within the United Kingdom (Schmitt 2004b: 73). By contrast, the administrative measures of a welfare state are, it is claimed on the ideological basis of preferences for a minimal or ‘night-watchman’ state, believed to open the door to officials exercising a distinctly discretionary form of governance inconsistent with the requirements of the rule of law. The latter, to which the pejorative term ‘arbitrary’ is frequently attached – as if extra-legal guidelines and conventions

On politics, law and ideology  51

are irrelevant in principle – is supposed to be based largely upon their own political values and public sector ideologies. Although dressed up as delegated or secondary legislation, in practice any administrative measures that empower such officials is supposed to represent an essentially extraconstitutional – and therefore problematic – form of governance (Schmitt 2004b: 4).

Difficulties and contradictions with liberal ideologies Schmitt argues that, at empirical, policy and conceptual levels, liberal ideologies lead to many negative consequences. The remainder of this section will address these unfortunate results for any realistic form of legal analysis concerning the conception of law, the alleged ‘determinacy’ of legal norms/categories, the inevitably interpretative nature of the legal process and, finally, the creative or legislative aspect of the judicial role. To ensure and reiterate the credibility of its overall ideological orientation, however, these difficulties and contradictions have to be ignored, glossed over or otherwise disguised.

An unduly narrow definition of law The first cluster of difficulties Schmitt identifies concern liberalism’s ideological deployment and enforcement of an unduly narrow definition of law, and hence legal analysis, research and education. Its positivist or ‘black letter’ model of law effectively reduces the field of law to the study of a closed, given and unified system of doctrinal rules detached from social contexts of emergence and application (Schmitt 2008a: 62 ff). This is because other social and political elements, which prior to the emergence of liberalism were generally considered essential, such as sovereign decision and the re-establishing of either a social order, or sub-cultural institutional orders challenged by a dispute, have been effectively eliminated from legal analysis and discussion. And yet without a symbiotic interrelationship between, for example, a family court and the practice of family life, and between law and society more generally, the legal field is arguably reduced to an arid sterility, whilst social practices are condemned to subjugation by a legal regime indifferent to the ebb and flow of real-life values and changing social conditions and orientations. In other words, for Schmitt, liberal-positivist ideologies are detrimental insofar as they fail to take account of how any field of legal doctrine necessarily draws upon the pre-existing and independently constituted ‘concrete order’ of an area of social practice, such as family life or democratic political culture, as this is being concretely lived and experienced by participants (Schmitt 2004a: 50–1). Liberal ideology

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endorses a form of Kelsenian legal positivism that is structurally incapable of incorporating the lessons available from a sociologically and historically informed and substantive model of sovereignty understood as an expression of ‘political will’. However, articulations of political will are precisely what underpins the possibility and continues to pervade and determine the operations of a modern legal system, including ongoing law reform agenda, and this pervasive dimension is only most obviously present within exceptional contexts, such as a wartime state of emergency (Schmitt 2005a: 6, 13). For example, Schmitt expressly contrasts his own realist interpretation of constitutions as historically specific embodiments of the collective political values and will of a specific people and concrete type of state formation, which helps cement a substantive ‘condition of political unity’ and a concretely existing and distinctive type of order and orientation of a specific state, with the emptiness and formalism of a purely normativist interpretation. That is, a constitution reinterpreted as a ‘closed system of norms’ that allegedly comprises the sole and absolute legal significance of the state itself (Schmitt 2008a: 59). Schmitt thereby aims to highlight the abstract character of any form of legal analysis dominated by the ideological agenda of liberal normativism, its lack of sociological realism concerning, for example, how specific relations of power, command and rule involving concrete forms of supremacy and subordination permeate both public law and concrete forms of the state’s existence, or state forms, such as aristocracy, republicanism and democracy (Schmitt 2008a: 60). It is patently absurd to seek to analyse constitutions, such as those of America, Germany, Ireland and France and post-communist Eastern European states, in purely normativist terms, that is, divorced from any consideration of the successful political revolutions that first made their distinctive value-orientations possible in the first place. The normativism promoted by liberal ideologies cannot but generate a purely formal conception of sovereignty lacking empirical realism, as if laws create, modify and apply themselves independently of interest-driven social actors and institutional processes. As Schmitt notes, ‘It is also possible to designate the constitution as “sovereign” in this [Kelsenian-normativist] sense, although that is in itself an unclear form of expression. For only something existing in concrete terms can properly be sovereign. A merely valid norm cannot be sovereign’ (Schmitt 2008a: 63). The liberal idea that it is legal norms, conceived of in liberal-positivist terms, that ‘rules’ over society, found expression in ‘bourgeois liberal’ radicalism in the early and mid-19th-century Europe. This belief tends to designate the provisions of formal written documents as if they constituted a ‘sovereign’ power. This ideological ‘personalification’ has, as its flip side, the equally remarkable ‘depersonalisation’ of really existing and empirically ascertainable forms of personalised rule, command and asymmetrical

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power, including articulations of citizens’ democratic self-governance. This classic instance of ideological depoliticisation evades the reciprocal mediation of public law and substantive politics (Schmitt 2008a: 63). Another difficulty with liberalism’s ideological conception of law concerns its lack of historical analysis and resulting preference for static modes of legal analysis concerned, for example, with ‘the meaning’ of ownership or property or contractual agreement. In this context, Schmitt complains that ‘the sharp separation of static and dynamic has something artificial and violent about it’ (Schmitt 2008a: 61). Indeed, he contrasts such normativism, whose modes of analysis are typically static, abstracted and non-contextual, with more historically oriented and process-oriented approaches to constitutional law. These recognise the ongoing ‘dynamic’ and forever emerging element of social and political will-formation and collective ‘decision’, including revolutions, as an important source and dynamic of law. That is: [T]he principle of the dynamic emergence of political unity, of the process of constantly renewed formation and emergence of this unity from a fundamental or ultimately effective power and energy. The state is understood not as something existing, resting statically, but as something emerging. As something always arising anew. Political unity must form itself daily out of various opposing interests, opinions, and aspirations. … it must integrate itself. (Schmitt 2008a: 61) Because by means of its law/politics dichotomy liberalism brackets out analysis of ‘the political’ in favour of its own depoliticised and narrow conception of ‘the legal’, it prevents itself from recognising the politics of law, its rootedness in the social formation and ongoing reiteration of collective political will-formation, including the various forms of citizens’ participation within the political process (Schmitt 2008a: 61). And yet the reality remains that successful political and sometimes even social revolutions often lie at the heart of new constitutions and constitutional settlements, such that constitutional history remains one aspect of a wider social history of political transformation. Here, the normative content of such constitutions, its various clauses and articles studied by public lawyers, cannot be understood other than as an articulation of these new and ongoing political realities. Normativism remains fixated upon that which is ‘positive’ or positively ‘given’, and thus fails to recognise the extent to which modern law: [R]emains in the sphere of (emerging) being and of the existing. The constitution, therefore, does not yet become … a mere rule or norm, under which one subsumes everything. The constitution is the active principle of a dynamic process of effective energies, an element of the

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becoming, though not actually a regulated procedure of ‘command’ prescriptions and attributions. (Schmitt 2008a: 61) Schmitt argues that liberal ideology’s narrowly positivist and formalistic conception of law, reliant upon questionable dichotomies and one-sided conceptual prioritisations, leads to other difficulties. In particular, liberalpositivism remains overly concerned with internal legal system issues concerning technical origins and respect for meta-rules; it thereby fails to account for the effectiveness of legal norms in practice, the extent to which they are obeyed and achieve their stated or implied goals (Caldwell 1997: 86). Thus, another strand of Schmitt’s critique of liberal ideology is indebted less to jurisprudence than to empirically informed social science studies of law, which today are termed socio-legal studies. His criticism insists that viable forms of legal analysis cannot avoid drawing upon the resources of social science methods and the results of concrete empirical and contextual studies of law in action, which for example treat the constitution as a really existing cluster of institutional practices prevailing at a given time (Schmitt 2008a: 59–60, 62–3). According to Schmitt, properly conceived legal analysis is an interdisciplinary project that draws necessarily on the detailed results of historical, philosophical and social science studies. This, of course, contrasts most markedly with the normativism of liberal ideology, manifested most emphatically within the ‘pure theory’ promoted by Kelsen conceived of as part of a ‘stand-alone’ form of ‘legal science’. Schmitt thus insists on the appropriateness of a distinctly contextual form of legal analysis, which gives close attention to the ‘problem of the realisation of law’ (Schmitt 2005a: 21). This broader model of law and legal analysis contrasts markedly with how the narrowly doctrinal approach of liberal normativism focuses on norms ‘as such’, to the strict exclusion of questions concerning the nature and differential political impact of both judicial interpretation and application of legal norms and other considerations of the politics of selective law enforcement/non-enforcement. Liberal ideological conceptions of law move uneasily between two equally extreme and mutually incompatible theoretical positions. On the one hand, they promote their own key and individualistic values, interests and concerns, such as private property, freedom of contract and negative rights against the state as an inalienable ‘natural right’ (or, to use more recent secularised terminology, ‘human right’): one that expresses a law of human reason and principles of reasonableness itself. Legal norms that articulate these against the state, even the latter’s democratically enacted legislative initiatives, are afforded an ultimate, even absolute status as constitutionally protected ‘basic rights’. In other words, such individualistic values, interests and institutions are endorsed as alleged expressions of ‘natural rights’ and

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reason itself. Hence, legal norms articulating and facilitating these are elevated to a status that is ‘prior to and above every political being’ (Schmitt 2008a: 64). On the other hand, this classic natural law position is contradicted by the fact that modern liberal ideologies of law also ground themselves in the normativism of a type of legal positivism. The latter’s starting point is, of course, the celebrated separation between questions of ‘what is’ the law and issues concerning what it ‘ought to be’ in a moral or political sense, which reaches an extreme point in Kelsen’s pure theory of law. Schmitt recognises that a case can, perhaps, be made for grounding legal analysis in either of these two theoretical positions. However, liberalism’s ideological practice of merging this marriage of incompatibles, and shifting in an unprincipled and opportunistic way between them, cannot but generate all manner of contradictions. Whilst properly enacted legislation providing for the complete nationalisation of private property would be rejected by one strand of liberal ideology as an attack on universal and absolute human rights whose validity is independent of their recognition by the ‘positive-legal reality’ of domestic state law, the other positivist element would surely have to recognise it as valid law. That is, as an actual and positive provision whose normative content needs to be accepted and analysed purely as such, free from any ‘external’ moral or political objections. This is because for such liberal types of legal positivism only positively enacted laws, whose pedigree is fully compliant with given constitutional protocols, count as valid law at all. The positivist dimension of liberal positivism reduces to the tautology of an uncritical affirmation of what is the case because it currently exists: ‘something is valid when it is valid and because it is valid’ (Schmitt 2008a: 64). Questions of whether property ‘should’, in principle, be privately or publicly owned fall outside the scope of objective legal analysis and jurisprudence respectful of its own limits. In other words, liberalism’s distinctly political project of normativism may perhaps exhibit a certain coherence if considered strictly in its own terms, that is, as a polemical rationalisation of one set of socio-economic interests against all rival agendas. However, when it is articulated in the manner of Kelsenian legal positivism, for example, as a ground for a supposed non-political or ‘pure’ theory of law, blatant contradictions and ‘confusions’ inevitably arise whose ramifications in practice can be disguised but not eliminated. In turn, this difficulty emphasises the need for such ‘pure theories’ to be reinterpreted as primarily ideological in nature, as disguised jurisprudential rationalisations for the domination of society by a specific cluster of interests, concerns and values. The status quo has to be accepted as valid because it exists as the status quo, unless and until it exhibits elements that are incompatible with core liberal values. Where this arises, ‘higher’ natural/human rights suddenly become relevant standards for constitutional legitimacy of even duly enacted democratic legislation. For all its self-

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promoting appeals to reason and science, Schmitt suggests that liberal ideologies culminate in a shabby form of political opportunism incompatible with any principled position. If a legal and constitutional system embodying liberal values is to be justified it has to be on grounds that the substance of its core principles are coherent, self-consistent and rationally compelling, and ‘valid in themselves by virtue of their reason and justice without regard for their “positive” validity’ (Schmitt 2008a: 64–5). Schmitt flatly denies that, as an empirical matter, a closed constitutional system of ‘pure norms’ actually exists. He thereby charges liberal ideologists, such as Kelsen, with promoting an essentially arbitrary and unrealistic account of law as if it somehow exhibited a ‘systematic unity and order’ (Schmitt 2008a: 65).

Exaggerating the determinacy of legal doctrine Another series of difficulties created by the application of liberal ideology concerns its exaggeration of the ‘determinacy’ of pre-defined legal norms. To vindicate its own assumptions and overall belief system, liberal ideology thus promotes the idea that, within a modern liberal regime characterised by the rule of law and an independent judiciary, legal rules and principles are generally ‘determinate’ that is, definable, stable and – at their core – largely fixed. To counter the threat of indeterminacy, and hence doctrinal ‘uncertainty’, liberal ideology insists each and every example of law application, no matter the degree of factual variation and uniqueness in the circumstances, both can and should – as a matter of reason and logic – be subsumed as an instance of a general ‘type’ of case for which standardised rules apply: ‘Every law is reduced to the norm, which is separated from the circumstances; the rest is “mere fact” and the opportunity for factual “confirmation of the law”’ (Schmitt 2004a: 62). In other words, to remain rational and scientific, legal analysis should only address the facts of any individual law report insofar as the reason for the decision (ratio decidendi) gives effect to a more general doctrinal rule. Students of law are thus supposed to ‘learn the case-law’ only to illustrate formalistic models of legal doctrine, not to examine the empirical vagaries of judicial practice in this area. For Schmitt, this formalistic reinterpretation of the legal process leads to an essentially unrealistic account of law in practice, of how law is actually lived and experienced by those involved in, and affected by, its institutional practices. Kelsen, a militant proponent of liberal positivism, takes such normativism to its extreme when he claims that legal science is not concerned with relations of substantive power, real effective governance and extra-judicial authority. This is because these phenomena belong to the extra-normative and excluded causal-empirical realm of ‘what is’ (Kelsen 1911: 226–7, 396–7). Kelsen, by contrast, rejected the ‘command’ or ‘will-based’ positivism of Bentham that has been more influential for

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Anglo-American legal positivists, such as Hart, as violating the key law/ politics, is/ought, empirical/normative science oppositions. For this ideology, it is law that ‘rules’, and, from a strictly juristic perspective, ‘the state is a purely normative phenomenon. The state is: ‘an ideal system, a system of coercive norms, in whose validity its specific existence rests’ (Kelsen, Staatsbegriff, quoted and translated in Caldwell 1997: 94). This ideological conception of the ‘determinacy’ of legal doctrines positively reinforces liberalism’s wider model of the rule of law. This is because state officials, including judges, are – it is claimed – positively required to adhere to pre-defined, precise and clear standards, something which allows little scope for legitimate forms of discretion. For those who accept this ideological vision, it follows that a legal decision is ‘correct’ insofar as any other ‘reasonable’ decision-maker, faithfully applying the objectively ‘valid’ legal tests to the properly identified ‘material facts’ of the case, would have been compelled to arrive at the same conclusion. In other words, proper legal analysis must exemplify a type of judgement grounded in a ‘correct’ (that is conventional) identification of the ‘relevant’ law, combined with an equally ‘correct’ interpretation of its determinate meaning and scope of application. Liberalism thus portrays the reality of the legal system through the lens of its ideals of doctrinal ‘determinacy’; it thereby disregards the contrary insight of qualitative social scientific approaches to the legal process that routinely demonstrate the limits of the idea that the formal or paper rules concretely and fully determine legal outcomes. According to Schmitt, an additional negative consequence stemming from how liberalism exaggerates doctrinal determinacy concerns the selfserving disguise of ideological manipulations of the language of legal devices, such as international treaties and conventions. Imperial states have an interest in exploiting linguistic indeterminacy of legal language, whilst at the same time denying this by claiming their practices are strictly following the letter of the law. For Schmitt, the United States articulates one aspect of its imperial power over international relations and law through its regular capacity to shape how semantic-interpretative issues are determined, and have these accepted as those of the ‘international community’ itself (Schmitt 1932/1988: 199). Hence, forcing the ‘international community’ as articulated by the League of Nations, to accept the US Monroe Doctrine as a legitimate expression of international law, whilst reserving the interpretation of its main – yet highly ambiguous and open-ended – key terms to the United States alone, does not itself appear imperialistic. Instead, such semanticrhetorical processes, rich in ideological potential and implications, are typically portrayed as a civilisational advance, a progressive measure of necessary reform and modernisation. Yet, Schmitt suggests that such disguised types of imperialistic practices are all the more effective for operating behind this semantic veil. Schmitt insists that the exploitation of,

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for example, the 1823 Monroe Doctrine’s linguistic indeterminacy, its ‘remarkable elasticity and vagueness, this leaving open all possibilities, including also the alternative of law and politics, is … typical of every true and great imperialism’ (Schmitt 1932/1988: 163; Ulmen 2003: 17 n 20). This is a point that one of Schmitt’s commentators and – in part – leading exponents within contemporary international law scholarship, Martti Koskenniemi, has further developed. He characterises linguistic manipulation as a vital technique of US hegemonic control and possible contestation, as a concrete example of the friend/enemy distinction that Schmitt claims is characteristic of ‘the political’: By hegemonic contestation I mean the process by which international actors routinely challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents. In law, political struggle is waged on what legal words such as ‘aggression’, ‘selfdetermination’, ‘self-defence’, ‘terrorist’ or ‘jus cogens’ mean, whose policy will they include, whose will they oppose? To think of this struggle as hegemonic is to understand that the objective of the contestants is to make their partial view of that meaning appear as the total view, their preference seems like the universal preference. There are many examples of this contestation. The process that led into the definition of aggression by the UN General Assembly in 1974 was about drawing a line between acceptable and unacceptable forms of coercion in a situation where different solutions put States in unequal positions. Every suggested definition seemed either underinclusive or overinclusive from some participant perspective, that is, covering cases one did not wish to cover (i.e. the behaviour of oneself or one’s ally) or not covering cases that should have been covered (i.e. forms of behaviour of foreseeable enemies). Everyone participated in the nearly 20-year process with two (understandable) objectives: to encompass as much as possible of the behaviour of one’s enemies while making sure that nothing would limit the freedom of action of one’s own country. (Koskenniemi 2005: 119) Schmitt suggests that scholars of international law need to connect ‘exception’/option clauses within such devices to the underlying geopolitical reality of power politics (including the protection from nationalisation of US investments) that are often strategically masked by the high-minded general terms, such as ‘non-intervention’, ‘selfdetermination’ and the ‘equality of all states’. In this respect, the ideological manipulation of linguistic indeterminacies specifically in relation to the question of ‘who decides?’ upon whether or not specific reservation clauses authorising military intervention apply, remains a perennial question of

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specific relevance to past and present forms of imperial power (Scheuerman 1999: 144–5). As Rasch notes: Thus power always comes into play when treaties, conventions, and even constitutions are formulated. In the face, then, not only of the inevitability but also the deliberate manipulation of indeterminacy, the question ‘Who decides?’ is the one that must always be asked … In the cases Schmitt discusses, the ‘exception’ prompts the question. Thus in part based on the postwar German experience, Schmitt never tired of asking the ‘Who’ question: Who decides what peace is, what disarmament, what intervention, what public order and security are? We might ask the same: Who decides on the ‘good governance’ of socalled Third World states, the states themselves or American- and European-controlled international agencies like the World Bank and the International Monetary Fund? Who decides which states are ‘rogue’ states, which brands of violence are ‘terrorist,’ the occupied populations and the movements that support them or their occupiers? Who decides which states threaten peace, the ones who impose the terms under which ‘peace’ can be enjoyed, or the ones who endure those terms? Who decides on the legal conduct of wars, the ones who lose them or the ones who win them? And who decides when the occupation of territory is necessary to preserve order, even when the occupation itself is what shatters order? (Rasch 2008: 72–3) Schmitt further argues that the language of the original Monroe Doctrine of 1823 lent itself to strategic ideological manipulation during subsequent decades. Assertions of regional hegemony were expressed as ‘defence’ and the fulfilment of both ‘democracy’ and ‘civilised’ modes of governance. America’s frequent turn-of-the-century military interventions to preserve and expand its economic penetration in the Americas were typically portrayed as mere ‘peace-keeping operations’; whilst the transformation of South American states into protectorates was stated to constitute a form of liberation and expansion of freedom. Schmitt’s critical analysis of the immediate post-World War I occupation of the Rhineland can be taken as a case study of some of the general points made in this section. He emphasises how the indeterminate language of the Versailles Treaty allowed the duration of Allied military occupation to be extended in an open-ended manner according to criteria specified, interpreted and applied by the occupying powers alone. The deliberate creation of linguistic vagueness within international treaty law, and hence indeterminacy of legal meaning, clearly fosters broad discretion. In turn, this opens up multiple opportunities for an imperial power to exercise a highly selective form of interpretation and application

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of law, with wide scope for self-exemption from supposedly universal obligations. Indeed, for imperialism, that is part of the specifically geopolitical rationale for such widely defined clauses because it is precisely superpowers that are best able to exploit them through selective interpretation and application (Scheuerman 1999: 145). For instance, under the broadly drawn terms of the Versailles Treaty, which legally bound Germany even though it was not a negotiating party, the Allied powers alone were (self)-authorised to answer the question of whether Germany’s reparation payments were ‘sufficient’ or paid on time, or alternatively whether they could be deemed to have violated aspects of this treaty, or whether Germany posed a ‘military threat’ to other states. The linguistic terms were sufficiently widely drawn and open-ended as to potentially allow military intervention because a German military band had played hymns on a Sunday (Rasch 2008: 69). As Scheuerman’s commentary notes, despite the endorsement of the Versailles Treaty by the movement of Wilsonian liberalism: [I]n reality the Allies rely on vague legal clauses, in order to exercise extensive forms of discretionary power in Germany. The Versailles Treaty left the extent of reparations undefined; sanctions were so broadly defined that the Allies have been able to justify virtually any action by reference to them; the investigative powers granted the Allies (in order to prevent German rearmament) allow for unlimited invasion of privacy; the powers of the occupying forces are so broadly defined that arbitrary rule has now become the status quo in the occupied zone. (Scheuerman 1999: 145) Rasch’s commentary also recognises how a Schmittian approach makes a connection between the manipulable quality of indeterminate linguistic terms within international law treaties and liberal cosmopolitan ideologies on the one hand, and imperial power politics on the other. He suggests that such manipulation continues to be deployed in contemporary contexts of US intervention: What enables the latitude of those with power to justify military intervention and economic exploitation in unobjectionable accordance with the rule of law, Schmitt contended, is a deliberately manipulated indeterminacy of language, an undefined generality of concepts that can always be filled with specific content to suit given power-political needs. Those who are authorized to define terms are then granted by those terms the power to execute military and political actions under the protection of legality. It is always Britain, not Egypt, always the United States, not Haiti, always an Allied commission or France, not the

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residents of the Rhineland or the German state that decides when order needs to be re-established or whose interests need to be protected. As a result, Schmitt maintained, the necessary precision of legal language suffers, and political terms like independence, freedom, selfdetermination, and above all sovereignty give up their accepted meanings. In this way the controlled state’s ‘independence’ and ‘selfdetermination’ and ‘sovereignty’ are affirmed, yet that state’s political authority is subverted and ultimate decision over its affairs taken over by supervisory powers’. (Rasch 2008: 72) Thus, for Schmitt and his contemporary commentators, there clearly is a discourse of imperialism, more precisely, a far-reaching ‘imperialistic discourse’: one that works to exploit indeterminacy but also to preclude the emergence of comparatively inconvenient truths (Schmitt 2005c: 30–1). For present purposes, however, the central point is that, by exaggerating legal determinacy of legal norms, liberal ideologies that exaggerate the legal determinacy are deeply political. In particular, they can effectively disguise and depoliticise the political and geopolitical dimension involved in the interpretation of legal provisions.

Devaluing discretion A further difficulty created but also disguised by liberal ideology concerns its tendency to generate an unrealistic account of how the process of decision-making operates in practice by, for example, grossly underestimating the inevitable role of selectivity, choice and discretionary judgement within all elements of the legal system. We have already seen how liberal ideologies typically reinterpret instances of official and judicial personalised judgement and discretion as ‘arbitrary’ rule, as administrative lawlessness via the ad hoc application of situation-specific decrees that lack the generality of proper statutes. In this context, discretion allegedly can involve the re-writing of doctrinal requirements at the whim of the interpreter. This occurs to rhetorically justify the decision-makers’ subjectively variable definitions of what counts as a ‘fair result’ between the parties. Or it represents a utilitarian policy-based decision focusing upon obtaining a result that achieves the ‘greatest good for the greatest number’ of affected parties. Allegedly, such arbitrary lawlessness violates appropriate constitutional ideals of legality. It is precisely because of liberal ideology’s adherence to a Kelsenian positivist ideal of law as a unified and closed system of self-sufficient norms that its ideologists reinterpret manifestations of official discretion as a perceived ‘threat’ to certainty in both the interpretation and application of law. This is claimed to be a danger that the legal system must guard against

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and strive to counteract. Such manifestations are ideologically interpreted as involving a ‘slipping into the incalculable “subjectivity” of metajuristic considerations’. In turn, this allegedly endangers the legal system’s key values of predictability, stability and calculability (Schmitt 2004a: 6). In turn, the subversion of these values is supposed to wreak havoc upon those areas of society that rely upon the perceived security, enforceability and reliability of legal transactions and devices. If, for example, judges were constitutionally permitted to exercise unbridled discretion, such that each judgement is decided on a case-by-case basis upon its own merits alone through, for instance, attempts to remedy the disorder or injustice prevailing in the factual contexts of application, then this would be a form of ‘palm tree justice’ subversive of both the integrity and regularity of the entire legal system. In turn, such a development would, according to liberal ideology, necessarily have potentially disastrous implications for the reasonable expectation of ‘certainty’. By contrast, Schmitt’s counter-argument is that one of the negative effects of the application of liberal ideologies in this field is a tendency towards dehumanisation, to a disregard of the distinctly human qualities of the legal system. He emphasises the manner in which liberal ideology, for all its humanist rhetoric, actually devalues such qualities. The liberal emphasis on generally applicable rules objectively applied is, perhaps, akin to adherence to a railway timetable or traffic regulated by traffic lights. This emphasis is clearly designed to both preclude and devalue any manifestations of personalised choice and forms of command that exhibit small-scale forms of sovereignty. This is not least because such factors are supposed to introduce an unacceptable degree of subjective variability, and hence indeterminacy, into both the interpretation and operation of law: One can say that here not the personal choices of men, but the impersonal matter-of-factness of the timetable ‘rules’, and that this scheduled regularity is ‘order.’ The well-regulated traffic on the highways of a modern metropolis offers the best picture of this kind of ‘order’. Here, too, the last vestiges of human rule and choice, as represented by the traffic policeman, appear to be replaced by precisely functioning, automatic traffic lights. (Schmitt 2004a: 53)

Interpretative naïveté? In addition, Schmitt accuses liberal ideology of promoting an extreme and self-contradictory form of interpretative naïveté. Since, according to liberal ideology, decision-making power stems from general laws that are themselves impersonal, precisely defined and determinate, the application of law to factual situations should – at least generally and in principle – be relatively

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straightforward (Schmitt 2004b: 23). Certainly it does not essentially require the exercise of discretionary judgements, least of all a type of personal command or sovereign act of administrative, judicial or quasi-judicial lawmaking (Schmitt 2004b: 3–4). The latter suggests that a rule-driven conclusion to a legal issue must have been virtually inevitable providing the decision-maker has correctly identified and complied with the ‘relevant’ law and ‘material’ facts. Therefore, it disregards the element of subjective interpretation and, perhaps, political value-judgement involved in the prior act of identifying what, for all practical purposes, is now being interpreted to count as ‘relevant’ and ‘material’ in this context. By interpreting both facts and doctrine as something ‘given’ and ‘positive’, as opposed to interpretative constructs, liberal ideology generates an overly mechanical and simplistic conception of the legal process. The interpretative naïvety also has negative implications for those seeking to challenge legal decisions, and – more generally – engage in civil disobedience. Thus, according to liberalism’s ideological vision, a party who is dissatisfied with the result of official decision-making has no grounds for complaint when it is claimed that, after the determinate core of the relevant legal measure was objectively defined and understood, the decisionmaker was compelled, by the strict logic of the law itself, to arrive at that unwelcome decision. It is the rules hard-wired into the legal system itself that concretely determine concrete decisions; and such rules cannot, of course, be the object of any legally valid challenge. Within liberal ideology’s model of a legislative state governed by the rule of law doctrine, the outlines of which Hobbes’ Leviathan foreshadowed, there is an absolute duty on citizens to obey the law and accept without resistance all the actions of officials that are specifically legally authorised. Because the modern state has, in keeping with the imperatives of legal positivism, reduced whatever counts as ‘law’ to positive and state-made commands, citizens can only have those rights against the state that the latter’s public law provides. For Schmitt, the legislative state ‘functions as an irresistible instrument of quietude, security, and order and has all objective and subjective rights on its side because, as the sole and highest law-giver it makes all the laws …’. Hence, the idea of a ‘right’ to civil disobedience against lawful state actions or policies, whether understood as a subjective or objective right, becomes ‘factually and legally nonsensical and absurd’ (Schmitt 1996b: 46). The idea of such a right to resistance lacks a recognised ‘point of departure’. As far as the positivism of the legislative state system is concerned, this can only be utopian, a demand for a politically-legally recognised right of rebellion, civil war and even a right to destroy the state: one which contradicts the functionalist rationale of the state itself, and the latter’s legal and constitutional systems (Schmitt 1996b: 46–7). This elimination of civil disobedience represented a major transformation concerning the pre-modern, feudal position within Europe where,

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according to Schmitt’s study of Hobbes, such a theologically sanctioned right against ‘an unlawful ruler’ was ‘self understood’ (Schmitt 1996b: 46). However, there is no requirement to accept any other forms of subordination, orders or would-be acts of governance that lack such normative authorisation, even when these are issued in the name of a head of state or a religious leader. In short, Schmitt claims that another negative facet of liberal ideology is that, for all its emphasis upon ‘individual rights’, its interpretation of the rule of law is essentially regressive on questions of legitimate civil disobedience. A related point concerning a negative result of interpretative naïveté is that where a specific judicial or quasi-judicial decision ‘fails’ liberalism’s ideological tests of legality, the assumption is that this stems from a constitutionally problematic intrusion of an illicit and arbitrary form of judicial creativity or discretion. Hence, judges who choose to allow their decisions to be shaped by extra-legal factors are deemed to be refusing to deal with the ‘relevant law’ and the facts and circumstances of the case as these ‘really are’, that is, as phenomena that are positive and ‘given’. Instead, such wayward judges are accused of reinterpreting both the meaning of the law and the legal implications of the material facts of the case in question to accommodate their own merely subjective sense of what they believe these morally or politically ‘ought to be’. They are importing into legal analysis and decision-making, assumed to be as described by legal positivism, the Trojan horse of natural law standards. Defined prejudicially as an intrusion of unwarranted subjectivity, including all manner of moral, religious and political value-judgements, any creativity within the judicial role is reinterpreted as inappropriate to objective legal analysis, as either moralistic or religious analysis would be for those responsible for the task of scientifically ascertaining the causes of a disease, or some other natural phenomena.

Misinterpreting the judicial role? Another related problem created by the successful application of liberal ideologies, including the interpretative naïveté just discussed, concerns the liberal-positivist definition of the judicial role in particular and the legal decision-makers function more generally. This role is defined as a form of meta-rule-governed rule application: one that is explicable, by Kelsen for example, in terms of a precise ‘legal science’ akin to mathematics. In the same way that natural science studies laws of nature, not scientists’ interpretative activities, the normativism of liberal ideologies promotes the idea that legal analysis and research is focused solely upon the contents of legal doctrine, not lawyers’ activity of making sense and applying it in practice. The resulting ideological elevation of normative analysis at the expense of empirical socio-legal studies of concrete instances of the nature and

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implications of instances of law application, is highly significant. It narrows the focus of judicial analysis to questions concerning the meaning and scope of the legal norms. In turn, this results in the expectation that judges will interpret law in an extremely formalistic manner. That is, as abstract and general rules of legal doctrine supposedly existing independently of any conceivable case of their de facto application during a specific trial. As already discussed, these norms allegedly occupy an elevated realm allowing them to ‘hover over’, as it were, each and every conceivable factual context of their judicial application. This, in turn, is supposed to preclude any need for their modification through the creative exercise of judicial revision in the light of the practical policy or moral implications and ramifications of their deployment. Hence, in the ‘normal case’ at least, there should be no question of judges having to exercise personal judgement and choice concerning the identification or adaptation of the relevant doctrinal norms. To ensure that the application of law remains ‘on track’, that is determined only by ‘the obvious, indisputable contents of the norm itself’, judges are expected to neutralise all manner of supposed extra-juristic factors, any or all of which might otherwise be decisive (Schmitt 2004a: 65). These include any questioning of the ideological assumptions regarding ‘normality’ and ‘reasonableness’ behind specific legislative measures, or the wider policy goals pursued by such provisions. Amongst other, equally prohibited factors are all questions relating to the moral, economic and political principles underpinning specific legal doctrines, such as freedom of contract, as well as evaluations of the meaning and value of the object of legal regulation (Schmitt 2004a: 65, 94). The normativism of liberal ideologies thus promotes an unduly conservative declaratory model of the judicial role. This is because legal norms are presumed to exist in an objective, already-defined state, prior to every instance of their potential application. Hence, such determinate norms are already ‘on hand’ for judges as objectively given rules, tests and requirements simply waiting to be applied in a more or less straightforward, even mechanical, fashion. To bolster its interpretation of the judicial role, liberal ideology asserts its own ideals of the rule of law, together with constitutionality more generally. This suggests a process of social regulation through general laws that have been enacted via parliamentary due process, and following optimal consultation with representatives of civil society. In turn, this reinforces the requirement for judges to apply laws in an objective and neutral manner, such that their decisions conform to the dictates of normativism, that is, are based wholly upon, and explicable exclusively by reference to, the clearly defined contents of legal norms. On this basis, the ideology of ‘constitutional liberalism’ redirects our focus upon the idea that judicial decision-making involved in the application of legal measures to specific factual situations is valid, and thus safe from successful appeal, if, but only if, specific normative requirements are met.

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Here, the judge’s resulting decision must be based exclusively on the ‘legally correct’ identification of the objective meaning and scope of the law itself (interpreted as doctrine alone not in terms of the political purposefulness of policy considerations). Because the question of ‘who decides’ is deemed to be essentially irrelevant, any reasonably competent and doctrinally-informed judge following the appropriate legal methods and meta-rules should be able to apply given norms and ‘legal tests’ to arrive at an identical conclusion. It assumes the systematic bracketing out of judicial subjectivity: ‘a decision in the legal sense, must be derived entirely from the content of a norm’ (Schmitt 2004a: 6). In other words, when confronted with a clear and unambiguous legal requirement or ‘test’, a judge’s decision in favour of party A is said to be justified if, but only if, the facts of the dispute credibly presented by A can be clearly shown to have fully met these given legal requirements. Hence, liberal ideology insists that judicial and other forms of personalised judgement, law-making command and selective interpretation are, and should be, minimised. This needs to occur by judges recognising and respecting overarching standards of legality, including the impact of metarules of, for example, binding precedent, rules of statutory interpretation, and constitutional doctrines of the separation of powers. In other words, the application of rules to the facts of individual cases is presumed to be explicable partly in terms of the rules themselves, and partly by reference to the idea that judicial applications of norms is itself a meta-rule-governed process. For liberals, it is the presumed determinacy of legal doctrine that makes it possible for judges to deploy a distinct cluster of legal methods to identify a core of general, stable and intelligible meaning within specific areas of legal regulation. In turn, once identified, an understanding of the objective meaning and scope of the legal rules in question is supposed to make it generally possible, in principle at least, for judges to clearly ascertain the proverbial ‘single correct answer’ to any actual or potential legal problem of rule application. This ‘answer’ can be ascertained irrespective of their subjectivity and value-judgements concerning the fairness and justice of the outcome for the parties to the case. Hence, supposedly ‘invalid’ judicial interpretations can always be attributed to a failure of judges to apply the technically correct legal methods, with ‘valid’ ones usefully ascribed to the inbuilt wisdom of the norms themselves. Against this ideological position, Schmitt insists that any realistic view of the legal process must recognise that the identity and subjectivity of the judge does inescapably yield divergent interpretations of ‘the same’ fundamental legal principles. Indeed, and despite its extra-normative nature, the impact of ‘who decides’ spills remorselessly into every juristic arena, even from the recognition of the institutional role of the appointment and promotion of judges: ‘Not as a normativistic but rather an order concept’, indicative of an ‘order system’ of officials and authorities. ‘That this very concrete person is the duly appointed judge, results not from rules

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and norms, but from a concrete judicial organisation and concrete judicial organisation and nominations’ (Schmitt 2004a: 51). To become intellectually credible and empirically adequate, legal analysis must, therefore, be broadened to include the question of not only ‘who decides’ but also who – through selective institutional practices of judicial appointment and promotion – determines who decides. A realistic form of legal studies must, therefore, break out of the strait jacket of normativism by addressing ideological aspects of the appointment, promotion and sanctioning of judges according to various sub-cultural expectations of ‘appropriateness’, which are themselves irrelevant to formal norms. Schmitt argues that, for liberals, both the positive and ‘negative’ forms of judicial creativity (deciding not to follow a new ‘precedent’ precisely because of its departure from earlier ones) that emerge from the selective interpretation of law and fact, represent a ‘deviation’ from governing normative doctrinal and constitutional expectations. That is, the expectation that legal decision-makers are neither the creative source, nor an amending institution of the law. Instead, they are merely this institution’s dutiful mouthpieces who merely ‘declare’ and apply the ‘given law’ to the preexisting facts of the case. Liberal ideologies thereby place judges and other decision-makers in a difficult, sometimes contradictory position. Instances of alleged judicial ‘deviation’ from the prevailing key norm of ‘legitimate judicial practice’ is condemned as unnecessarily introducing elements of uncertainty, contingency and unpredictability into the meaning, scope and practical implications of private rights, including contractual, property and familial rights. In turn, manifestations of judicial choice between competing interpretations of the meaning and implication of both law and fact, which in fact are institutionalised in an adversarial legal system, allegedly destabilise not only the legal system that judges are duty-bound to uphold but also the smooth workings of civil society. Schmitt maintains that this ideological contention concerning judicial objectivity is both naïve and highly political, particularly insofar as it further advances the cause of depoliticisation. A judge is inevitably imbued with a multiplicity of external life experiences that are inseparable from the decision-making process executed within the precincts of the court. Social, religious, political and psychological orientations create a unique personality inextricably bound to both a concrete mode of existence and a distinct way of belonging to a legal culture. Such factors inevitably influence a judge’s interpretation of the significance of facts, principles of law and the relationship between the former and appropriate forms of the latter (Schmitt 2004a: 64). For Schmitt, these sources of exercises of creative judicial interpretation must also be recognised as independent sources of law itself. Hence, he rejects as unrealistic one of the results of applying liberal ideology, namely, the redefinition of instances of judicial and official

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discretion in terms that make them appear as little more than illegitimate exercises of extra-normative (and hence extra-legal), authority. Indeed, he questions the underlying assumptions and dichotomies on whose basis liberal ideologies reinterpret examples of judicial creativity and distinctly and uniquely personal judgement as the constitutionally illicit intrusion and eruption of political and/or moral and/or religious values into what supposedly should – in principle – be a strictly non-political legal process (Schmitt 2004a: 64). Against the normativist straitjacket imposed on judicial practice by Kelsenian positivism, Schmitt argued that the question of judges arriving at ‘the right’ legal decision is not essentially a matter of correctly identifying and applying the requirements of a given legal norm. Instead, it is best seen as an ongoing practical task in which clashes of interpretative standpoint and ‘particular points of view’ are essential ingredients. Schmitt makes the realistic point that practitioners, as well as students and scholars of law, regularly encounter judicial decisions that, for perfectly sound legal reasons, are ‘apart from and at times against the law [understood in positivist terms]; yet are defined as correct; yet they can hardly be said to be “in accordance with the sources” – whether or not covered by precedents of the highest courts and their constant practice’ (Schmitt 1912: 77–8).14 Instead of accepting the liberal normativist claim that judicial decisions are only correct if they are either directly authorised by, or could be objectively derived by, logical analytical means from the implications of a system of prior legal norms, Schmitt focused upon ongoing patterns of judicial culture. A judicial decision is legally correct if it conforms with the shared values and frame of reference of judicial cultural tradition to the point where members of this tradition would find it broadly acceptable even where it could not otherwise be justified in positivist terms: ‘Judicial decision is correct today if it may be assumed that another judge would have decided in the same way. Here, “another judge” refers to the empirical type of the modern, legally learned lawyer’ (Schmitt 1912: 71–2). In other words, a judge who was the first to decide that a new general legal category and associated remedies existed, such as liability for negligence, cannot be accused of making an invalid legal decision simply because the latter went beyond a normativist analysis of prior legal norms. The proviso, according to Schmitt, is that all such acts of creative transcendence must, in terms of both their form and content, be

14 All subsequent references to Schmitt’s untranslated 1912 work are based – in an unmodified form – on partial translations, citations and quotations from William Rasch’s excellent essay: Judgment: The Emergence of Legal Norms Cultural Critique, 57, Spring 2004 93–103, which I gratefully acknowledge.

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recognisable as potentially valid by the currently prevailing culture of fellow judges. A judicial culture may approve of relatively conservative supplementations of established legal principles and their creative application to new contexts, providing these are carried out cautiously and with proper respect for prior third party interests. In this context, when a judge makes such a decision it cannot be immediately rejected as invalid even though it violates Kelsenian protocols. Schmitt looked for ‘an interest aimed at the reality of legal practice’ (Schmitt 1912: vi). He claimed that his proposed criteria, which introduces social scientific questions regarding the study of professional cultures which Kelsen sought to exclude, is far more realistic that liberalism’s ideological position. It succeeds in maintaining the idea that statutes cannot, for example, simply be disregarded because the judge who is obliged to apply it in the case in hand subjectively disapproves of it because it offends his or her strongly felt sense of ‘justice’: Here it is expressly denied that the individual judge, regardless of his convictions, can make a correct decision contrary to law. Nor can the strongest sense of justice, as such, displace the statute as the standard of correctness. What is decisive is always the entire judicial practice that grounds the foreseeability and predictability of decisions, and thus legal specificity … the statute’s authority must be maintained’ (Schmitt 1912: 113–14, 77–8). And yet Schmittian realism also recognises that the norms embodied in statutes remain generally subject to ongoing and potentially open-ended judicial reinterpretations, with the results themselves reiterated through other later reinterpretations, and so on ad infinitum. In other words, Schmitt develops a descriptive model of legal validity that is essentially interpretative and, in one sense, culturally relativist. A decision is correct if the mainstream of the current ‘interpretative community’ within whose field the issue falls, for example the judiciary, would, in all likelihood, recognise it as valid for all practical purposes. It takes note of the empirical reality that judges are frequently unable to deduce the proverbial ‘single correct meaning’ from the language of a statute that straightforwardly and without question covers the situation in question, and therefore have to disregard this as a viable criteria for ‘prescriptive law’. Judges, on occasions, simply have no choice but to make ‘stop gap’ decisions because of the absence of ‘clear positive norms’, and instead rely upon ‘ambiguous, extra-positive ones’ (Schmitt 1912: 114). The implication drawn by a Schmittian approach is that the study of the interpretative aspects of law in action has to address norms as always in the process of having their meanings, purpose and scope interpreted and reinterpreted variously and otherwise. Any realist type of jurisprudence

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must address and take seriously this culturally and institutionally regulated practice. In addition, a Schmittian approach takes into account the empirical fact that judges often make, and perhaps have to make, legally valid decisions which offend the literal language of an applicable statute. This is because they give a statutory measure a meaning and scope that is either narrower or more extensive than that which its express wording appears to support. Yet, for good legal reasons and in many contexts, a decision of this kind will nevertheless become widely accepted as valid amongst other judges and lawyers. Its validity for all practical-institutional purposes will be recognised not only in terms of the immediate facts of the case in question but more generally as a widely applicable precedent. This can occur when policy or moral factors outside the impossibly narrow realm of strictly normative analysis make their presence felt. Amongst these factors are included the urgent need for judges to produce decisions that will be widely recognised as credible and appropriate for, as well as equitable to, the immediate parties to the case. The all too predictable positivist response is that to recognise such scope of and occasional necessity for the exercise of judicial discretion and associated issues regarding subjectivity, interpretative relativity and limited legal determinacy is to undermine ‘legal certainty’, misses the key point.15 Schmitt’s reference to how a typical ‘other judge’ would probably decide the points of law arising from the case in hand is a formulae designed to optimise existing possibilities for legal certainty by ruling out unpredictable, surprising or idiosyncratic forms of decision-making (Schmitt 1912: 79). It follows that legal analysis and legal practice must recognise that it starts with the meaning and scope of the judicially interpreted and reinterpreted norm, not the norm per se, and must accept that it is the former, not the latter, which provides the applicable benchmark standards for judicious decision-making. In other words, Schmitt’s emphasis on the culture of the institutionally recognised interpreters of law taken as a cultural group being the pre-eminent source of legal validity, rather than an exclusive focus upon the elucidation of the content of legal norms per se, provides an approach more consistent with the lived experiences of legal practitioners. Indeed, he insists that the reference to ‘another judge’ is strictly empirical not ideal or normative, and that therefore the term ‘typical’ or ‘average’ judge could be substituted for it: ‘the “other judge” is the normal, legally cultivated judge, where the word “normal” is used in a quantitative-average sense, not describing an ideal type, not qualitative and teleological’ (Schmitt 1912: 79).

15  Cf von Hayek, The Road to Serfdom (London: Routledge, 1944).

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Schmitt insists that, in comparison to liberal ideologies of normativism, his approach strikes a credible balance between equally one-sided objectivism on the one hand, which simply ignores the ‘subjective’ (more precisely cultural) relativities and contingencies introduced by judicial application, and a decisionistic subjectivism on the other. The latter overemphasises the scope for free choice, unrestricted decisionism and personal belief by disregarding the influence and binding force of cultural tradition upon individual judges (Schmitt 1912: 78–9; Schmitt 2005a: 2–4). For Schmitt, a judicial decision is correct if a practitioner experienced in, and knowledgeable about, the prevailing orientation of the relevant judicial culture could have reasonably foreseen and predicted the outcome as at least within the range of likely interpretative possibilities, as being ‘on the cards’ as it were (Schmitt 1912: 79).

The politics of ideological depoliticisation A further cluster of difficulties, contradictions and confusions stems from the manner in which liberal ideologies practice their distinctive form of depoliticisation. Schmitt’s criticisms of such ideologies and their negative implications does not mean that he rejects their significance as a powerful social influence and dominating orientation. On the contrary, he recognises as a simple historical fact the success of liberal ideology as ‘a historical force’, in displacing earlier expressly political categories within European scholarship, economics, jurisprudence and elsewhere, and replacing these across the board with depoliticising counterparts: ‘liberalism has changed all political conceptions in a peculiar and systematic fashion’ (Schmitt 1996a: 69). Yet, liberal depoliticisations, which ideologically misinterpret legalconstitutional issues as essentially normative and hence non-political, are themselves the outcome of processes of generally successful political struggles against rival ideologies and social movements, including feudalabsolutism and later socialism (Schmitt 1999: 201). This success has not arisen from general recognition of the theoretical validity of liberal ideas and principles that their advocates have applied consistently. Instead, it has stemmed from the making of all manner of ad hoc and highly opportunistic tactical alliances with non-liberal, even illiberal, rival movements, ranging from leftist welfare state agendas to authoritarian political Catholicism. Far from standing above the fray of 19th- and 20th-century political conflict, and thereby retaining apolitical ‘purity’, the bearers of liberal ideology joined these struggles against all rivals, and then emerged triumphant. Instead of proving a weakness, the contradiction of a depoliticising ideology operating in support of a highly successful form of political engagement, the former has served the latter’s cause. The strategically camouflaged politics of depoliticisation/neutralisation has proved more successful than

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the blatantly political ideologies of its rivals, such as socialism, democratic nationalism and fascism, whose struggles are typically conducted more openly (Schmitt 1996a: 69). Schmitt recognises liberalism’s instrumental effectiveness in promoting and consolidating its own political agenda of possessive individualism and the security of private property at the expense of democratic politics at both domestic and international levels (Burchard 2006). However, he also argues that its framework of ideas is structurally incapable of generating specific and positive political ideas. The consistent promotion of the individualistic ideology that underpins the discourse of ‘negative’ rights asserted against the modern state, including a ‘right’ to opt out of wartime military service, is interpreted as ‘freedoms from’ welfare state interventions (Schmitt 2008a: 63). The latter include property and income redistribution, and the regulation of economic markets to meet democratically formulated social policy objectives. Such militant individualism leads to a ‘negation of the political’ whose discourse consists largely of self-justifying terms such as ‘repression’, ‘conquering power’ and the violation of ‘rights’ (Schmitt 1996a: 73). These are – as already noted in terms of liberalism’s hostility to administrative discretion – directed polemically against the institutional practices and politics of the welfare state, and positively towards the expansion and optimisation of a deregulated ‘civil society’ (Schmitt 1996a: 76–7). This ideological commitment, which inverts Hegel’s theory of the state as a progressive force, expresses itself as ‘a political practice of distrust towards all conceivable political forces and forms of state and government’, resulting in ‘a liberal critique of politics … polemical antithesis against state, church or other institutions which restrict individual freedom’. Yet, for Schmitt, liberal ideologies nevertheless fail entirely to generate from their own resources ‘a positive theory of, government and politics’ (Schmitt 1996a: 69–71). Liberals pursue a libertarian politics against the state but have to misrepresent this ideologically as though it is essentially an expression of an ‘ethical’ imperative to secure the ‘conditions for liberty’ (Schmitt 1996a: 71). The contradictory result is that liberalism operates as a libertarian political practice hostile to state regulation (both the field of human rights advocacy and libertarian deregulation of welfare state regulation), but without itself ever being able to adequately conceptualise in positive terms either its own political nature or that of the state as a reallife cluster of existing, if highly diverse, institutional practices. Liberal ideology projects the unity of the state as a system of norms without ever investigating in a socio-legal manner precisely how such presumed ‘unity’ arises as an empirical matter. In particular, Schmitt attacks the ideological tendency of Kelsen’s theory that: [P]ortrays the modern state as a system and unity of legal norms, however without the slightest effort to explain the substantive and

On politics, law and ideology  73

logical principle of this ‘unity’ and of this ‘system’. Kelsen’s state theory also does not fully consider how this unity occurs and according to what necessity it follows that the many positive legal provisions of a state and the various constitutional law norms form one such ‘system’ or a ‘unity’. The political being or becoming of the state unity and order is transformed into that which merely functions, the opposition of being and the normative is constantly mixed up with that of substantial being and legal functioning. (Schmitt 2008a: 63–4) He then suggests that this confusion becomes ‘understandable’ when interpreted not as a purely cognitive or scientific approach to the nature of law, but rather in distinctly ideological terms as ‘the final product of the theory of the bourgeois Rechtstaat (rule of law governed liberal constitutional state), which sought to make a legal order out of the state’ (Schmitt 2008a: 64). In the manner of Kelsen, liberal ideology can, within legal scholarly analysis, negate the significance of substantive politics, including democratic expressions of popular will, through the assertion of ‘pure’ and apolitical legal science (Schmitt 2008a: 63). However, it remains incapable of coming to terms with the presence of that which it negates, or even the essentially political nature of such negation. In place of a political analysis of legalconstitutional issues, liberalism substitutes an ‘always recurring polarity of two heterogeneous spheres, namely ethics and economics, intellect and trade, education and property’ (Schmitt 1996a: 70). Here, ‘the concept of private law serves as a lever and the notion of private property forms the centre of the globe, whose poles – ethics and economics – are only the contrasting emissions from this central point’ (Schmitt 1996a: 70). In addition, every legal-constitutional claim and demand by the individual­ ism of liberal ideologies of law has a second, specifically economic, ‘face’. This is directed polemically against the modern welfare state towards the vindication of free-market liberal economics of free-trade, deregulation and privatisation. For example, the economic policy of ‘free’ competition that allows a price to be set through the interaction of supply and demand within a ‘free’-market, translates into the principles of both freedom of speech and parliamentary law-making through equally ‘free’ discussion and debate within the legislature (Schmitt 1996a: 71). Equally through their deployment of the various dichotomies already discussed, liberal ideologies, according to Schmitt, generally transpose, and thereby ‘dissolve’, essentially political concepts of sovereignty, war, peace, victors, vanquished, governance and the state into a distinctly depoliticised and neutralised terminology centred around the twin poles of ethics and economics. Hence, ‘the state turns into society: on the ethical-intellectual side into an ideological humanitarian conception of humanity, and on the other into an economic-technical system of production and traffic’. Also, ‘a

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politically united people becomes … a culturally interested public’ at the ethical level, and – at the economic level – ‘a mass of consumers’. Such depoliticisations and neutralisations aim ‘at subjugating state and politics’ by dissolving their independent meaning and integrity: ‘partially into the individualistic domain of private law and morality, and partially into economic notions’ (Schmitt 1996a: 72). For Schmitt, part of this overall depoliticising strategy of liberal ideology is to separate zones of social practice into self-contained, autonomous and specialised realms of, for example, ‘pure’ science, ‘pure’ law, ‘pure’ economics etc, each of which supposedly functions in ‘complete isolation’ (Schmitt 1996a: 72). On the basis of such an ‘unquestionable dogma of this liberal age’, it becomes possible for liberal economics to resist the regulation of ‘free’-markets as an inappropriate intrusion of politics into ‘pure’ economics. Such depoliticisation is problematic as it involves: ‘domination of men based on pure economics must appear a terrible deception if, by remaining non-political, it thereby evades political responsibility and visibility’ (Schmitt 1996a: 77). Equally, this ideological tendency allows, for instance, Kelsenian positivism to disqualify scholarly attempts to unfold and analyse political aspects of law, including the reiteration of relations of political domination and subordination through private and commercial law devices. Such efforts are misrepresented as involving a ‘contamination’ of the objective methodology of legal positivist science by the intrusion of considerations that are essentially ‘extrinsic’ to this supposedly autonomous realm of pure law. Schmitt notes the irony of how: ‘With great passion political viewpoints were deprived of every validity and subjugated to the norms and orders of morality, law, and economics’. That such dissolution is essentially ideological in nature involving the strategic misrepresentation of an underlying material reality is clear from the sociological fact that relations of unequal political power continue to structure law in action. This created a marked disconnect between legal-constitutional rhetoric (of rights, the rule of law and freedom of contract etc) and empirical realities: [I]n the concrete reality of the political, no abstract orders or norms but always real human groupings and associations rule over the other human groupings and associations. Politically, the rule of morality, law, and economics always assumes a concrete political meaning. (Schmitt 1996a: 72–3) Hence, there will always be limits to ideological depoliticisation by means of liberalism’s ‘definitions and constructions’, because ‘politics cannot be exterminated’ (Schmitt 1996a: 78). In principle, such depoliticisation of the realms of both economics and law remains permanently vulnerable to a militant re-politicisation of both spheres. Within these realms it always

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remains possible for contestations, even antagonisms, between distinct friend/enemy groupings to arise, which thereby turn political. This can arise whenever scholars properly identify relations of power within the legal sphere, whenever essentially political relations of brute social domination and subordination can no longer be hidden behind the ideological terminology of private law, such as ‘freedom of contract’, ‘reparations’, individual ‘rights’ (Schmitt 1996a: 78; Schmitt 2008a: 62). Nevertheless, for Schmitt, these various interpretive-ideological operations constitute: ‘an entire system of … depoliticised concepts … the incredibly coherent systematics of liberal thought’ (Schmitt 1996a: 71). In short, liberal ideology for Schmitt insists that constitutional governance should consistently exemplify standards of legality, defined as strictly rulegoverned modes of decision-making, in which the decision-maker refrains from allowing anything other than the strictly legal implications of the rules themselves, self-regulated by meta-rules, to determine the outcome. Schmitt criticises how discretionary decision-making, informed by policy standards for example, is condemned as a cavalier disregard for this imperative involving the substitution of prohibited extra-doctrinal (and hence ‘nonlegal’) determinants for those that judges and officials should draw exclusively upon. He rejects each of these different facets of liberal ideology as not only misrepresentations of the empirically ascertainable nature of the legal process, but also as a dogmatically closed system unreceptive to counter-evidence (Schmitt 2008a: 62). Schmitt accuses the essentially uncritical stance of liberal ideology towards the content of legal norms of both constitutional and political irresponsibility. Its combination of abstract formalism, normativism and proceduralism leads to an essentially uncritically neutralising approach to the substantive values of modern law, particularly those elements that perpetuate liberal capitalist values, interests and orientations. The irony here is that this framework is capable of becoming counterproductive. Indeed, it holds out the promise of unrestricted power to extremist movements, who wish to enter parliament ‘legally’ but only to dismantle constitutional legality by means of enacting anti-democratic laws and other measures (Schmitt 2004a). Against such a ‘neutral’ and procedural stance, expressed for instance within classic liberal constitutional doctrines of formal equality, Schmitt argues in favour of the recognition of substantive constitutional values and standards. Their affirmation limits the scope of both the liberal principle of giving every movement an ‘equal chance’, and the recognition as valid law of even the most oppressive type of legislation (Schmitt 2004b). Many commentators have noted the sharp way in which Schmitt challenged and apparently reversed the entire emphasis and structure of those elements of Kelsenian legal theory that exemplify the more problematic aspects of liberal ideologies of law. Certainly, by reversing some

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of the key distinctions and assumptions of Kelsen’s liberal-positivist approach, and showing that a more credible form of legal analysis could arise once we adopt a diametrically opposite approach, Schmitt’s writings appear to supply a more substantive and politically oriented approach. This is something that liberal ideologies of normativism both lacks and needs.16 As one of Schmitt’s most incisive critics, Volker Neumann, rightly notes: In the context of twentieth century German state law theory, Schmitt takes the position opposite to that of state law positivism in general and to Hans Kelsen’s theory of legal norms in particular … Opposition, even hostility to Hans Kelsen is key to all of Schmitt’s works. (Neumann 2002: 282)

The contradictions of liberal-positivism? We have already seen that liberal ideologies promote the idea that valid judicial practice and legal analysis more generally must respect the positivist is/ought and law/politics dichotomies by focusing exclusively, and in a purely descriptive-analytical manner, upon normative questions concerning the meaning and scope of legal categories/norms. The opening sentence in Schmitt’s Concept of the Political both rejects and reverses Kelsen’s key thesis, based on a radical divorce of law and politics, that the concept of the state presupposes a positivist concept of ‘pure’, that is, politically neutral, law. Hence, if viewed juristically, one must identify the state with the entirety of relevant public law norms. Schmitt’s concise retort is: ‘The concept of the state presupposes the concept of the political’ (Schmitt 1996a: 19). In Political Theology, he had previously made a similarly dramatic opening statement that also rejects and inverts Kelsen’s liberal position concerning the necessity of excluding questions of personal command, discretion and judicial creativity, this time in relation to sovereignty: ‘Sovereign is he who decides the exception’ (Schmitt 2005a: 3). Both books thereby make it clear that their very starting points challenge and invert Kelsenian positivism. That is, the priority of decisionist, and thereby expressly political analysis of law, over that depoliticising type of normativism associated with liberal ideology. Decisionism is polemically opposed to Kelsenian normativism.

16 For a largely defensive and highly partisan response to this challenge, expressive of a friend/enemy stance, see the collection of essays edited by Dan Diner and Michael Stolleis entitled Hans Kelsen and Carl Schmitt: A Juxtaposition (Tel Aviv: University of Tel Aviv, 1999).

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For Schmitt, Kelsenian positivism served almost as an exemplary case study of the more general faults and contradictions of liberal ideological orientations towards legal and constitutional issues. This is particularly the case with respect to questions concerning depoliticisation, sovereignty and democratic legitimacy. Kelsen takes the positivist side of Hobbes’ classic work, Leviathan, and reinterprets it selectively through the ideological framework of classic liberalism, albeit in certain ways that many classic liberal theorists from Locke to Montesquieu would have rejected as excessively legalistic (Schmitt 1996). As a result, it is both possible and useful to interpret his sociological jurisprudential critique of Kelsen as a criticism in microcosm of selected aspects of liberalism more generally and, in some respects at least, vice versa. As Dyzenhaus notes: Schmitt also devoted himself to exposing what he considered to be the inherent contradictions of liberal legalism in particular the contradiction he thought he had uncovered between liberal legalism and democracy. Schmitt found Hans Kelsen to be the theorist, par excellence of the bourgeois Rechtsstaat. To Schmitt, Kelsen’s legal positivism and accompanying democratic theory were the exemplar of contradictory liberal legalism. … Schmitt believes that by exposing contradictions in Kelsen’s doctrine of legal positivism; he simultaneously exposes the contradictory nature of liberalism. (Dyzenhaus 1994: 1) Schmitt remorselessly exposed discrepancies and contradictions between the distinctly liberal ideological components and the specifically democratic aspect of parliamentary democracy, for which the constitutional expression of whatever is the ‘will of the people’ is decisive (Burchard 2006). The former insists that certain formal and institutional preconditions for valid law and legislation, including those stressed by Kelsenian normativism, and substantive values such as fundamental rights, possess a universal validity that demands legal endorsement irrespective of the current ‘will of the people’ (Schmitt 2004a: 24–5). When characterising the nature of the liberal constitutional model of governance, or ‘Rechtsstaat’, and law more generally, which in Legality and Legitimacy (1932, 1988) he terms ‘the legislative state’, Schmitt’s analysis expressly highlights features shared with Kelsen’s positivistic jurisprudence. To some extent, this allows us to interpret his critical analysis of the limitations, outdated social underpinnings and contradictions of the legislative state model, which by 1932 had contributed to its ‘collapse’, as also a critique of such positivism (Schmitt 2004b: 3). Certainly, Schmitt downplays those aspects of liberal and enlightenment thought that flatly contradict aspects of Kelsen’s project, particularly the latter’s value relativism, and his total rejection of the relevance to legal analysis of the

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moral features of natural law, natural rights/human rights standards taken as moral absolutes. Instead, he selectively focuses upon the common ground allowing us to take his critique of Kelsen as having wider applicability to liberal normativism more generally, and vice versa. In short, Schmitt has provided a distinctly critical analysis of the normativism, formalism and legal positivist dimensions to contemporary liberal ideologies of law both generally and – in the field of jurisprudence – with respect to Kelsenian theory. He argues that their agenda is founded upon the largely implicit prioritisation of one term of a series of oppositions or dichotomies, such as law/fact and law/politics. In turn, this results in at best a one-sided, overly formal and incomplete account of our experiences of how modern law and legal systems tend to operate in practice. In particular, the ideological attempts to exclude politics, discretion, interpretative contingency and judicial discretion from a liberal model of law have failed to provide a realistic and convincing understanding of familiar dimensions of legal experience, which typically remains pervaded precisely by these excluded dimensions. The fact that the ideological orientation and practices of liberalism remain dominant is not testimony to the cognitive and rational power of its specific claims. Instead, this stems from practical and rhetorical successes in vindicating its own premises as somehow normal, self-evident and to be accepted as a matter of course. That is, to the remarkable rhetorical success of its distinctly ideological elements, which exemplify but also dovetail neatly into, wider ideological legitimations of post-welfare state capitalism. So far we have seen that Schmitt’s critical analysis of liberal ideology centres largely upon domestic public law issues concerning legality, the rule of law, normativism, official discretion and the judicial role. However, it is equally important to recognise its extension to the field of international law, including international criminal law, in particular with reference to the topic of the next section: liberal cosmopolitan ideologies, including, as a subset, an ‘ideology of humanity’.

Liberal cosmopolitan ideologies Schmitt’s writings on international law and relations contain a powerful critique of the universalistic ideology of liberal cosmopolitanism. He relates this most notably to the typical legal orientation promoted by, and associated with, the ‘imperialism’ of both the British maritime system, and later – as Britain declined – by US President Woodrow Wilson and his successors. Schmitt insists that the emergence and entrenchment within international law and relations of the universalistic orientation of Wilsonian liberalism has been a decisive event. As an ideology of liberal democracy promoted vigorously by Britain and America, its methods have influenced major intraEuropean political issues, such as the protection of minorities. This ideology

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has succeeded in disrupting and disorienting the spatial ordering principles of the three-century tradition of European International law (JPE), not least by justifying interference by non-European powers, particularly the United States. The League of Nations perished because it sought to embody both abstract universalism and incompatible aspects of the spatially-delimited Eurocentrism of the JPE (Schmitt 1932/1988: 296–7; Schmitt 1926: 19 ff). Even critics of Schmitt’s work overall have conceded that his critiques of the ideological manipulation of the categories and terminology of international law ‘pose a special challenge’. For Scheuerman, this is because of his: [P]erceptive analysis of the League of Nations and modern forms of imperialism. Of particular importance here is Schmitt’s early fascination with the sources of US hegemony in central and South America, as well as his discussion of the increasingly decisive role of the United States in the European arena after World War 1. (Scheuerman 1999: 141) This ‘critic’ appears to accept as legitimate aspects of Schmitt’s critique of ‘the ills of US foreign policy’ and ‘American imperialism’ – which included a sharp discrepancy between legal idealism and political cynicism, whilst – unlike Hans Morgenthau – rejecting any generalisation to liberal international law per se (Scheuerman 1999: 142, 244). At the outset, it is necessary to highlight a question of borders: Where does Schmitt’s critique of US imperialism fit in relation to his wider criticism of the ideology of liberalism? Whilst I have presented the former as a distinct, if irreducible, subset of the latter, it would be possible to invert this: claiming that his entire critique of liberalism is anti-imperialist, at least implicitly, because liberalism rests on ‘universalistic’ concepts that dovetail into the legitimation of global forms of domination. ‘Universalism’ in this context includes the idea that certain norms, such as the liberal interpretation of the rule of law, are unconditionally rational, legitimate and globally applicable. It follows from the acceptance of universalism that international law must be reshaped to both embody and – through a world court and policing system – to enforce these (Scheuerman 1999: 144). Certainly, in his mid-to-late-Weimar writings, Schmitt characterises liberal cosmopolitanism as an ideology behind which the capitalist states disguise their hegemonic control over what has now been redefined as the ‘Western Hemisphere’. Within the international realm, this ideology deploys conceptions of universal morality, human rights, international security and perpetual peace as polemical devices to subjugate defeated nations, such as Germany, who are thereby prevented from exercising sovereignty. My point is that whilst one can reinterpret Schmitt’s various critiques of liberalism as expressions of a wider anti-imperialist orientation (at least with

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respect to Anglo-American imperialistic tendencies), I have adopted a more cautious approach. This entails viewing a Schmittian critique of US-led imperialism as a partially autonomous subset of his more generalised critique of liberalism, much of which lacks any direct reference to international affairs, such as imperialist practices and their ideological justification. The claims, contemporary pertinence and implications of Schmitt’s critique of US imperialism made between the mid-1920s to the early 1960s – finishing with the Theory of the Partisan in 1963 (Schmitt 2009) – need to be assessed and critically analysed strictly upon their own merits. A central and arguably distinctive theme for a Schmittian critique of US imperialism, understood in this modified sense, are forms of power and domination stemming from the strategic interpretative manipulation of the clauses of international treaties. Together with the deployment of universalistic ‘ideologies of humanity’, such manipulation operates as an imperialist device in the sense of authorising and legitimating specific, if strategically concealed, geopolitical agendas of an expansive and interventionist type. In themselves, these have no intrinsic relation to international law rules, principles or values. Schmitt repeatedly argues against universalistic ideological orientations that invoke overly general categories, maintaining that legal and political concepts are always responses to historically specific and particular issues and questions. Such concepts are comprehensible only when understood in the specific contexts within which they are formulated (Schmitt 1993). However, for present purposes, the relevant part of this Schmittian critique is not the theoretical-jurisprudential problems stemming from such overgeneralisation. Instead, what is especially pertinent is his analysis of the deployment of ‘universal’ categories operating within and beyond international law as distinctly ideological devices to legitimate specific and concrete power complexes. These include concrete geopolitical relations of control and subordination between nation states and regional powerblocs. Ulmen’s helpful, if terse, commentary identifies the dialectical connection of mutual implication between the globalisation of would-be universalism at the cultural level of international law, and economic imperialism – with the politics of the latter generating contradictions in the former: Imperialism and universalism are conceptual pairs, as are international law and world order. Schmitt analyses an unresolved dialectic in both American imperialism and American universalism. He traces its sources in the transformation of the Monroe Doctrine into a policy of global intervention. On the one hand, he sees a liberal economic distortion of the political resulting in the spatial chaos of international law; on the other, a democratic distortion of universalism resulting in pseudo-

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universalism. Nevertheless he understands that economic imperialism is still essentially political, even as pseudo-universalism is still essentially universalistic. Concretely, political universalism is as much a fiction as humanity as a political subject. Even as he exposes American pseudouniversalism, Schmitt reveals the political nature of the US in world affairs. (Ulmen 1987a: 54) Indeed, Schmitt developed a series of analyses that stress the affinities between US imperialism and specific aspects of liberal cosmopolitanism’s ideological orientation towards international law. In particular, he addresses the decisive role played by its ‘discriminatory’ model of war, which resorts to a moralistic distinction between ‘just’ (defensive) and ‘unjust’ (aggressive) wars, the ‘moralisation’ of international criminal law more generally, and the displacement of concrete spatial orders with an abstract and spaceless cosmopolitanism hostile to nation states and their sovereignty (Schmitt 1996b: 47–8).17 The former leads to the ideological demonisation of the enemy as a ‘foe’ meriting annihilation. Furthermore, he argues that the brutalities of 20th-century ‘total war’ have been encouraged by such universalistic cosmopolitanism through the promotion of ‘a self-righteous brand of pseudo-humanitarianism blind to the terrible dangers of state violence waged under the banner of a (fictional) singular humanity’ (Scheuerman 2004: 537). In addition, this movement, promoted by US imperialism, is responsible for the blurring of the distinctions between war and peace, and military targets and civilisation, which were amongst the JPE’s most welcome and important achievements. Hans Morgenthau’s later international law theory shares this Schmittian argument (Scheuerman 1999: 243–4). Although promoting a remoralisation of international law, the universalism associated with imperialist influence is itself amoral, if not immoral, in that it involves a strategy of deception: ‘a false universalisation not only because selfinterested Great Powers (e.g., Great Britain and the United States typically)

17  Perhaps the most concise and emphatic formulation is contained in Schmitt’s ‘Voelkerrechtliche Formen des modernen Imperialismus’ [1932], in his Positionen und Begriffe im Kampf mit Weimar- Genf- Versailles (Berlin: Duncker & Humblot, Nachdruck 1988), 162–80. His other works relevant to US imperialism include: ‘Großraum gegen Universalismus. Der völkerrechtliche Kampf um die Monroedoktrin’, ibid, 295–302; and ‘Der Reichsbegriff im Völkerrecht’, ibid, 303–12. Frieden oder Pazifismus? Arbeiten zum Völkerrecht und zur internationalen Politik (hrsg. von Günter Maschke (Berlin: Duncker & Humblot 2005), 349–67. For an impressive overall summary, see G.L. Ulmen, ‘American Imperialism and International Law: Carl Schmitt on the US in World Affairs’ (Summer 1987) 72 Telos 43–71.

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interpret and enforce it, but also because its humanitarian rhetoric masks their pursuit of global economic domination’ (Scheuerman 2004: 537).

Ideologies of humanity Schmitt’s notion of the ‘ideology of humanity’ is based on the idea that appeals to this and other universal categories radiating positive moral associations, including ‘justice’, the ‘good’, ‘perpetual peace’ and ‘religious truth’, are typically rhetorical acts serving a specific – if often strategically concealed – political purpose. Hence, in this sense, they can be understood as ‘political weapons’ (Axtmann 2007: 535). Insofar as such rhetoric influences parties in political conflict, infecting them with a self-righteous moral crusader orientation, this ideology can both create incoherence at the theoretical level, whilst also becoming counterproductive in practice. Schmitt maintains that the category and discourse of ‘humanity’ operates here as an ‘asymmetrical concept’ offering the real possibility of the ‘deepest inequality’. In one sense, every individual belongs to humanity as a species category. And yet, the ideology of humanity introduces an act of ‘discrimination’ within this category. It does so by denying the quality of being human to those political enemies of the ideologist in question, who are then successfully labelled as disturbers or destroyers of international peace or security. The result is to strip away the perceived humanity from the labelled group or nation, who thereby can be treated as non-persons: ‘whose life is no longer the highest value but becomes worthless and must be destroyed’ (Schmitt 1987: 88). Schmitt maintains that: To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity, and a war can thereby be driven to the most extreme inhumanity. (Schmitt 1996a: 54) This can occur when such dehumanisation encourages and legitimates: ‘the worst enmities, finally the war of all against all’ (Schmitt 1996a: 65). One must not forget, Schmitt claims, that: The worse confusion arises when concepts such as justice and freedom are used to legitimize one’s own political ambitions and to disqualify or demoralize the enemy. … There always are concrete human groupings which fight other human groupings in the name of justice, humanity, order, or peace. When being reproached for immorality and cynicism, the spectator of political phenomena can always recognize in such reproaches a political weapon used in actual combat. (Schmitt 1996a: 66–7)

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With the pseudo-moralistic qualities of Wilsonian liberalism clearly in his sights, Schmitt notes: ‘A war waged to expand or protect economic power must, with the aid of propaganda, turn into a crusade and into the last war of humanity’ (Schmitt 1996a: 79). He gives the example of how the seizure and redistribution of German colonies by the victorious Allies in 1918–19 was articulated by Article 22 of the Versailles Treaty as: ‘an act of selfless humanity’ (Schmitt 1996a: 73). Schmitt’s reaction to such ideological deployments, of which US President Wilson’s liberalism is clearly treated as symptomatic, is decidedly critical. His work emphasises the element of sheer deception and concealed selfinterest involved in the strategic over-generalisation of one group or state’s particular interests as somehow those of humanity itself, and the resulting disqualification from the realm of humanity of its political enemies. He also notes its potential for legitimating especially brutal forms of imperialistic practices: When a state fights its political enemies in the name of humanity, it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent. At the expense of its opponent, it tries to identify itself with humanity in the same way as one can misuse peace, justice, progress, and civilization in order to claim these as one’s own and deny the same to the enemy. The concept of humanity is an especially useful ideological instrument of imperialist expansion, and in its ethical-humanitarian form it is a specific vehicle of economic imperialism. Here one is reminded of a somewhat modified expression of Proudhon’s, whoever invokes humanity wants to cheat. (Schmitt 1996a: 54) Schmitt suggests that the ideological deployment of conceptions of humanity generates a chain of similar rhetoric, euphemisms and deceptive interpretative operations, in which – as predicted in Orwell’s 1984 – words are ideologically transformed into the opposite of their actual social function. Hence, real military interventions against political enemies (but made in the name of humanity or ‘humanitarian intervention’ (Brown 2007)) reinterpret this geopolitical reality as a ‘police action’ of law enforcement, and righteous sanctions of the fictive ‘international community’, which are directed against a ‘disturber of the peace’, and hence an outlaw of humanity (Schmitt 1996a: 79). Schmitt thus argues for a noticeably critical analysis of the rhetorical and linguistic dimensions of liberal cosmopolitan appeals to conceptions of humanity within, say, international law and relations, which emphasise their ideological and political functions as polemical devices. That is, as tactical manoeuvres within a wider strategic and geopolitical conflicts

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between rival forces and movements, where euphemistic words and phrases expressive of apparently non-political and universal moral categories, operate as strategic camouflage within ongoing ideological-political conflict. His critique of liberal cosmopolitan appeals to ‘humanity’ focuses less on this polemical function than on its strategic denial and disguise, together with the sometimes counterproductive effects of its deployment in practice. As Axtmann nicely summarises: War and justice; peace and humanity: how to understand these concepts, their relationships and the ‘reality’ they conceive has been at the centre of Schmitt’s critical engagement with liberal universalism. The invocation of ‘humanity’, Schmitt argues, is an ideological cover for power politics, while ‘humanity’ cannot be a ‘political’ concept in Schmitt’s definition of the political: the uses to which the concept is put are deeply ‘political’. Crusades in the name of ‘humanity’ still remain wars, even if one prefers to speak of ‘humanitarian interventions’. To speak of ‘justice’, ‘humanity’ and the shared interests of ‘humankind’ opens up the possibility for an ethical discourse, which allows for the moral damnation of the enemy as ‘evil’ and, in extremis, its annihilation. The enemy becomes foe. In the mortal struggle between ‘good’ and ‘evil’, there can be no neutral third. A just war is a ‘total war’, everyone is party, no one bystander; and the just cause ‘justifies’ use of whatever means must be deployed to eradicate ‘evil’. (Axtmann 2007: 547) In short, Schmitt provides a distinctly critical analysis of the nature and negative consequences of both liberal ideologies of legality and liberal cosmopolitan ideologies of humanity. For Schmitt, within dominant liberal constitutional legal discourses from the 1890s onwards, references to ‘humanity’ have degenerated into a distinctly ideological practice in another sense of this richly complex term: one related to the logics of social control mechanisms. Such deployments of ideological references have become part of a ‘psycho-technical machinery of mass suggestion’ linked to a cluster of related rhetorics of ‘global peace’, ‘freedom’, ‘human rights’ and even ‘security’. Each of these ideals are founded upon a highly questionable, depoliticised and pacifist model of what it means to be human (or ‘ontology’), whose individualism is oriented towards the vindication of formal rights and contractual obligations: ‘By way of an anthropological sleight of hand, liberalism represents itself as an ethos, a moral and economic emancipation, and not as what it really is, namely, a power-political regime with traditional power-political aims’ (Rasch 2005: 255). Hence, there is more to Schmitt’s objection that the liberal tradition of international law both superimposes and substitutes an ideological interpretation of humanity that deceives those who are

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assimilated into its agenda by disguising its own contingency and particularistic value-judgements. Indeed, his objections go beyond the largely cognitive difficulties already discussed to embrace the practice of institutional violence. Schmitt suggest that liberalism’s ideological reinterpretation of humanity is connected to the covert politics of social control involving the coercion of widespread popular acceptance and compliance through programmes of systematic deception. This is because another implicit claim follows on from those already discussed: that the liberal tradition’s highly selective reinterpretation and strategic projection of ‘humanity’ must be recognised as meriting general acceptance amongst the public at large as the basis for legitimate actions and public policies. In turn, the demand for such unconditional affirmation derives from a related claim, already discussed: namely, that the category of humanity is clearly rooted in, and directly articulates, the essential nature of this topic itself. Hence, it simply demands acceptance by any genuinely rational person. This contention remains deeply ideological insofar as the subtext continues to be the false universalisation of a particular agenda of interests and concerns through appeals to the need for universal institutional recognition of ‘human rights’. The disguised rationale here involves a sustained effort to both secure and solidify a spurious form of institutional and ideological legitimacy. This takes place through the mobilisation and assimilation of concrete individuals and groups into a singular and pre-given order and orientation to whose dictates they are expected to conform. For Schmitt, such legitimation exhibits the potential to serve the ethically dubious cause of an expansionist form of imperialism: one that seeks to usurp humanity for its own monopolistic purposes: However, as soon as particular peoples and social groups, or even individuals, make use of them [universal abstract categories such as humanity] in order to identify themselves with the others, the regulative idea is transformed into an awful instrument of human domination. Even within the narrow boundaries of the state […] it is a dangerous deception when one single group pursues its special interests in the name of the whole, and unjustifiably identifies itself with the state. For then the name of the state serves only political suppression and deprivation of rights. And when, for the first time, a supreme and universal concept like humanity is used politically so as to identify a single people or a particular social organization with it, then the potential arises for a most awful expansion and a murderous imperialism. (Schmitt 1999: 205) Schmitt identifies a contradiction here as well. The concrete implications of the application of this ideology, which is rich in pacifist and other

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moralistic assumptions, contradict its own premises. The Schmittian approach emphasises how – for their particular purposes – major powers and superpowers misappropriate and then monopolise their own projected interpretation of humanity as a universal term. This ideological move forms part of wider strategy to secure or sustain global domination – by military means if necessary – for their highly specific geopolitical agendas. For instance, Schmitt writes: When a state fights its political enemy in the name of humanity, it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent. At the expense of its opponent, it tries to identify itself with humanity in the same way as one can misuse peace, justice, progress, and civilization in order to claim these as one’s own and to deny the same to the enemy. (Schmitt 1996a: 54) Indeed, by purporting to be speaking and acting in the name of humanity and human rights, advocates of the liberal cosmopolitan programme may claim to possess an essentially unilateral right to intervene militarily in the affairs of other nation states. As Schmitt claims in his Völkerrechtliche Grossraumordnun: ‘Universalist, all-embracing global and general concepts are in international law the typical weapons of interventionism’ (Schmitt 1991a: 43). The supposedly absolute status of this would-be ‘right’ is often dressed up rhetorically as a ‘moral duty’ of humanitarian intervention by states purporting to apply an ‘ethical foreign policy’ (Brown 2007). The absolutism of this programme is also clear from its reiteration of already discredited and classic natural law premises, some of which endorse ‘just war’ thinking (Weigel 2009). Such fundamentalist absolutism, which Schmitt identifies within the Nuremberg Charter, appears to be unaffected even by the absence of any clear grounding of its claims in established international law doctrine (Schmitt 2011/1994; Stirk 2006: 6). Stirk thus has little difficulty in finding within Schmitt’s writings on international law a fundamental criticism of a ‘pan-interventionist world ideology that interferes in everything under humanitarian pretences’ (Stirk 2006: 16, 108). And yet the ideology of humanity’s very claim to merit general and rationally-based acceptance, discussed above, undermines its credibility. It does so by resorting to other, distinctly non-rational and rhetorical methods for indoctrination and influence in pursuit of the legitimation of relations of domination. According to Schmitt, when scholars and practitioners of liberal international criminal law deploy ‘humanity’ as an ideological phrase, it conjures up rhetorically a series of wholly positive images that tend to bypass our critical faculties. In turn, amongst speakers as well as their audiences, these images tend to encourage a one-sided orientation of

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optimism and affirmation of the status quo, or at least the latter’s core principles. From Schmitt’s perspective, we inhabit a ‘pluriverse’, not a universe; that is, a pluralistic and thus highly differentiated local, regional, national and international order, where such differences remain a core and irreducible phenomena. No viable model of humanity within this field can really afford to discount the sheer particularism and spatial rootedness of such extrarational factors. To do so would involve distorting the very qualities of many, perhaps the majority, of the issues and themes that are, to a greater or lesser extent, regulated by international laws. Indeed, these particularistic affinities and affiliations are contextual qualities that, in terms of their mediating role, may well be at least as pervasive as those ‘universals’, such as humanity and its various offshoots, which liberal cosmopolitanism emphasises and promotes in a distinctly one-sided manner. Certainly, such particularistic qualities and affiliations underpin many of those programmes of genocide, warfare and violent struggle between nation states and alliances, which comprise much of the material substance of contexts requiring regulation by international criminal law. These qualities also pervade the geopolitics of their domestic and transnational contestation, such as pacifist movements that declare war on war itself. The ideological rhetorical deployment of ‘humanity’ thus enjoys a ‘power of suggestion’ that works in combination with a cluster of related categories of liberal ideology, such as individual ‘freedom’, ‘justice’, ‘human rights’, ‘world peace’, ‘progress’, ‘civilization’ and the ‘rule of law’. Liberal rhetorical appeals to ‘humanity’, working alongside these and other supposedly heart-warming general phrases, evoke the fairy-tale image of an ‘international community’ or ‘global village’: one from which consciousness of the perennial political and existential issues of life and death have finally been banished. These, in turn, tend to divert attention away from those ‘negative’ associations of human and institutional actions and their consequences, which would probably otherwise exhibit more critical social and institutional implications. Indeed, Schmitt maintains that within international law, the selective interpretations and applications of ‘humanity’, infused as they are with the secular religion of human rights, both distort and conceal an underlying clash of contextually specific political interests. Such depoliticisations have, according to Schmitt, even extended into the subjective realm. Here, we have witnessed the ideological creation and promotion of a depoliticised model of what it means to be an international lawyer, a type of political animal whose micro-sovereignty has to be strategically misrepresented, as if our modus operandi was essentially technocratic, rather than legislative. In particular, this model interprets the task of lawyers as that of merely declaring and faithfully applying whatever already ‘is the law’, as distinct from the more activist role prescribing (albeit

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in a competitive situation of collective will-formation) what should, hereafter, be the legal position. Schmitt argues that the ideology of humanity relies upon a fundamentally optimistic, positive and even utopian conception of ‘human nature’, on whose basis it generates a decidedly idealistic model of historical ‘progress’ within and beyond international law (Schmitt 1996a: 58–62). Schmitt’s Political Theology II argues that we are witnessing a distinctly humanistsecular model of history oriented, in a utopian fashion, towards projected goals of self-determination at every level. Such humanism, which rejects every source of values other than its own ideology, reads its own idealistic preferences into everything. As a result, such humanism can see nothing but actual or potential instances of the onwards ‘progress’ of ‘humanity’: Our contemporary society is progressive. This unfettered progress entails a value-free and scientific attitude, the commodification of all values and the augmentation of liberal human consumption … and is finally a homising [humanisierende] society … this kind of eschatology can therefore only be a homo-homini-homo eschatology. At most … an utopia on the principle of hope, the content of which is an homo abscondis who produces himself and, moreover, produces the conditions for his own possibility. (Schmitt 2008b: 54) More generally, classic liberal ideology deploys a self-validating notion of historical ‘progress’ as ‘enlightenment’, in which the suppression of all political alternatives to secular liberalism and humanism as a dominant and monopolistic ideology is strategically portrayed as the fulfilment of the ‘moral perfection of humanity’. Hence, global liberalisation is ideologically presented as an act of species-wide self-liberation, the fulsome ‘humanisation’ of social relations (Schmitt 1996a: 73). Ideological deployments of categories of humanity within international law suggest that geopolitics, and thereby democratic popular sovereignty, have finally become entirely instrumentalised. Through the enhancement of the rule of law and associated liberal constitutional devices, they have – it is typically claimed – successfully become ‘tamed’ as the culmination of an ongoing historical ‘progress’ moving along a single pre-ordained channel. What this historical legend, more precisely ‘philosophy of history’, takes for granted is the unfolding of a historical sequence of linear stages: one whose predestined end point and internal goal is a model of fully evolved ‘humanity’. In turn, the latter is interpreted as the process through which humanity – understood as a single collective subjectivity – ‘comes into its own’, as it were (Schmitt 1988: 55, 60). Such self-determination is supposed to occur by means of a mythical process of evolutionary self-realisation and self-determination: one that has allegedly abolished for all time the politics

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of the competitive appropriation and re-appropriation of land and industrial capital (Ulmen 1987a: 46–7). The ideology of humanity claims, or at least implies, that ‘progress’ along this path of civilisation has now advanced to the point where the control of international law by geopolitical factors has become tamed, even reversed through the ever-greater applicability of the ‘rule of law’ between nations. These political factors include the operation of a legally unregulated form of power politics and articulations of national sovereignty, including executive decisions to wage war and declare a state of emergency. An important contention is that such actions are now becoming ever-better subordinated to specifically legal governance according to reasonable objective principles, including those enshrined in the Nuremberg legacy and the statute of the International Criminal Court. The optimism and utopian idealism of this progressivist approach contrasts markedly with specifically political models that, as a result of sober-minded interpretation of the ‘slaughter bench of human history’, recognise the essentially problematic, dynamic and dangerous character of our species. Thus, for Schmitt, when taken as a package, the ideological deployment of ‘humanity’ and related polemical expressions typically operate to shield international lawyers and scholars from a more realistic, sceptical and empirically-grounded orientation of pessimism. In particular, such lawyers and scholars become effectively immunised from formulating a stance of critical scepticism concerning the relationship between international law categories on the one hand, and the latter’s articulation of aspects of the geopolitical sphere on the other (Schmitt 1996a: 58–62). Within international law scholarship, only a remarkably one-sided pacifist and depoliticised model of humanity, an ‘ontological prioritisation of nonviolence’, can fail to recognise as equal expressions of humanity those extra-rational factors that underpin the extended history of mass killing and being killed (Rasch 2005: 254). This ideological model fails to register the fact that ‘humanity’ has certainly experienced a formidable amount of historical-technical development. However, from the invention of the first bow and arrow through to the contemporary refinement of nuclear weapons, such ‘progress’ also includes dramatic ‘advances’ in associated technologies of mass destruction threatening every species of life on planet earth. For instance, the historical nature of humanity includes its selfdomination by a succession of colonialisms and imperialism and institutions of different forms of slavery. A Schmittian approach to international law aims to give appropriate weight to this more dangerous and problematic side of ‘humanity’s achievements, and thus identifies itself with an expressly political and realist tradition of legal theory associated with Hobbes (Schmitt 1996a: 58–62). On this basis, it then becomes possible for a Schmittian analysis to call into question and qualify the one-sided prejudices, naïveties and blind spots of

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the ideology of humanity. Furthermore, the classic liberal presumption and norm of humanity enjoying peaceful coexistence encourages a dangerously assimilating and depoliticising ‘inclusiveness’ that – at the level of international law – offers potential for the imperial hegemony of a Pax Americana (Rasch 2005: 254–5). The Schmittian critique thus reinforces the fact that the ideology of humanity’s idealistic interpretation of ‘humanity’ is one thing, whilst humanity has shown historically that it is both something else and certainly something more (Schmitt 1996a: 58–62). In addition, the ideological neutralisations replicated by the ideology of humanity impede lawyers, including judges, from recognising their core nature and function as essentially political animals. The former replicates liberalism’s polemical attack on traditional justifications for state authority and independent sovereign power. It also promotes constitutional restrictions designed to emasculate such sovereignty (Schmitt 1996a: 60–1). Such idealism requires international lawyers and scholars to aim to become disinterested seekers after a form of global peace and freely negotiated cooperation, which is free from the endorsement and impact of national, group and other particular interests (Schmitt 1996a: 58–62). Schmitt insists that the progressivist model of development, combined with an optimistic and idealistic model of human nature, generates an interpretative framework whose implications are dangerously anti-pluralistic. No longer does the ‘human condition’ include actual or potential conflict between groups seeking to realise their own distinctive and self-defined particular interests. Instead, the particularism of group conflict and belonging becomes effectively discounted. It is dismissed by an unmediated form of individualism, which is linked to appeals to an equally unmediated collectivism of ‘humanity in general’ (Schmitt 1941: 270–5). In turn, this unstable mixture of incompatible priorities typically remains capable of recognising flesh-and-blood individuals only as abstractions and mere exemplars of ‘humanity at large’. In other words, the unmediated individualism of the liberal cosmopolitan agenda has, as its counterpart, the unmediated collectivism of ‘humanity at large’ (Schmitt 1996a: 54–5, 60). The resulting incapacity to give positive recognition to mediation of both the individual and humanity by a range of particular interests, shared values and group identities of a specific cultural tradition, is problematic. It results in the ideology of humanity failing to recognise the intrinsic pluralism of multiple levels of collective belonging to specific family, work, leisure, local, regional, cultural, religious, ethnic and community networks and relationships, which typically mediate every person’s life and overall sense of identity. Schmitt notes that the emergence of the category of ‘the West’ arose precisely at this time of US ascendancy, and displaced Eurocenticism with Atlanticism, with the East Coast of the United States becoming a central geopolitical point on which an increasingly ‘unipolar’ world rotates.

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Weapons superiority became a key source of US meta-sovereignty. This has been cleverly disguised through both the ideological invocation of the interests of an Americanised conception of ‘humanity’ as a ‘just cause’ and object of ‘just war’, and the criminalisation of those projected as the public enemies of humanity itself. That is, the selective criminalisation of those who obstructed or resisted such hegemony and meta-sovereignty (Schmitt 1996a: 79; Aravamudan 2005: 234; Weigel 2009). In this way, the US strategic appeals to notions of humanity operates ideologically as a fake universalism, a rhetorical reference to, and interpretive projection of, a merely ‘fictive community’, from which the interests and concerns of weaker states and militarily defeated nations have typically been removed (Schmitt 1938: 53; Kaufman 1988). In this context, a Schmittian critique of the ideology of humanity includes – or at least certainly implies the need for – a sustained effort to challenge the implications of this ideology by resisting these and related forms of institutional exclusion and marginalisation of the interests of less dominant groups and peoples. According to Schmitt, this ideological process defines ‘humanity’ selectively in the essentially positive, pacifist and anti-political terms of a free-market oriented private law. In this respect, the liberal ideology of humanity involves the self-serving, yet basically questionable, ‘covering over’ of the real nature of liberalising politics and geopolitics. That is, a politics of economic globalisation and cultural domination of unregulated markets to be secured primarily through the undermining of the actual, or potentially, democratic sovereignty of individual nation states (Jabri 2007; Chandler 2006). Within the ideology of humanity, such sovereignty can only be reinterpreted polemically as a threat to ongoing liberalisation. This is because it obviously carries with it the possibility of a truly democratic rejection of liberal cosmopolitanism. In turn, the latter would destabilise the marriage of incompatibles, whose mutant offspring are baptised as ‘liberal democracy’ (Chandler 2008). A further objection Schmitt makes to the ideology of humanity concerns its tendency to disregard actually existing evidence of pluralism, which is exhibited both within and between nation states, in favour of the assimilation of differences into ‘sameness’. At its most banal, this tendency is found in familiar statements that call upon parties engaged in political dispute to put aside their ‘superficial’ and ‘artificial’ differences by embracing their supposedly common and deep-seated humanity within a presumed ‘natural’ solidarity of the entire species. Where this ideological rhetoric of humanity ‘succeeds’ in its ideological quest, it displaces from the agenda of discussion within international law any perceived obligations owed to all types of binding sources of authority, other than ascribed to law itself. In particular, it marginalises those vital forms of affiliation and authority that are grounded in various forms of cultural belonging and specific identities rooted emotionally in a particular place and cross-generational time. These

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may include: specific local and regional identities, ‘land of my fathers’, ‘land of our people’, ‘motherland’, ‘homeland defence’ etc. Within the everyday life of most known cultures, perceived violation of these highly particular and specific affiliations and attachments are typically reinterpreted (and thereby ‘experienced’) in strongly negative terms. Such violations of these strongly-felt affinities are generally interpreted as instances of ‘disloyalty’, ‘infidelity’, ‘treachery’, ‘betrayal’ and so forth. For example, deliberate insults to killed, wounded and serving members of the armed services, or even their poor treatment by state authorities who supposedly administer our ‘military covenant’, will typically provoke strongly negative reactions of a far more intense nature than similar actions taken against other public or private sector employees. Of course, such sources of informal authority, which are rooted in our specific affiliations and cultural identities, are essentially particularistic, differentiating and – in one sense – ‘non-rational’. However, to its discredit, no moral philosophy, least of that type of cosmopolitan neo-Kantianism underpinning the ideology of humanity, is able to either endorse or reject such evaluations. Indeed, these particularistic sources of real-life values typically evade the radar of such moral philosophy. As a result, the interpretative framework of liberal cosmopolitanism, which is prejudiced by its own one-sided rationalism, typically fails to either detect or expressly recognise these values as positive and enabling phenomena. It fails to grasp them as topics that any realistic form of international law scholarship has to address and accommodate. In turn, this leads to their virtual invisibility to those who interpret international law issues through the lens of a liberal cosmopolitan approach rooted in the assumptions of the ideology of humanity.

Law as authority, interpretation and power If one tendency within mainstream legal theory and education can be broadly characterised as ‘legal positivism’ and positivistic doctrinal studies, then the Schmittian model of law developed over the forthcoming chapters, is almost diametrically opposed to this approach (cf McCormick 1997: 207–8). It is necessary to draw some constructive lessons from Schmitt’s critique of Kelsenian positivism, noting how the latter rejects references to extra-normative sources of legal phenomena as if these constituted a form of contamination (Schmitt 2005a). As a complex institutional, professional and cultural reality, law is almost certainly more than ideology and politics. A reconstructed Schmittian approach does not address ‘law in general’. In any event, the latter is itself a hard concept to make sense of within a pluralistic world, a ‘pluriverse’ of contrasting legal systems giving effect to often incompatible understandings of what is deemed to count as law. Instead, Schmitt’s approach addresses

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only specific aspects of law as interpreted from its own theoretic-analytical perspective: one that opens itself up to substantial criticism and selfcriticism. For example, when broadly interpreted, the idea of law includes a range of interpretative and technical skills in the navigation of often complex procedural and doctrinal rules, or technical skills and lawyer-like techniques relevant to legal practice, including conveyancing and law enforcement. These elements of law fall outside the focus of Schmittian legal theory, and hence the scope of the present book. A major theme of a Schmittian approach to law is the need to identify and ideally transcend the problems, gaps and contradictions stemming from a purely normativist approach to this subject whose definition of law, and hence legal studies, is unduly narrow and technical. The latter defines law as a closed and self-contained system of formal norms organised into a hierarchy of levels, with each decision being authorised by a higher-level norm. Schmitt concludes that legal positivism promotes an unduly narrow conception of law and legal analysis. As already discussed, a legal positivistic approach, and here Kelsen is an exemplary negative role model, operates with a conception of law as a unified, closed and hierarchical system of pre-given technical norms granted an ultimate status as the object of legal analysis (Schmitt 2008a: 62). These norms must be studied by a formal (nonempirical) ‘legal science’: one that is cleansed of all ‘extra-legal’ factors. These include not only moral, ideological and theological considerations and values, but also all factual and causal issues relating, for instance, to the explanation of changing patterns of selective prosecution and law enforcement (Kelsen 1911: 9; Schmitt 2005a: 21). Safeguarding the purity of legal science requires, according to Kelsen, a fundamental distinction between a legal science of legal norms, and an empirical sociology of law in action. Only the former is scientific and jurisprudential (Kelsen 1992, 67–8, 84–9 [1934]). His version of jurisprudence is thus strictly normative, not empirical, discounting studies of law in action (McCormick 1997: 214). For example, sovereignty in any substantive politicised sense must, according to Kelsen’s Problem, der Souveranitat, be repressed in favour of a strictly formal notion: that the legal system’s order of norms was selfsufficient and independent of any extra-legal ‘higher’ norms (Kelsen 1920: 12–13). If the state is analysed in strictly legal, that is exclusively normative, terms then it can only appear to be comprised of norms. For as long as legal theory remained a normative science, then the state had to be grasped as identical to an ideal and objective order of public law norms giving a specifically legal significance to particular acts by, for example, authorising, requiring, prohibiting and restraining them (Kelsen: 1992: 99–106). The concept of law within a Schmittian approach to legal research is far wider than that of Kelsenian positivism, which it seeks to negate and transcend. His concept of law revives and creatively reworks aspects of early modern conceptions of the politics of state sovereignty that acknowledge the

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infusion of law with political realities. Not least amongst these is the necessity of judges having to make decisions on the basis of policy values, mythic beliefs and other symbolic representations, which cannot be grounded in a supposedly gapless system of legal doctrine (McCormick 1997: 207, 212, 215). Schmittian legal theory embraces as legal phenomena all those extranormative empirical factors that exert an ascertainable influence upon processes of legal decision-making, law enforcement and its concrete implications for affected parties. Thus, a Schmittian understanding of law rejects, and, to some measure, reverses each of the key tenets of Kelsen normativism. For Schmitt, law is interpreted not primarily as something pre-given, or ‘positive’, the current meaning of a given legal rule relating to the definition of the offence of crimes against humanity for example. Instead, his focus falls more upon the ongoing historical, institutional and ideological processes and practices out of which ‘the positive’ of legal positivism emerges and takes shape as such, and over time becomes re-enacted and possibly transformed (Schmitt 1988). Both the empirical history and politics of law and law reform need to be recognised not as ‘extrinsic’ factors contaminating the ‘purity’ of legal science, jeopardising its scientific credentials, but rather as internal to law itself. Schmitt further insists that the field of legal scholarship embraces the political and sociological realities of the contexts being subject to legal regulation, as well as concrete expressions of the life of the state (Schmitt 2005a: 15, 21; 1928: 41). Legal positivism defines law narrowly as state-sanctioned rules contained pre-eminently within central government legislation made by Parliament and, to a lesser extent, established common law or judge-made rules. By contrast, a Schmittian approach to legal studies adopts a far broader and interdisciplinary law in context approach to legal research. For instance, the contextual character of a Schmittian model of law finds expression in his cross referencing of the contents of judicial decisions to wider commercial imperatives and expectations relating to ‘legal certainty’, and hence ‘calculability’, in capitalist business affairs, including capital investment (Schmitt 2005a: 30). Furthermore, Schmitt recognises how the growth of welfare state legislation from the early decades of the 20th century has tended to expand the sheer quantity of spheres of social activity subject to legal regulation. It has also introduced expressly policy goal imperatives and requirements for concrete case-by-case specifications. These social developments, he claims, further contradict the rationalism of traditional normativist models of legal decision-making as a simple application of given doctrinal norms portraying the judge as the law’s mere mouthpiece and obedient servant. Another contextual element of Schmittian legal theory, which counterbalances its decisionist element, lies in its emphasis upon concrete institutional order analysis. This dimension addresses the cultural and

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institutional contexts underpinning different spheres of legal regulation. This includes family life as it is being generally ‘lived’ as a customary practice and culturally patterned way of life, including marriage as an established, but ever-changing, institution: one whose comparative stability over time transcends the purely personal sphere (Schmitt 2004a; Schmitt 2005a: 2–3). Concrete order thinking thus supplies a missing objective dimension of continuity within change, of common threads, patterns and structures, which prevents legal theory portraying law as a series of disconnected episodes and ad hoc events. For Schmitt, there can even be transnational concrete orders (Carty 2001: 39). Hence, a central analytical theme for a Schmittian theory of law concerns the degree of possible, if only partial, dependence of the judicial specification of formal doctrinal categories upon the contents and values of such underlying ‘concrete orders’, such as family life as it is concretely being lived. This theme includes the identification of how judicial assumptions inevitably draw selectively upon such orders when applying doctrinal categories to disputes arising from within these culturally patterned spheres of social action. For instance, in the context of divorce law, doctrinal categories of ‘reasonableness in all the circumstances’ and ‘unreasonable behaviour’, operate almost as open invitations for judges to employ their selective interpretation of intuitions of cultural norms and expectations indigenous to these concrete orders as co-determinants for their acts of decision-making. A similar point applies to how conceptions of ‘the standard of care’ and related criteria of ‘reasonableness’, operate within the law of negligence. From the perspective of Schmittian concrete order thinking, the semantic form of relevant doctrinal rules only appears to be self-sufficient and doctrinally self-determining. However, the practical application of ‘reasonableness’ necessarily involves a reinterpretation and value-judgement of a distinctly fact-driven, empirical kind. This reinterpretation is guided by expert medical witnesses testimony relating, for example, to how a ‘reasonably competent’ doctor could – relative to prevailing standards of medical good practice – ‘reasonably be expected’ to have acted within the context in question. No purely normativist analysis, which refuses to move beyond the four corners of formal sources of legal doctrine, can answer such substantive questions. This is because they require an understanding of how the institutionally organised medical profession currently defines the meaning and scope of ‘competent medical practice’. This explains Schmitt’s claim that: ‘The concept of the legal order contains two totally different elements: the normative element of the law and the existential (seinsmiifige) element of a concrete order’ (Schmitt 1928: 9–10). Part of the rationale for Schmitt’s type of concrete institutional order analysis is that it points beyond the well-known limits of a purely decisionist approach within both legal scholarship and judicial practice without

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reverting back to Kelsenian normativism. Indeed, Schmittian legal theory can be credibly read as an attempted overcoming from within of the dualism between normative and decisionist analysis of law, grounded in an institutional analysis of ‘concrete orders’, which supplement the limitations of both (Schmitt 2005a: 3). A wholly decisionist approach, whose expressly political analysis focuses upon the subjective interpretative performance of legal decision-makers, is clearly not only one-sided but also prone to generating inadequate accounts of the legal process. It is a jurisprudential form of philosophical ‘subjectivism’: one whose lack of sociological focus into institutional patterning exaggerates the scope for free choice and personal belief within the application of law by disregarding the influence and binding force of cultural tradition, made up of a range of concrete orders, upon individual judges (Schmitt 1912: 78–9). Indeed, the limitations of decisionism become particularly clear if we contrast their key claims and assumptions with those of Schmitt’s ‘concrete orders’ analysis, which relates legal themes and questions to specific institutional orders. As a pluralist field of organised collectivities ‘devoid of sovereignty’ within which the life of the nation is concrete lived, such as religious associations, trade associations, professional and trade groups, these concrete orders transcend the purely subjective and personal realms, whilst nevertheless effectively contextualising the normative sphere (Schmitt 2005a: 3). Legal and constitutional analysis must therefore recognise the contribution such concrete orders make to the vital task of securing the conditions for continuity, legitimacy and stability in social relationships. The latter underpins the possibility of ‘normal’ forms of constitutional governance. Within certain limits, each of these organisational realms institutionalises their members’ specific customs, practices and shared sense of what is judged ‘right’ and ‘appropriate’. As such, these realms are potentially able to determine for themselves the criteria of legitimate internal governance within their own limited sphere of operations, and thereby to supply the legal system with contextually appropriate criteria for what is and is not deemed to count as ‘reasonable in all the circumstances’. This capacity endures at least during ‘normal periods’, where the sovereignty of the modern state would – in the absence of abuse, criminality and political subversion – have to respect this self-regulatory function. Schmitt argues that the concrete order thinking he promotes represents a necessary corrective to the opposite but equally one-sided problems arising from both legal positivism and exaggerated types of decisionism. However, this corrective position still needs to be blended with a political theory of law and the state centred around the theory and practice of sovereignty: Whereas the pure normativist thinks in terms of impersonal rules, and the decisionist implements the good law of the correctly recognised

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political situation by means of a personal decision, institutional legal thinking unfolds in institutions and organisations that transcend the personal sphere. And whereas the normativist in his distortion makes of law a mere mode of operation of a state bureaucracy, and the decisionist, focusing on the moment, always runs the risk of missing the stable content inherent in every great political movement, an isolated institutional thinking leads to a pluralism characteristic of a feudalcorporate growth that is devoid of sovereignty. (Schmitt 2005a: 3) From a Schmittian perspective, the determination of concrete judicial and tribunal decision-making by extra-doctrinal considerations, which are drawn at least implicitly from the contents of a given ‘concrete order’, is not a question of supposedly ‘extraneous’ and ‘non-legal’ factors unnecessarily contaminating the supposedly ‘pure’ and formal science of law as Kelsen suggests. On the contrary, a Schmittian conception of law is far wider; it embraces all express and implicit, acknowledged and covert determinants of legal decision-making. Hence, prevailing lay understandings of the meaning and scope of ‘reasonableness’ within familial life, medical practice, civil service obligations, etc., are also ‘legal factors’. So too is all empirical evidence relating to the actual or presumed impact of a legislative or judicial decision upon different groups and interests in society, with such ascertainable concrete implications forming part of the ongoing legal significance of the decision itself (Schmitt 2005a: 2–3). Schmittian analysis thus places greater emphasis upon concrete contextual analysis of the emergence and impact of legal norms, as opposed to a purely formalistic analysis of, for example, an offence’s technicaldoctrinal meaning and scope. Such an approach also contrasts the inbuilt political substance of legal norms in action, over the supposedly ‘neutral’ judicial procedures through which they are decided upon within courtroom deliberations (Schmitt 1912: vi). In this way, Schmitt aims to show that, however one-sided, the reversal of positivistic assumptions and biases by a decisionistic legal theory produces a far more realistic account of how law actually operates in practice than is possible even with the most successful refinements of Kelsenian theory. Schmitt’s concrete order analysis does not make it clear whether decisionism has been superseded or whether such orders themselves participate in a more fundamental, if collectivist, type of politico-theological decisionism that continue to exemplify his conception of ‘the political’, which of course exhibits decisionist elements. One major, but highly instructive, contradiction affecting positivist attempts to analysis law as a coherent system of rules is, according to Schmitt, founded implicitly upon an extra-normative conception of what counts as ‘the normal situation’ (Schmitt 2005a: 6–7). For Schmitt, judges have no choice by to remedy ‘gaps’ in doctrinal codes. They do so by drawing, often

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in a suitably prudent manner, upon an extra-normative and socially constructed interpretation of the nature of ‘normality’ as they perceive it. This includes the sources of its disruption, the requirements for its restoration and when, in fact, this unexceptional condition has returned (McCormick 1997: 121–56, 215). It is on the basis of a contextually specific conception of projected ‘normality’ that, for example, emergency powers laws are interpreted as mere exceptions, and therefore irrelevant to a generalising jurisprudential concept of law (Schmitt 2005a: 38–41). By contrast, Schmitt insists that jurisprudence requires an understanding of materials, conceptual and historical aspects of ‘the exception’ as a precondition for any viable and suitably realistic account of law. Law in action is best viewed from the more realistic perspectives of ‘the exception’ than the norms of legal doctrine. This is because perspective opened up by the exception reveals interesting insights into the real-life workings of the legal system (Schmitt 2005a: 6, 13–15). Even where a valid judicial decision appears to have arisen through a straightforward process of the subsumption of given facts under positive norms, of judges simply applying given rules, Schmitt maintains this stems not from the binding quality of the logic of normativist analysis per se. This point, he argues, becomes clearer if we are willing to learn the lessons contained from surveying exceptional ‘hard cases’ (Schmitt 1912: 6, 39). By highlighting how such cases have been judicially resolved in practice, it becomes clear that this success cannot be attributed exclusively to the logical implications of a body of existing legal doctrine. Schmitt denies that doctrine can ever possess a once-and-for-all determinate meaning independent of the supplementary contributions stemming from the interpretative practices of judges themselves. Schmitt firmly rejects Kelsen’s claim that judicial decisions are only correct if they are either directly authorised by, or could by logical analytical means, be objectively derived from, the implications of a system of prior legal norms. He rejects all efforts to ‘ground’ (that is validate) a correct judicial decision in a particular case in prior positive norms or meta-rules, such as ‘the fiction’ of legislative ‘intention’, or the ‘will of parliament’ (Schmitt 1912: 26–8). Legal theory cannot entirely explain or validate such decisions by reference to the objective meaning and implications of such factors. The latter cannot fully explain why a particular judicial decision, dealing with the relationship between a particular set of facts and legal questions, was decided in the specific way it was (Schmitt 1912: 3, 20–1, 40–5). There is, however, no denying that the object of legal theory also includes doctrinal rules and principles, or ‘norms’, specifying what falls inside and outside specific doctrinal categories, such as ‘genocide’ and ‘crimes against humanity’. Indeed, Schmitt’s body of work includes some detailed, but still contextual, studies of specific constitutional clauses (Schmitt 1928). He does not make the mistake of confusing the fact that one aspect of law

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comprises legal norms, with a complete reduction of legal studies to a narrowly conceived doctrinal analysis, after the fashion of normativism, and draws constructive lessons from the latter’s failings. The Schmittian concept of law reconstructed in this section sharply opposes the ‘normativism’ of Kelsen’s legal positivism. That is, the idea that law consists essentially of abstract norms considered purely as such, including formal doctrinal rules determining the various requirements for identifying a legally recognised category, or distinctions between doctrinal categories, such as ‘the’ murder/ manslaughter distinction. By contrast, a Schmittian model operates with an interdisciplinary concept of law in which abstract general norms are but one ingredient of a far wider mix. The latter embraces the immediate factual circumstances of the case to which judges and tribunals apply doctrinal and procedural norms. It also includes the empirically ascertainable policy consequences of such applications of law upon, for instance, different social groups and in relation to ‘public confidence’ in the legitimacy of various legal, constitutional or govern­ mental systems (Schmitt 2005a: 15, 23; Schmitt 2009; McCormick 1997: 207, 217–18). The openness of Schmittian legal analysis to extra-doctrinal determinants of legal decision-making is not the contamination of legal analysis through the illicit importation of extrinsic, non-legal elements. For Schmitt, extradoctrinal elements are not necessarily extra-legal, least of all when they provide empirical evidence explaining how, in practice, legal decisions have been made and their differential impact upon social relations and groups. The exclusion of such contextual elements by normativist theories signifies the problematic abbreviation and undue restriction of what it means to study law, and thereby – ontologically – to be a legal researcher. On the contrary, it will be shown below how, for Schmitt, law – broadly interpreted – regularly exhibits a mixture and interaction of formal and abstract doctrinal norms and ‘concrete orders’, of law-in-action, as well as legal doctrine contained in authoritative textbooks and related ‘works of authority’. According to Schmitt, the Kelsenian normativist model of law also overstates the extent to which doctrinal certainty is possible through judicial acts of strict and faithful rule-following: the rule-governed application of positive doctrinal rules to given facts (Schmitt 1928: 131). No meta-rule of precedent or statutory interpretation can fully regulate whether a judge must interpret a given legal rule in a narrowly literal, or a broadly purposive and context-sensitive manner. A meta-rule also cannot prescribe whether such judicial decisions must be made according to ‘the letter’, as opposed to ‘the spirit’, of the law, or in terms of the imperative to safeguard doctrinal consistency on the one hand, or – on the other – to ‘do justice’ to the parties taking into account their conduct, particular needs and motivations (Schmitt 1912; Schmitt 2004a).

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For these and other linguistic-semiotic reasons, Schmitt draws the conclusion that the scope of discretion, and hence discretionary decisionmaking and even norm-free ‘decisionism’, must be recognised as typically far wider than normativist jurisprudence can ever concede (Salter and Twist 2007). Typically, the question is less the normativist one of: What does the law, understood as a system of doctrinal rules, state? Instead, it is closer to the decisionist question of: Who decides and on the basis of which interpretative or ideologically-loaded orientation? From a Kelsenian perspective, there can, in principle, be a single correct answer to all doctrinal questions: one which can be identified through a strictly formal doctrinal analysis capable of banishing ambiguities, and resolving uncertainties and apparent contradictions between rules, and between rules and principles. The presumption that law essentially consists of an internally coherent and broadly determinate system of rules, subject only to a limited number of contingent and temporary exceptions, is thus treated as axiomatic. For Schmitt, however, there is considerable empirical and experiential counter-evidence suggesting that law does not operate in a mechanical, and hence essentially predictable manner of a ‘frictionless functioning’ vending machine dispensing outcomes by following rules (Schmitt 2005a: 28). Instead, the essentially interpretative nature of the legal enterprise tends, in practice, to disrupt a mechanistic model of law. The legal system is not analogous to a vending machine that subsumes every case under a series of general and pre-given rules. Because the judicial role is essentially interpretative in nature, it resists being portrayed as a mechanical and exclusively logical process of subsumption of facts under norms. Indeed, for Schmitt, the interpretative realm of legal decision-making inhabits a different order from that of mechanical rule following, where standard outputs automatically follow providing one inputs the right information into it. Contrary to Kelsen, technically ‘correct’ subsumption (one that complies with meta-rules such as rules of statutory interpretation) cannot be the criteria of a valid judicial decision. Here Schmitt argues: ‘Herein we already have evidence [that] the ability to subsume’ cannot count as a criterion for the correctness of a judicial decision. Schmitt recognises that the problem lies in ascertaining the perceived ‘correctness’ of subsuming, which one cannot establish simply by means of further subsuming (Schmitt 1912: 62). This is because ‘a point of ascription cannot be derived from a norm’ (Schmitt 2005a: 32). As Rasch’s helpful commentary notes: He does not deny that subsumption is possible, especially when sophisticated, hermeneutical skills are employed, but he does deny that subsumption or legality (Gesetzmäßigkeit) is in itself the mark of legitimacy, precisely because the act of subsuming the particular under

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the general rule does not proceed automatically. The judge is something other than a ‘Subsumtionsmaschine’ (subsumption machine) or ‘Gesetzesautomat’ (law automat), for a decision is required of him that is of a different order than the determinate judgment implied by the act of subsumption. The general rule does not give the rules for its own application. (Rasch 2004a: 99) In other words, no matter how precisely and carefully a statute defines, say, an offence, this definition will remain incomplete. It cannot itself fully make redundant the interpretative and decisionist elements by prescribing in advance the entire range of situations to which judges should and should not apply it. It follows that a measure of doctrinal ambiguity and legal indeterminacy is unavoidable, and in this sense an unexceptional feature of any modern legal system that needs to be accepted on its own terms (Schmitt 2005a). Schmitt’s critique of Kelsenian normativism does not mean that his alternative model of law dismisses any references to doctrinal norms and doctrinal analysis whatsoever. The issue is not whether a viable concept of law includes or excludes formal legal norms. Instead, the question concerns their status within the legal process and – as a result – the role legal theory should afford to strictly normative analysis. It is the reduction of legal analysis to the analysis of abstract and decontextualised norms and intra-normative relations that is problematic, not the inclusion of rules and principles within the scope of jurisprudence. Indeed, for Schmitt, legal norms can certainly supply a loose qualitative framework of possibilities for a range of different judicial interpretations, each exhibiting varying degrees of credibility, the ‘quality of a content’. A Schmittian theory of law includes norms but only as one ingredient of a wider contextual approach that has learned the lessons from the instructive failures of normativism and legal formalism. In particular, and outside the field of judicial rhetoric of self-justification, Schmitt insists that no legal norm can, from its own resources, supply any definitive guidance to resolve conflicts between two or more credible interpretations of its significance and implications for the case in hand. Judicial reference and deference to given doctrinal norms plays a necessary, but inevitably insufficient, role in the overall process of the application of law. It follows that even the most conscientious judicial attempt to strictly follow the imperatives of positivistic declaratory models of the judicial role will, against their will and perhaps implicitly, violate Kelsenian imperatives. They will do so by having to rely upon the contingent and perennially fallible results of their own interpretative endeavours regarding what is deemed to count as the relevant and contextually appropriate meaning and scope of the norms, material facts and the relationship between them.

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In short, when applied to a concrete case, purely normative analysis cannot ground a decision that resolves the issues at hand. According to Schmitt, the idea that legal judgement is a process of subsumption dissolves into an infinite regress of norms necessarily derived for the application of further norms, and so on without end. Such subsumption of individual cases under general rules, and the rules themselves under other more general norms, can continue to infinity. What it needed to end this potentially endless regress is a sheer act of judicial decision, a quasilegislative judicial act, determining both the factual implications of the relevant norms and the normative meaning of the pertinent facts. The former act constitutes a non-determinate type of judgement, that is, one grounded in a judicial intuition of what counts as a ‘right result’ in all the circumstances of the case. The legal significance of both decisionist and normative elements, and how they are best combined, is itself arrived at only by an act of decision that determines not what they are, in themselves, but rather that which they will now be judicially understood as being for all practical purposes. According to Schmitt, within a particular case, judges cannot make a correct legal decision, as Kelsen suggests, solely through a process of deduction or generalisation from existing legal precedents or norms. On the contrary, each case will always exhibit a distinct and unique element, a moment of irreducible particularity. Schmitt terms this a moment of ‘concrete indifference’, which defies subsumption under general principles. It is precisely this inescapable aspect of legal judgement that Schmitt emphasises as particularly significant. He argues that this moment of ‘concrete indifference’ is a real aspect of adjudication: one that transcends the scope of Kelsenian positivism precisely because it also goes beyond those previously established legal norms upon which such positivism fixes its gaze. This necessary and vital ‘living substrate’ and human dimension thus persists in defiance of the formalism and normativism of legal positivism; it cannot be assimilated into, or recuperated by, the latter’s rationalist approach to law because this dimension represents an element of real-life erupting through the empty crust of formalistic and normativist understandings (Schmitt 1912: 69). Schmittian legal theory is expressly interpretative or hermeneutic. It rejects a ‘declarative approach’ to judicial interpretation: one that either banishes or marginalises the potentially active and creative, even constitutive, role played by judicial acts of selective interpretation and reinterpretation of fact, of legal rules and principles, and their reciprocal relationship. Indeed, he maintains that, in practice, such factors cannot be excluded from the scope of legal theory. For Schmitt, this declarative approach actually inverts the reality of judicial interpretation. It does so by attributing to legal norms the force of law when, in reality, it is only the interpretive interaction of both normative and interpretive-decisionist elements of law that determines

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real outcomes: ‘It happens the other way round. A point of ascription [interpretive act] first determines what a legal norm is and what normative rightness is’ (Schmitt 2005a: 32). In other words, that which judges ‘apply’ is not a legal norm taken in itself. Instead, it is a judge’s selective interpretation of the norm’s present significance and perceived ‘appropriateness’ for his or her interpretation of the ‘relevant’ facts of the case. Furthermore, Schmitt insists against Kelsen that there can no meta-rules capable of fully determining the application of rules to facts. This is not least because the distinction between material and non-material facts, and their appropriate selective reinterpretation, requires an essentially intuitiveinterpretative process of judgement (Schmitt 1914). It thus presupposes a distinctly human dimension, in which questions of what are the relevant facts, what is the meaning and scope of relevant legal rules, and how the former relate to the latter (and vice versa) are questions of ‘subjective’, more precisely ‘intersubjective’, interpretation. From a Schmittian perspective, the questions of whether X conduct does or does not meet doctrinal standards of ‘unreasonable behaviour’ in the context of divorce litigation, or whether the misappropriation of a library book is ‘dishonest’ sufficient to constitute a charge of ‘theft’, involve complex and selective reinterpretations of the meaning, scope and purpose of legal doctrine. These and related questions also raise reinterpretations of the significance of ‘the facts of the case’ in the light of possible legal tests. The meaning of the legal norm judges apply is mediated by acts of interpretation. Indeed, Schmitt implies that there are typically three related aspects of judicial interpretation: acts of identifying the norm, distinguishing between its ‘appropriate’ and ‘inappropriate’ aspects, and the filtering out of ‘immaterial’ factual aspects of the case in question. Each of these actions entail potentially constitutive acts of interpretation, which bring about and sustain the legal significance and implications of the normative and factual issues. In addition, ongoing acts of judicial interpretation and reinterpretation both establish and sustain the relationship between these different constituent parts of the application of law, albeit often at an implicit level. One implication of Schmitt’s critical analysis of normativism is that, to be true to its own mission, jurisprudence must embrace the empirical study of judicial and quasi-judicial activity in all its interpretive and ethical complexity (McCormick 1997: 215). For example, neither the projected ‘abnormality’ of the exception, nor the ‘normality’ of the normal situation, are givens. Instead, the intelligibility and implications of both have to be decided upon interpretively (Schmitt 2005a: 5–6, 13). Schmitt does not, however, celebrate the exception at the expense of the normal situation. Instead, he insists that these elements are mutually defining. A Schmittian focus on the exceptional context where normativism breaks down, is oriented towards drawing

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attention to the social groundedness of law in a dominant interpretation of the ‘normal situation’, not its anarchistic or fascistic negation (McCormick 1997: 226–7). According to Schmitt, legal norms are ongoing constructs linked to the specific interpretative practices of particular individuals, groups and institutions. He therefore denies the positivist claim that ideally legal decisions will be declarative, not constitutive of the meaning of legal norms. The opposite is closer to the truth: ‘there can never be absolutely declaratory decisions’ (Schmitt 2005a: 31). The meaning of any legal norm is that which it has been (re)interpreted as currently possessing by an authoritative body charged with this task, and always relative to the material circumstances of the case, or analogous-type contexts. For Schmitt, no such interpretative determination can be entirely free of a creative supplementary role susceptible to further ongoing development and supplementation. Schmitt’s theory of law includes a qualified decisionist element designed in part to restore the person-centred dimension to legal theory. The reduction of law to a closed system of norms, which mimics a problematic interpretation of 19th-century scientific method, depersonalises this field by obliterating an appreciation of its human dimension (Schmitt 2005a: 19, 48). According to Schmitt, any viable theory of law is, at the same time, a theory of decisionmaking grounded in an account of the necessary element of personalised and subjective decision within acts of legal interpretation. This demonstrates that the decisionist interpretative moment of legal interpretation is a necessary supplement to the content of ‘positive legal norm that is to be applied’ (Schmitt 2005a: 30). Schmitt is against the instrumental bureaucratisation of justice, associated with a positivistic approach, which ‘makes of law a mere mode of operation of a state bureaucracy’ (Schmitt 2005a: 3). Indeed, he insists that flesh-and-blood and all too human interpreters have to engage interpretively and conclusively with the unique specifics of particular disputes. These need to be engaged with both their particularity, and generality, that is, as instances of a doctrinally-normative recognisable ‘type of case’ (Schmitt 2005a: 29, 35). Hence, any credible theoretical account of law must focus upon the pragmatic and interpretive institutional activities of the legal system itself in generating concrete decisions found broadly acceptable for all practical purposes: ‘Thus, practice justifies itself by way of itself’ (Schmitt 1912: 86). In other words, the validity of a legal decision is derived not from an external doctrinal principle to which the decision refers, but rather immanently from the very subjective act of making the decision (Rasch 1994: 99). This amounts to one clearly ‘decisionist’ and ‘personalist’ element of a Schmittian approach to law directed polemically against normativism, which Schmitt interprets as both a variant of liberal ideologies of sham objectivity and the rule of law understood as an impersonal, yet all-controlling, force. Schmitt’s partial decisionism embraces all subjective (more precisely ‘intersubjective’)

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factors concerning, for instance, the ideological prejudices, more general orientation and social psychology of those who make legal decisions. This includes not only legislators, judges and members of tribunals but also officials responsible for acts of law enforcement (traffic wardens and bailiffs as well as police and state prosecutors). The scope of decisionism also covers those who supply ‘input’ into institutional processes of law reform that exert a demonstrable influence. Schmitt insists that a huge variety of state administrative operations, which legal positivism typically ignores, fall within the scope of his contextual conception of law, and hence legal studies. These include legislative acts overturning or bypassing earlier and inconvenient judicial decisions, and even the granting of both amnesties and pardons (Schmitt 2005a: 38). The alleged inability to completely subsume the individual case to a closed system of norms points towards a Schmittian theory of law that emphasises both limited legal indeterminacy and the vital interpretative role of decisionism within the legal process. Only a recognition of the latter element is capable of bridging the gap between the abstractness of legal doctrine as viewed through a Kelsenian lens, and the substantial fullness of real-life. As an empirical reality, judges have no option but, through selective acts of (re)interpretation, to mediate the gaps within the existing state of legal doctrine with a distinctly personal decision as to the significance and implications of ‘relevant’ facts and legal doctrine. Schmitt recognises that no legal norm can interpret, administer, apply or enforce itself, and that the focus of jurisprudence must include concrete cases studies of law in action centred around the empirical activities of specific participants in such activities (McCormick 1997: 218). In addition, and in a reversal of Kelsen positivism, Schmitt returns legal theory to certain of the early modern concerns with substantive state sovereignty, as well as the reality of personalised decisionism and discretion within state functions and operations. An element of decisionism is essential to any viable theory of law because, to become realised, laws need to be selectively (re)interpreted, applied and enforced. Jurisprudence needs to recognise the unbridgeable gap between abstract legal norms (rules and principles of legal doctrine) on the one hand, and concrete acts of decision-making and judgement on the other. It is important, therefore, for theorists to reconceptualise norms in terms of the concrete decision-making processes (Schmitt 2005a: 21, 30: Schmitt 1914: 79). In this sense, all law is thus situational law (McCormick 1997: 214). A judge who adopts a decisionist orientation typically adopts a largely rhetorical relationship to prior legal norms. He or she aims: ‘First of all to create a general decision for the concrete case at hand; his reasons for the decision only serve [only] to persuade …’ (Schmitt 1912: 97). Here, and in diametrical opposition to Kelsenian normativism, the movement is an ascending one from the bottom up. That is, from what is interpretively

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projected as being a fair and sensible outcome of the case considered as an overriding issue, to different ways in which the decision realising this desired outcome can be justified rhetorically by reference to existing norms. For a decisionist orientation, the ‘legal position’, as defined in Kelsenian terms, is not, therefore, treated as an authoritative and given state prescribed by prior norms. Instead, through interpretative acts of decision, norms are selectively reconstituted to legitimate the realisation of a desired outcome. As Rasch notes in relation the decisionist element of Schmittian analysis of judicial practice: The judge, by acting the way a judge should act, does not apply the law according to norms, but rather produces the norm in the very act of applying the law. The law, like the work of art, reveals the rules that guide its application only after it has been laid down. (Rasch 1994: 102) In other words, according to the decisionist dimension of Schmittian analysis, the moment of judicial receptivity and empathy is directed not at safeguarding the prevailing state of legal doctrine, but rather towards the immediate plight of the parties to the case. The applicable doctrinal position remains something to be reinvented in order to best fit with what has already been interpreted as being the best possible response to, and outcome for, the particular features and parties of the case. In short, a decision is held to ground both entire constitutional orders and more concrete judicial practices that take place within their overall framework. In Three Types of Juristic Thought (1934/2004a), Schmitt summarised concisely his understanding of decisionism: It is not the command as command, but the authority or the sovereignty of an ultimate decision given in a command, which constitutes the source of all law, that is, of all the norms and all the orders that follow from it. ... Consequently the sovereign decision can be juridically explained neither from a [ie antecedent] norm nor by a concrete order because for decisionism it is the decision that grounds both the norm and the order. The sovereign decision is an absolute beginning, and the beginning (understood as) such is nothing else than a sovereign decision. It springs out of a normative nothingness and from a concrete disorder. (Schmitt 2004a: 17, 21, 23) Schmitt’s qualified decisionism insists on two further points. First, that entire legal orders, together with their constituent elements, rest upon specific and distinctly political decisions as to their overall type (eg feudal, monarchical, liberal, authoritarian, fascist or socialist). This original collective decision and commitment continues to resonate and influence

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judicial and legislative actions within a given legal order, at least until its overall nature is changed by further decision of this order-generating kind. It also provides an overall, if often implicit, cultural frame of reference within which judges, for example, decide questions of what is to count as ‘relevant’, ‘purposeful’ and ‘appropriate’ concerning the issues in question. A judge or legislator who develops a decisionist orientation: ‘implements the good law of the correctly recognised political situation by means of a personal decision’ (Schmitt 2005a: 3). A judge does not have to consciously approve of welfare state capitalism in order to interpretively construct a sense of what is ‘appropriate’ in this case in terms of the concrete policy implications of alternative possible judgements. However, the very determination of the meaning and scope of ‘appropriateness’ itself remains inevitably a matter for subjective decision. The second main element of Schmitt’s decisionist critique of normativism claims that legal decisions made as an integral part of the application of legal norms to concrete situations, contribute an essential part of the concrete meaning of these norms themselves. In defiance of the liberal constitutionalist emphasis on the separation of powers, the judicial application of law is quasi-legislative. Whilst Kelsen’s focus stops at the borders of legal normativity, Schmitt, by contrast, recognises that: ‘a norm never posits itself’ (Schmitt 1928, ch I, 9). Indeed, their realisation requires an interpretive act involving a concrete decision as to when they should be applied, how and for what specific reasons. Each of these three elements, the when, how and why aspects, necessarily requires judges to choose between at least two plausible alternative interpretations of questions of fact and law. Their preference for any one option over others is controlled by neither the objective meaning of the norms themselves, nor associated meta-norms, such as rules of statutory interpretation. Earlier forms of positivism, such as Bentham, Hobbes and even Austin, acknowledged the sheer subjectivity involved in coming to a decision that X and not Y will now be the legal position. Yet, despite their clear empirical validity, Kelsenian normativism has rejected these earlier insights, leading to a dehumanised account of law (Schmitt 2005a: 29, 33, 47). Against normativism and its fixation upon the logic of impersonal rules, Schmittian decisionism restores a sense of the person-centred character of the legal process, its distinctly ‘human dimension’. As with theological doctrine, a specific institutionalised group has to decide on what, in the specific context in question, the law is. The colloquialism that law-enforcers simply are ‘the law’ as its personal embodiment and agency of practical realisation, makes good sense from Schmitt’s qualified decisionist perspective, even though it reverses the formalistic presumptions of Kelsenian normativism. For Schmittian legal theory, the sources of judicial decisions are not general norms as such awaiting an essentially mechanical application. Instead, it is – at most – the ad hoc and situation-specific validation of one

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selective reinterpretation of such norms forming part of a concrete decision. The latter’s potential applicability to other contexts always remains to be determined afresh. Attempts by normativists to eliminate the ‘command’ element of law in favour of conceptions of objectively valid and impersonal legal norms, thus involve straightforward misrepresentation. Despite some occasionally exaggerated formulations, Schmittian legal theory certainly incorporates the insights of decisionism, but without itself becoming wholly decisionistic. On the contrary, it gives equal priority to a sociological interpretation of the concrete and comparatively stable institutional orders that both enable, but also transcend, every moment of singular legal decision (Schmitt 2005a: 2–4). Schmitt’s realism, which bears comparison with rule sceptical schools of jurisprudence, recognises the fact-driven character of the legal process as a dimension of the legal process ignored by Kelsenian positivism and legal formalism more generally. The act of applying legal norms necessarily imports into the legal process a selective interpretation of the legal significance of the immediate circumstances of the case in hand, its ‘material facts’. Schmitt’s central claim against normativism is that such selective interpretations of ‘materially relevant’ facts and circumstances are a necessary ingredient of the recipe of every conceivable form of legal analysis and act of norm-application. In this sense, all law is contextspecific or situational law. This fact-driven dimension, in turn, stems from the necessity of ‘judging a concrete fact concretely even though what is given as a standard for the judgement is only a legal principle in its general universality. Thus a transformation takes place every time’ (Schmitt 2005a: 31). Schmitt’s variation of legal realism aims to show how substantive cultural and policy values mediate this aspect of the legal process, including concrete judicial reinterpretations of points of fact and law. Judicial reinterpretations of both facts and doctrinal norms are constitutive, not declarative, in nature in that, for all practical purposes, they transform their legal implications. Indeed from a Schmittian perspective, it is significant that entire areas of legal doctrine, such as the tort of negligence, have arisen from incremental acts of judicial law-making, itself founded upon a senior judge’s decision not to follow an established rule that – at the time – no general principle of negligence existed. Indeed, Schmitt argues that those who study and practice law inevitably have to deal with cases that, for perfectly sound legal reasons, are: [A]part from and at times against the law [understood in positivistnormativist terms]; yet are defined as correct; yet they can hardly be said to be ‘in accordance with the sources’ – whether or not covered by precedents of the highest courts and their constant practice. (Schmitt 1912: 77–8)

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It follows that judicial rule ‘violation’ operates as a key source for many ultimately ‘valid’ rules and principles. In turn, this suggests that normatively ‘invalid’ decisions can routinely become ‘good law’ but not as a result of strict doctrinal analysis and the clarification of the meaning and scope of abstract norms, but rather through the routine exertion of relations of both authority and interpretative-institutional power within the judicial system – a point discussed further below. Schmittian legal theory endorses the socio-legal emphasis on studying law-in-action, including law enforcement. Kelsenian normativism radically divorces normative doctrinal analysis from socio-legal studies of law in action, including the descriptive elucidation of norms purely as such, from social scientific studies of the application and enforcement of law (Schmitt 2005a: 21). Kelsen’s early legal theory, whose focus falls on how best to interpret a body of given legal doctrine, that is ‘law in books’, creates a sharp divide between the study of positive norms and the real-life processes of society (Kelsen 1922). In turn, this exclusive focus on ‘what is the law’ prohibits by implication jurisprudential studies of law’s creation, selective application (and non-enforcement) and practical effectiveness, or ‘law in action’. Such socio-legal themes fall outside the scope of a pure theory of law because the latter must fully respect the normative/empirical opposition (Kelsen 1911: 407–12). Kelsen states in his Staatsbegriff that, for his exclusively normative legal science: ‘Certainly, it is not inconsequential whether and to what extent this ‘ought’-validity becomes an is-effect … But this connection … is of no consequence for the essence of the state’ (Kelsen 1968: 83–4 translated in Caldwell 1997: 94). By contrast, a Schmittian model of law questions and, in part, rejects this and associated either/or dichotomies as a basis for conducting theoretical analysis of law (Schmitt 2005a: 42, 45). Every case of the determination of the meaning of a legal norm contains, within itself, the following proviso: ‘in the context of this concrete judicial reinterpretation of factual circumstances, and given the likely individual or wider policy effects of any alternative judicial interpretation, X norm is to be understood as Y not Z’. Another ingredient of the proposed Schmittian conception of law is the operation of discretion, the discretionary element that forms an integral part of decisionism. Schmitt notes the irony that liberal normativist attempts to ignore this quality of the practical reality of legal systems by focusing exclusively upon the meaning and scope of legal norms, becomes counterproductive (McCormick 1997: 221). This personal element of coming to an understanding through acts of reinterpretation cannot be fully accounted for by reference to the meaning and implications of given legal norms. It certainly exceeds any slot-machine model of legal decisionmaking as the near-mechanical application of established doctrinal rules to self-evidently given material facts (McCormick 1997: 207, 221). Clearly, an appropriately programmed and well-maintained drinks machine can

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reliably apply simple rules concerning the required pre-payment for dispensing, say, coffee. However, by virtue of the interpretative and discretionary legal decision-making, nature of it is entirely different in that it is mediated by the subjectivity, even the personality, of whoever is making the determinations. Hence there is, for Schmitt, no compelling evidence that such decision-making takes the form of an exclusively rule-driven ‘objective’ (in the dualistic sense of ‘non-subjective’) exercise lacking any necessary ‘human dimension’. Formal legal norms can neither define nor apply themselves. Against Kelsenian normativism, it is doubtful whether it is ever possible to identify with certainty a single correct and indisputable interpretation of relevant points of law, material facts and the implications of the former for the latter, and vice versa. Authoritative textbooks contain numerous examples of how senior judges have transcended prevailing interpretations of established doctrinal rules. Over time, such normatively ‘invalid’ decisions frequently becomes judicially accepted by the judiciary as valid, with the result that norms extend or contract in their meaning and scope without the legislature’s intervention. Whilst Kelsenian normativism focuses on the legislature as a source of new law, the Schmittian approach recognises judicial interpretation and reinterpretation of case law as a vital source. As a result, Schmitt’s interpretive approach conceives sovereignty in broader terms to embrace all forms of de facto law-making, even those that arise through low level acts of selective law enforcement. For example, if senior police officers, supported by prosecutors, magistrates and judges, adopted a ‘zero-tolerance’ policy for kerb-crawling in residential areas, then this – for all practical purposes – constitutes a significant change in the relevant legal position, an articulation of their micro-sovereignty of discretion (Salter and Twist 2007). Schmitt offers an alternative account of the possibility of judges making legal valid decisions that transcends the agenda of normativist legal theory. Extending Max Weber’s sociology of law, his approach focuses upon on the contingent, interpretative dimensions of judicial culture.18 It follows from the earlier points that the judge’s role must be redefined as neither that of an automaton, nor that of a free-wheeling legislator inventing new laws out of nothing as irrationalistic and nihilistic approaches insist (Schmitt 2005a: 42, 45). Instead, this role is best understood as a transcending mediation of both these otherwise one-sided alternatives (Schmitt 1912: 86; McCormick 1997: 211). The Schmittian alternative attempts to give both sides of this

18 See Gary Ulmen, Politischer Mehrwert: Eine Studie iiber Max Weber und Carl Schmitt (Weinheim: VCH Acta humaniora, 1991).

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debate their due as partial half-truths without reducing his conception of legal decision-making to either. Schmitt’s quasi-phenomenological model of the judicial role set itself the task of providing a realistic account of the interpretation and application of law in terms that makes sense to, and is recognisable by, those who are directly involved in legal practice. It thus looks for ‘an interest aimed at the reality of legal practice’ (Schmitt 1912: vi). His proposed criteria introduces interdisciplinary social scientific questions regarding the study of professional cultures that aims to be more realistic and grounded in empirical practices than normativist-positivist alternatives. This is because it is rooted in the implicit structures of our lived experience of law in action, which is generally recognisable as such by members of legal culture. To retain institutional, even constitutional, legitimacy, judges must, according to Schmitt, securing the appearance of ‘legal specificity’. In turn, this requires their practical observance of a limited range of broadly predictable judicial interpretations of prior legal norms treated (at least rhetorically) as authoritative. Broad compliance provides limits upon the operation of unrestrained judicial subjectivity and the adequacy of a wholly decisionist form of legal theory (Schmitt 2005a: 2–4). Indeed, Schmitt’s references to the benchmark of how a typical ‘other judge’ would typically decide the points of law arising from the case in hand, is a formulae designed to optimise whatever possibilities for legal determinacy and comparative certainty are, in practice, available. It does so by ruling out unpredictable, surprising or idiosyncratic forms of decision-making (Schmitt 1912: 79). Furthermore, the fact that a legal system succeeds in generating a definite decision that at least temporarily resolves an outstanding doctrinal issue, is as important as its predictability. The practical difficulties stemming from legal uncertainty stem as much from the avoidance of the judicial resolution of outstanding doctrinal issues. This is because existing norms provide no credible answer (Schmitt 1912: 49–55). For Schmit, the mediation of judges’ subjectivity by the culture of prevailing concrete orders means that judicial decisions cannot be analysed as if they were expressions of a purely individualised and inwardly private forms of subjectivity: Here it is expressly denied that the individual judge, regardless of his convictions, can make a correct decision contrary to law. Nor can the strongest sense of justice, as such, displace the statute as the standard of correctness. What is decisive is always the entire judicial practice that grounds the foreseeability and predictability of decisions, and thus legal specificity … the statute’s authority must be maintained. (Schmitt 1912: 113–14, 77–8)

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Schmittian legal theory provides a culturally relativist account of the possibility of legal decisions appearing valid for all practical purposes. This approach recognises that the norms embodied in statutes and associated doctrine always remain subject to ongoing processes of potentially openended judicial reinterpretation. A judicial decision can be recognised as legally correct if, but only if, it broadly harmonises with the currently shared values of a judicial cultural tradition. This requires judges not to simply announce a winner but instead to provide express and distinctly juridical reasons for why the decision has to be the way it is. That is, to provide what currently passes as a credible account of why it is correct in the present legal situation (Schmitt 1912: 65–9). It is these ‘reasons for the decision’, which must be drawn from, and generally harmonise with, the prevailing judicial culture’s current range of expectations as to ‘appropriate’ judicial practice. Furthermore, any such harmonisation must take place to the extent that a fully socialised and competent member of judicial culture would, at this time and under current circumstances, find the decision broadly acceptable at, for example, intuitive, pragmatic, emotional and/or policy levels. Another lesson Schmittian legal theory draws from the instructive failure of Kelsen legal positivism is the need to supply an alternative contextual, that is extra-normative, account of the possibility of legal valid decisions exhibiting a measure of only limited determinacy and predictability. In a sharp negation of the formalism of legal positivism, the latter’s form for form’s sake, the sources of any measures of identifiable predictability and coherence in the operation of law are more commonly extra-normative. They stem from the fact that senior judges tend to possess similar, even relatively homogeneous, social and educational backgrounds, and a common professional orientation, resulting in a broadly shared understanding of the nature and proper purpose of law (Schmitt 1912). Indeed for Schmitt, the only realistic criteria for determining the validity of a judge’s decisions is: whether his or her judgement falls within the scope of what another, albeit hypothetical and ‘typical’, colleague is likely to consider as legitimate; that is, as falling within the broad range of possible outcomes generated by a judge acting appropriately by current sub-cultural standards of ‘judicious behaviour’ (Schmitt 1912: 71–9). Any measure of judicial objectivity is consensually (re)constructed, and hence entirely a culturally relative matter defined by the imperfect force of social convention. The perceived ‘acceptability’ of such official decisions is clearly possible even where it is not possible to justify them by reference to normative doctrinal criteria: ‘[A] judicial decision is correct today if it may be assumed that “another judge” would have decided in the same way. Here, “another judge” refers to the empirical type of the modern, legally learned lawyer’ (Schmitt 1912: 71). Indeed, Schmitt insists that his reference to ‘another judge’ as a criterion for the validity of a judicial decision is not a purely idealised claim or value-judgement. Instead, it remains a strictly empirical

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experiential contention, for which the terms ‘typical’ or ‘average’ judge could be easily substituted. He claims: ‘the “other judge” is the normal, legally cultivated judge, where the word “normal” is used in a quantitativeaverage sense, not describing an ideal type, not qualitative and teleological’ (Schmitt 1912: 79). In short, Schmitt argues along cultural relativist lines that the answer to the question of what is to count as a valid legal decision is whatever a community of judges in a particular culture could be expected to agree upon in a similar case. Such an agreement ought then to be adopted as a guideline for a judge’s particular opinion in a given case (Schmitt 1912: 71–9, 86; Caldwell 1997, 52–3; McCormick 1998: 441). Of course, jurists need to recognise that there may be different interpretations as to expectations of ‘judicial appropriateness’, and where the borderline between central, borderline and unacceptable reasons is interpreted to lie. However, for Schmitt, such expectations will still possess an overarching level of commonality, an overlapping level of broad, if imperfect, consensus of a widely followed convention. This typically remains sufficient to enable experienced judges who are fluent in familiar rhetorical rational­ isations/explanations of legal decisions oriented to making their decisions appeal-proof, which culturally pass for acceptable explanations, to avoid accusations of extreme subjective caprice, or – to use a common law metaphor – ‘palm tree justice’, if they so choose (Schmitt 1912: 71–2, 116–18). Here, Rasch’s clearly expressed and concise commentary, which tackles the practicality of deploying such internal cultural standards (‘norms’ in a sociological sense) to correct possible misunderstandings of Schmitt’s claims, merits extensive quotation: As a judge, one decides a case with a sidelong glance at the way one assumes another judge would also decide. The other judge in question is an empirically real judge, not an ideal construct (for that would duplicate the gesture of subsumption that Schmitt aims to avoid), but we do not determine what that other judge would do by polling the other’s opinion. In asserting that our decision would also have been made by another practising judge, we are not engaged in a socio­logical or a mass-psychological exercise. Rather, our act remains normative. (Rasch 1994: 101) Equally, it is possible for judges to produce examples of law reform regarding not so much the content of legal norms but the types of reasoning deployed to justify the decision by, for example, admitting an unusually wide range of expect witnesses regarding the concrete policy consequences of alternative decisions. In such a case, Schmitt maintains whilst the decision itself may be entirely predictable and unremarkable, the innovative elements concerns the rationale given to support its validity:

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The reference to ‘another judge’ as an empirical type is only an expression for the constitutive meaning of a claim of legal certainty with regard to the question of a decision’s correctness. Thus a judge who wishes to decide correctly does not need to codify, so to speak, the views of other judges beforehand and then subsume … Rather, he needs to ensure that his decision corresponds to actual practice and, should he deviate from a prevailing opinion, to always do so with such perspicuous arguments that his deviation lies in the realm of predictability and calculability. Thus, under certain circumstances, the reasons for making a decision can have, practically speaking, a creative meaning. (Schmitt 1912: 78) It follows that a judge who was the first to decide that a new general legal category and associated remedies existed, such as liability for negligent acts, cannot be accused of making an invalid legal decision. Such a judgement cannot necessarily be invalidated simply because it clearly went beyond a positivist analysis of the implications of prior legal norms. According to Schmitt, the main proviso is that such acts of creative transcendence through judicial law-making must be recognisable as potentially valid in principle in terms of both their form and content. In short, for Schmitt a legal decision remains valid if the shared culture of fellow judges, the judiciary understood as a concrete institutional order, is able to interpret it as an instance of a genuinely judicial act irrespective of its compliance or violation of Kelsenian imperatives. His early embrace of conventionalism, and later concrete order thinking, alleviates the possibility that Schmittian theory exaggerates legal indeterminacy owing to its domination by an unqualified decisionism, and generate the problems associated with American Critical Legal Studies for instance (Scheuerman 1999: ch 1). It also draws attention to the sources of more predictable judicial assumptions that account for empirically ascertainable elements of continuity and stability both within, but also across, succeeding generations of judges. Clearly, the distinctly institutional and cultural source of such decision-making remains outside a legal positivist definition of law as a closed and hierarchical system of formal norms. There are specific methodological considerations concerning the conduct of legal research that stem from this comparative expansion of the conception of ‘law’ relative to academic legal research. In particular, a Schmittian model of legal studies can no longer define itself as a distinct and singular discipline, a ‘stand-alone’ academic subject basking in the reflected glory of ‘legal methods’ of doctrinal analysis, and proud institutional status within universities as a distinct ‘faculty’. Instead, a Schmittian approach to law requires legal researchers to deploy and integrate distinctly interdisciplinary methods, including those drawn from the humanities and social sciences.

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Finally, the orientation of Schmittian legal theory is, contrary to Kelsenian positivism, overtly political. With respect to legal norms, Kelsen maintained their validity is independent of their being recognised as valid either cognitively or ethically (Kelsen 1911: 53–5). In turn, evidence of such ‘objectivity’ contrasts markedly with how different people, who remain entangled within the subjectivity of their own specific moral, ideological and/or religious value-judgements, or even the scholarly orientation of natural law, believe it ‘ought to be’. The question of which legal norms were valid is different in kind from an ethical or practical evaluation of what the law ought to be, and what is ‘just law’. Those jurists who blur this is/ought distinction are engaging not in objective legal science but subjective political judgement (Kelsen 1911: 11). However, from a Schmittian perspective, the belief in an ideology-free process of rule-identification and application, or academic research into law, is entirely illusory. Indeed, the very attempt to depoliticise, and thereby neutralise, legal studies by reference to notions of ‘impartiality’, ‘neutrality’ or a ‘value-free legal science’, which grounds itself exclusively upon ‘positive norms’, is itself deeply ideological, and in that sense intensely political (Schmitt 2008a: 63–4). For jurists, there is no escaping the logic of the political, least of all by reference to scientific or other forms of ‘neutrality’. Indeed, Schmitt insists that there can be no middle ground between: [P]rincipled value neutrality of the functionalist system of legality, and the principled value emphasis of the substantive constitutional guarantees based on specific commitments. … whoever intends to remain neutral has already decided in favour of neutrality. Value assertion and value neutrality are mutually exclusive. Compared with a seriously intended value assertion and affirmation, conscientious value neutrality means a denial of values. (Schmitt 2004a: 47) All jurisprudence is essentially partisan in a political sense, whether openly so, or, in the case of liberal positivism, strategically deceptive. Its words are polemical weapons supportive of projected friends and offensive actions against perceived enemies. Finally, it is implicit in the earlier points that a Schmittian conception of law rejects the Kelsenian imperative, rooted in a formalism which abstracts legal form from social content, to separate law from politics (Schmitt 2005a: 15, 21; McCormick 1997: 207, 215). The object of legal studies cannot be divorced from ‘the political’ because the former both presupposes and exemplifies the latter. Even at the conceptual level, the idea of the sovereign state inevitably presupposes that of the political, specifically the politics of sovereign power (Schmitt 1996a: 19). The vital task of identifying and explaining that which conditions the very possibility of positive legal norms cannot be dismissed as merely searching

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for what ‘lies behind the law’. Instead, the challenge here is to discover the prior enabling conditions that explain, for instance, how it is that the institutions of the legal system are now operating as they currently are. For Schmitt, such preconditions, which include a socio-legal analysis of how law regulates the workings and subdivisions of the modern constitutional state, are part of the academic discipline and institutional practices of law itself. The fact that these are arbitrarily excluded as somehow ‘extra-scientific’ and non-rational by Kelsen’s methodological postulates reflects negatively only upon these postulates themselves. On the other hand, Schmitt’s rejection of legal formalism is not to be confused with a negation of any legal analysis of form per se. It is not a question of replacing form for form’s sake with substantive content for content’s sake, as if the latter can be realised without any type of form (McCormick 1997: 219–20). Kelsen takes his normativism to its extreme when he claims that legal science is not concerned with relations of substantive power, real effective governance, and extra-judicial authority. This is because these phenomena belong to the extra-normative and excluded causal-empirical realm of ‘what is’ (Kelsen 1911: 226–7, 396–7). Schmittian legal theory, by contrast, recognises the ongoing, and perhaps inevitable, mediation of law by politics and geopolitics. Indeed, Schmitt berates Kelsenian positivism for its failure to recognise the key role of ‘a social-psychological power complex’ (Schmitt 2005a: 19). His social science orientation, which draws heavily upon Max Weber’s sociology of law to which early editions of Political Theology were dedicated, contrasts markedly with a key Kelsenian idea. Namely, that law is a stand-alone academic discipline whose study centres around the technical and formalistic analysis of the contents of abstract legal norms arranged in a hierarchy, and resting on a purely hypothetical ‘basic norm’ (Schmitt 2005a: 28; Ulmen 1991: 20–1, 178; McCormick 1997: 207–8). Whilst law is clearly related to questions of ‘hierarchy’, contrary to Kelsenian positivism it is not essentially a hierarchy of pure and formal norms that is central for a Schmittian approach. Instead, it is rather a hierarchy of institutional and jurisdictional competences and relations of both power and authority. The role of law in the reiteration of asymmetrical power relations integral to a hierarchy of specific persons, groups and instances, and patterns of domination stemming from these, thus remains a central topic for Schmittian jurisprudence. Furthermore, the ‘validity’ of a legal norm is less a matter of scientific verification than it is of authority. This is because such norms can only become valid where they have been promulgated by an authoritative act: that is, a concrete decision articulating a specific and order-creating political will. In relation to constitutional norms, Schmitt claims that ‘when the power and authority of the constituent power, whose decision the constitution rests on, is recognized’, a constitution is ‘legitimate’. He then describes power as something ‘necessarily real’, whereas ‘authority’ suggests ‘continuity’ and tradition. Furthermore: ‘in

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every state, power and authority coexist and depend on each other’ (Schmitt 1928, 75, 87; Scheuerman 1996: 307–8).19 Against Kelsen, and normativism more generally, Schmitt maintains the question of the validity of a legal judgement cannot be detached from a range of pragmatic and policy oriented factors. These include its relative degree of effectiveness in achieving specified or assumed public policy goals. Here, questions of legitimacy and good governance can refer to the efficacy of a particular set of political power holders, and/or decisionmakers, in achieving their specific political and other purposes, and in ways that meet prevailing procedural imperatives. Here, Schmitt poses questions of constitutional legitimacy and validity in ways that recognise the importance of policy questions relating to sovereign power and the effective realisation of practical authority. Schmitt thus rejects Kelsen’s radical distinction between an empirical analysis of political power and legal analysis defined in purely normativist terms. This is because such a juxtaposition cannot even begin to make sense of the inherently coercive and power-soaked character of law, let alone provide a satisfying account of the political dynamics of constitutionmaking. Only if legal scholarship acknowledges that, for instance, a constitution gains its validity on the basis of a specific political decision in favour of one form of governance over its various alternatives, can we begin to conceive of it as a unified, hierarchically ordered whole. As a matter of political realities and dominant values, some constitutional clauses must undoubtedly be recognised as more vital than others, even though this is not expressly stated within constitutional documents (Schmitt 1928). It follows, perhaps, that legal theory needs to address the nature, functions and operations of a range of legal institutions, including their personnel hierarchies. It needs to acknowledge how these are both equipped with a spectrum of different competences and, on that basis, interact within an overall division of responsibilities with other state bodies, including the executive and legislature. Schmittian oriented legal research must, therefore, consider including on its agenda substantive sociological questions concerning the empirical working of relations of state power and authority at play not only within but also between a range of institutional practices. Schmitt’s realistic recognition of structured inequalities of power and authority should not be confused with their normative endorsement (cf McCormick 1997: 218). These structured differentiations include relatively ‘lower’ and ‘superior’ level courts located at the base and apex of an

19 For a critical analysis of Schmitt’s claims on this point that nevertheless accepts aspects of his critique of Kelsen, see Erich Voegelin, ‘Die Verfassungslehre von Carl Schmitt’ (1931) 11 Zeitschrift fur Offentliches Recht.

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institutional hierarchy. Here, different institutional levels are entrusted with varying degrees of comparative authority, and the capacity, that is, the institutional power, to overturn on appeal the decisions of ‘lower’ courts and judges by substituting their own interpretations of points of law. Legal theory needs to recognise the institutional dynamics involved in how a doctrinally ‘valid’ decision of a lower court can become an ‘invalid’ finding whenever a higher court so determines. Yet such ‘validity’ can then be restored with renewed institutional potency if this appeal decision is itself reversed following a further appeal to, say, the highest domestic court. Of course, this process continues ‘downstream’ of the original case, as it were, as court decisions, reinterpreted as ‘precedents’, are then distinguished, doubted, followed and expanded upon. The old-school practice of junior law librarians placing little stickers on law reports stating ‘affirmed in subsequent case X’, ‘distinguished in case Y’, bear material testimony to this truth-by-authority process. In short, and following both Hobbes and Schmitt, it is clearly a system of institutional authority not normative truth-in-the-abstract, which determines the validity of doctrinal legal interpretations. It follows that the primary instances of hierarchy that legal researchers need to study is not that of legal norms, but the interaction between higher and subordinate institutions. It is questions of power and authority, as much as normative validity, that concretely determines real-life legal outcomes. In Schmitt’s model of law is, at least in part, forged through a critique of Kelsenian normativism, and gives particular emphasis to precisely those elements that the latter discounts or otherwise suppresses. These include the mediation of law by the political, the centrality for jurisprudence of empirical studies of law in action, including concrete studies of law enforcement, and the unavoidable role of discretionary forms of decisionmaking. In addition, a Schmittian approach is distinctly inter­disciplinary in its orientation. It combines political, Weberian sociological and philosophical analysis of law. The latter is addressed as a socio-political phenomena shaped by relations of power and institutional authority, and subjected to an array of rhetorical and ideological practices of legitimation of various kinds. Schmitt’s interdisciplinary approach is also deeply interpretive, or ‘hermeneutical’, in that it insists that all meaningful encounters with legal phenomena are necessarily mediated by the contents of a traditional cultural framework of categories, assumptions and mythical and ideological beliefs of various kinds, many of which remain implicit and operate in an unacknowledged manner. For Schmitt, following Hobbes, legal theory needs to recognise that it is the power of authority, not the demonstrable truth of legal propositions addressed by a normativist legal science, that primarily determines legal outcomes. Rather than reducing the study of law to a supposedly discrete realm of paper rules and principles contained primarily in law reports, statute books

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and expert commentaries on the meaning and scope of legal norms in the abstract, Schmitt’s focus falls upon ‘law in action’. That is, law as an institutional practice governed by historically shifting relations of power and authority, and exerting a range of specific effects upon different sectors of society, including particular sectors of state activity.

Conclusion This chapter has discussed the significance of the key terms and ideas of its title for a distinctly Schmittian approach to modern law. It has clarified the mediation of our experience of law by ‘the political’, understood as a form of association in which there is a definition and differentiation of friends, foes and comparative neutrals. The political, in the sense, is not itself one domain amongst many others, such as economics or ethics. Instead, it can arise within law as much as any other social field. The covert and express ‘politics of law’ is thus part of law itself, and a central topic for legal scholarship. Politics, understood as the medium in which conflicts between rival ideological collective agendas of comparative friends and enemies take place, obviously enters into the law-making and law-reform processes. But, in the form of typically unacknowledged cultural assumptions and ideological prejudices, politics also operates within the judicial reinterpretation of the meaning and implications of both questions of facts and points of law, as well as their relationship to each other. The majority of this chapter has addressed the related theme of law as ideology, particularly how the ideologies of liberal constitutionalism tend to project a depoliticised model of ‘legality’. We have seen how Schmitt claims that, when closely examined, the apparent credibility of this model breaks down. This is because a series of difficulties and contradictions come to the surface whenever it is subjected to a closer and more critical examination. He suggests that liberal ideologies project an unduly narrow conception of law, and hence legal scholarship: one which lacks the insights available from contextual analysis. In addition, Schmitt claims that such ideologies fail to recognise the essentially interpretative, or ‘hermeneutical’, nature of the legal enterprise in which questions of the significance and implications of both law and fact have to be identified not as objectively ‘given’ (as positive), but rather as ongoing interpretative constructs. Such ideologies generally exaggerate the ‘determinacy’ of legal norms at the expense of a realistic grasp of the crucial and inevitable role of discretion within the legal process, including the question of who decides and upon what concrete basis. This has critical implications for the credibility of liberalism’s ideological interpretation of the nature of the judicial role and, in particular, the remarkably ideological politics of depoliticising the role of judges.

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Schmittian analysis addresses these particular ideological projections of the nature of law and legal process to expose more general contradictions in liberalism’s ‘depoliticisation agendas’, including within their specifically ‘jurisprudential’ expressions, such as Kelsenian legal positivism. Indeed, we have seen how Schmitt extended his critique of liberal constitutional ideologies to include the operation of ‘liberal cosmopolitan’ ideologies and the ‘ideology of humanity’ within international law as distinct variants upon liberalism more generally. Schmitt’s more positive, if distinctly illiberal and broadly Hobbesian model of law as an expression of power and authority, provides a possible antidote to some of the difficulties his critique has exposed. It does so by addressing a number of the material and socio-legal dimensions that, on Schmitt’s account, liberal ideologies typically need to exclude precisely in order to vindicate, and then give a spurious impression of legitimacy for, their own approach. Even the brief outline of his alternative account makes the distinctly ideological nature of liberal projections clearer. Numerous interpretations and transformations belong to the nature of the mythical images; continuous metamorphoses, in nova formae, are in fact sure signs of their vividness and effectiveness. … a sense of deeper mythical perception was surely effective in all the great political disputes of the European peoples. … ideas and distinctions are political weapons. … our question … is directed at ascertaining the influence of the political myth as an arbitrary historical force. … No clear chain of thought can stand up against the force of genuine, mythic images. There is only one question that such myths elicit, and that is: Does its path in the overall march of political destiny develop into good or evil, right or wrong? (Carl Schmitt 1996c: 7, 10, 18, 26, 81)

Part II

Schmitt on the role and analysis of myths and counter-myths

Myth, for Schmitt, is the de-historicized and incontestable core of human knowledge. It is stronger than knowledge not only because it operates intuitively rather than intellectually, but, most importantly, because it can no longer be proven true or false, right or wrong. The power of myth is neither rational nor rooted in any epistemological principles whatsoever. On the contrary: epistemological principles are rooted in myth. For historical knowledge always arrives on the scene too late and after the fact. Such knowledge is simply unavailable to those who live through a time of profound change, precisely because this change necessarily alters the epistemological framework by which a given society produces knowledge in the first place. (Strathausen 2010: 22)

Introduction David Pan and Russell Berman identify a ‘mythic-theological-cultural dimension’ situated ‘at the heart’ of Schmitt’s work (Pan and Berman 2008: 3).20 Arguably, Schmitt’s model of myth is primarily focused upon modern political myths and counter-myths. These he interprets as deep-rooted, often revealing and sometimes legendary aspects of diverse cultural traditions and subcultures to which, in various ways, we all belong. To some extent, an analysis of Schmitt’s discussion of myth has to work inductively, from the bottom up as it were, by relying upon and integrating the implications of a series of diverse case studies. Schmitt published an article on Sorel – ‘Die Politische Theorie des Mythos’ (1923 in Schmitt 1940: 9–18) – which focused upon the political theories of myths, parts of which were later incorporated verbatim into the

20  See David Pan and Russell A. Berman, ‘Introduction’ (Spring 2008) 142 Telos 3.

final chapter of his work on the Crisis of Parliamentary Democracy (Schmitt 1988; Bottici 2007: 227). His study of Hobbes’ Leviathan also focuses upon the historical after-life of a specific and, arguably, poorly chosen political mythic symbol (Schmitt 1996c). In addition, his Hamlet or Hecuba (Schmitt 2009) contains some highly provocative analyses of a specific literary myth. Finally, Schmitt’s Roman Catholicism and Political Form takes a nuanced quasisocial scientific view of the impact of Catholic mythic beliefs in the Antichrist and the Last Judgement (Schmitt 1996b). Despite these diverse contributions contained within writings spanning four decades, his publications contain no express ‘theory of myth’ making generalised claims. This Part II seeks to clarify and integrate these different strands in an express manner not attempted by Schmitt himself. His extensive works regularly address, or at least presuppose, specific political myths, but without developing a clear general theory of ‘the mythical’ akin to that of ‘the political’ (cf Schmitt 1996a). We cannot, therefore, identify a sharply focused and sustained analysis of myth akin to his substantive studies of changing conceptions of sovereignty, the political, and the status of interstate war, exceptional states or partisan warfare. Despite this, a contemporary Schmittian model of law must take seriously how these writings discuss and illustrate the theme of myth and distinctions between different types of mythic legends, and thereby begin to remedy a possible gap in Schmitt’s own work. The aim is to creatively reconstruct a ‘Schmittian’ approach to political myths of various kinds, many of which could be relevant to constitutional and international law scholarship. Such a reconstruction has to give particular attention to his most generic reflections in his study of Hamlet. It is also likely to neither draw out unambiguous distinctions, nor map out precise relations between the concept of ‘the mythical’, and related and possibly overlapping conceptions of ideology, rhetoric and aesthetic representation more generally (Pan 2009a: 99). It may be difficult to resolve whether this restriction is best viewed as either a major limitation of Schmitt’s analysis, or simply a reflection that when appropriately understood these phenomena are themselves complexly intertwined in various context-specific ways resistant to clear-cut distinctions and theoretical generalisation. There is evidence that Schmitt’s interpretation of myths, and political myths in particular, are attracting increased levels of scholarly attention, and not only within scholarship devoted to this author (Gadamer 1989: 497–9; Gourgouris 1993: 96–114 and 2000; McCormick 1994 and 1997: ch 2; Meier 1998: xii, 88 n 56, 143–6; Seitzer 1998; Groh 1998; Müller 1999a,b and 2003: 87; Voigt 2001; Dean 2004 and 2006; Pan 2008 and 2009a).21 In

21  For a more general discussion of the development of myth within German thought, see Williamson 2004.

other words, it is not just Schmitt scholars who have recognised some insights and challenges in Schmitt’s analysis of political myth. Gourgouris provides us with one explanation for this linked to combating the effects of liberal constitutional depoliticisation and neutralisation of politics, which on Schmitt’s diagnosis has become endemic to late modernity: My hunch is that myth, which I take for granted as a performative concept that occupies the terrain where the theatrical and the political coincide, has much to offer in the process of disintegrating the selfoccultation of the political. Because Schmitt has made some influential remarks regarding the political, because he was himself an exemplary political creature (with all conceivable ramifications of this notion), and also because he understood the importance of the mythical (though, from my standpoint, in terms marred by his political decisions and his theologically motivated limits), he does emerge as an intriguing interlocutor in this process. Hence, in this essay, articulating the ‘concept of the mythical’ becomes possible expressly on account of Schmitt’. (Gourgouris 2000: 1488). Amongst scholars, there is a growing sensibility that, without feeling any need to make excuses, willingly resorts to that combination of knowledge, imagination, political imagery and myth informing many politically diverse traditions of scholarship within international relations, and thus international law. These range from realism, geopolitics and fascism, through to both Karl Renner’s Marxism and contemporary poststructuralism. Hence, it is only to be expected that a combination of related conceptions of this kind – including political myths tied to the rhetorical mobilisation towards specific goals – can be detected within Schmitt’s analysis of political myths (Dean 2006: 3). In addition, Schmitt’s selfcharacterisation via literary and mythic figures, such as Melville’s Benito Cerano, may have assisted this process (Schmitt 2003: 161; Klickovic 1968; Sombart 1991: 261–94; Tregenza 2002; Dean 2006; O’Beebee 2006; Bottici 2007: 15, 48–50, 227–35, 242–5l; Hell 2009c; Tralau 2010). Following Ellen Kennedy, O’Beebee has recently suggested that questions of myth feature not only in Schmitt’s literary style, but also as a substantive topic within Schmittian studies: ‘He is also the most literary political thinker of the twentieth century, one who allowed myth and fiction to shape his ideas about law to create a unique “political theology”, or, to use Ellen Kennedy term, a “political expressionism”’ (O’Beebee 2006: 113). O’Beebee further recognises that: ‘Current literary interest in Schmitt rests on his mythic approach to texts that makes them available to political readings’ (O’Beebee 2006: 115). Pan expands upon this point insofar as he, like Dean, recognises that Schmitt’s critique of ideological tendencies towards

depoliticisation, including aesthetic variants, addresses those institutionalsociological dimensions of myth related to questions of power and authority: Schmitt rejects the establishment of the autonomy of art in the bourgeois private sphere, not because of its elitism but because both the autonomy of art and the bourgeois private sphere provide the haven for ideas to develop independent of institutional control. He attempts to re-establish this control through his description of art ‘raised to the level of myth’. (Pan 1987: 156) Schmitt’s reflections on myths, or at least his use of this term, suggest a number of different assessments and differentiations of this phenomenon, including the distinction between ‘live’ and ‘dead’ myths. In relation to the idea of ‘Nomos’, understood as a form of collective ordering principle, Schmitt rejected the idea of ‘breathing artificial new life into dead myths …’ (Schmitt 2003: 69). The secondary literature contains diametrically opposed orientations towards Schmitt and political myths. Leyte, for instance, takes it as selfevident that Schmitt’s reliance upon mythic understandings places his Nomos work beyond the pale of scholarly analysis of a regular historical type (Leyte 2005: 289). Bosteels, another critic, suggests that Schmitt’s Nomos combines empirical with mythic historical narratives concerning elemental relations with the earth understood as ‘mother earth’. Allegedly, this risks obscuring, in a classic ideological manner, the all too real acts of violence that underlie the creation of new legal orders (Bosteels 2005: 302–3). Scheuerman, Wolin, McCormick and other leftist critics have assimilated Schmitt’s analysis of myth to the latter’s own myth-making, which is then interpreted as essentially an irrationalist, potentially fascistic move by a representative of political mythology (Wolin 1992; Scheuerman 2004). For example, McCormick devotes an entire chapter of his critical study of Schmitt to ‘Myth as Antidote to the “Age of Neutralisations”’ (McCormick 1997: ch 2). Here, he attempts, partly following Reinhard Hehring, to reveal a distinctly Nietzschean dimension to Schmitt’s alleged ‘political existentialism’. In particular, McCormick addresses Schmitt’s ‘existentialist’ critique of technical and technocratic thinking, whose value-neutral and instrumental rationality displays a mechanistic indifference to whether the ultimate result is a ‘poison gas or a silk blouse’ (Schmitt 1996c: 14). Allegedly, Schmitt conceptualises technocratic rationality in mythic terms as the work of the Antichrist, which McCormick then criticises for resorting to ‘mythically anti-Christian or pseudo-Christian language’, which effectively demonises such thinking as intrinsically satanic. Such myth-making embraces the friend/enemy concept of the political, and represents ‘a normatively bankrupt and politically dangerous discourse’ (McCormick

1997: 91). McCormick accuses Schmitt’s analysis of becoming counterproductive by succumbing ‘to the very instrumental rationality’ that he seeks to overcome (McCormick 1997: 92). Furthermore, allegedly: ‘The fact that Schmitt so often explicitly acknowledges the myth-making quality of his endeavour reveals the theoretical deficiency that defeats the promise of his critique of technology’ (McCormick 1997: 92). No citation is given for the former claim. It is certainly exaggerated. This is not least because Schmitt’s polemical deployment of certain political myths directly related to concrete situations would be self-defeating if it ever openly confessed to the mythic status of the claims being made. However, Schmitt’s critique is directed not against technology per se. It is directed against quasi-religious enthralment to a technocratic orientation towards technology. Contrary to McCormick, Schmitt is engaged in a critique of precisely that religious belief in technical ‘miracles’, of technocracy. Furthermore, Schmitt is the opposite of a conservative figure who laments, in a nostalgic way, the emergence of industrialisation, science and technology as destroyers of an earlier mythic golden age. He distances his critique of Enlightenment politics from both these romantic and organic types of conservatism by arguing that any viable state theory had to become fully juridically rational by articulating a ‘philosophy of concrete life’. Here, the emphasis falls upon the word ‘philosophy’, itself rich in rationalisticanalytical connotations (Schmitt 2005b: 15). On the other hand, McCormick may, perhaps, be on stronger ground when he insists that Schmitt identifies a mythical and quasi-religious dimension to a type of technocratic thinking which believes that technology provides an almost magical, even miraculous, type of solution to social problems (Schmitt 2003: 134; McCormick 1997: 100). However, McCormick’s wider thesis that Schmitt demonises such thinking as an expression of the Antichrist, is far less convincing. This is particularly insofar as his thesis almost assimilates Schmitt to Nietzsche despite the scarcity of Schmitt’s references to this writer. If readers examine in context the textual support offered for McCormick’s thesis, it appears flimsy. Whilst arguing that it is necessary to take seriously as a real historical force the various political myths directed against Catholicism, Schmitt actually states: There is an anti-Roman temper that has nourished the struggle against popery, Jesuitism and clericalism with a host of religious and political forces, that has impelled European history for centuries. Not only fanatic sectarians but whole generations of pious Protestants and GreekOrthodox Christians have seen in Rome the Antichrist or the Babylonian whore of the apocalypse. The mythical power of this image is deeper and stronger than any economic calculation; its after-effects long endure. Consider Gladstone, or Bismarck’s memoirs, wherein a nervous

uneasiness is evident whenever mysteriously intriguing Jesuits or prelates appear on the scene. Yet the emotional, one might even say mythical, arsenal of the Kulturkampf and the whole struggle against the Vaticanum, as well as the French separation of church and state, are harmless by comparison with Cromwell’s demonic rage. Since the eighteenth century, the argumentation has become ever more rationalistic or humanitarian, utilitarian and shallow. Only with an adherent of Russian orthodoxy, with Dostoevsky in his portrayal of the Grand Inquisitor, does the anti-Roman dread appear once again as a secular force. In all these various nuances and gradations there is always the lingering fear of the incomprehensible political power of Roman Catholicism. (Schmitt 1996c: 3) Schmitt’s analysis is attuned to questions of the implications of the power of mythic imagery and rhetoric as, for example, takes place during largescale political demonstrations and old-style trade union rallies and meetings. As such, it has an affinity with questions of ‘direct democracy’ unmediated by parliamentary ‘representation’. Those commentators who are committed to re-affirming the triumph of liberal parliamentarism over popular democracy may, for their own reasons, be already predisposed to dismiss a model of political myths developed within this framework as mere ‘populism’ or something worse. By contrast, others whose belief system prioritises democratic imperatives and values over those of liberal constitutionalism, and who are therefore receptive to questions of the ‘wellsprings’ of popular culture, may well find such criticism to be symptomatic of a particularly insidious and problematic type of anti-democratic elitism. A primary question for a Schmittian approach to political myths is: What does it implicitly mean for recipients of, and participants within, concrete cultural traditions related to the formation and reiteration of popular will, including law reform proposals as well as instances of popular literature, drama and cinema, to come to both accept and act upon mythic beliefs? And what is the range of possible political implications and ramifications of this connection between mythic beliefs and political forms of popular will in terms of, say, the perceived legitimacy of expressions of state authority and sovereignty? In what ways do popular myths originate as such by differentiating themselves from non-mythic figures of drama and tragedy? To what extent does the study of political myths open us up to an appreciation of the interactions and hybridisations of religious traditions and rival political cultures? These may concern, for example, a range of law reform issues relating to questions of the nature, purpose and scope of marriage, sexuality and the upbringing of children. If so, then to what extent are those who study such questions, and related issues of ‘culture wars’, familiar to contemporary American political culture, condemned,

perhaps against their will, to operate within the scholarly field of ‘political theology’? Schmitt insists upon the relevance of analysing how concrete historical realities intrude upon even literary myths, and thereby contribute in various ways to their obtaining mythic status, and the latter’s subsequent development. This theme, involving the study of mythic figures operating in the intersection of literature and politics (the literary qualities of politics as much as the politics of literature) will be developed further both in a later section devoted to Schmitt’s analysis of Hamlet – and in relation to Hobbes’ myth of the Leviathan. Addressed below is the idea of a polemical battle between political myths, more precisely the constitutional-political ramifications of specific mythic beliefs, where each can operate as both myth and counter-myth.

Chapter 3

Mobilising direct political action Sorel, myths and counter-myths

Schmitt suggests that contestation between myth-driven irrationalist movements can itself be conducted through the deliberate deployment of strategic counter-myths: ‘a matter of the direct intuitive contradiction of mythic images’. For instance, Mussolini’s fascism fought socialist myths with its own counter-mythic image of the revolutionary Marxist as a mere servant of a fearsome and distinctly Asiatic ‘Mongolian barbarian’ (Schmitt 2005b: 61–4, 75; Balakrishan 2000: 72–4). Schmitt also notes that reactionary counter-revolutionaries, such as Donoso-Cortes, sought to demonise the syndicalist Proudhon as: ‘an evil demon, a devil’, who responded in kind by likening his demoniser to a ‘fanatical Grand Inquisitor’ (Schmitt 2005b: 70). The nearest Schmitt’s writings come to a concerted analysis of modern forms of political myth-making and polemical counter-myths designed to offset their impact is found in The Crisis of Parliamentary Democracy (Schmitt 1988). Here, he develops elements of his own model of political myth partly through a sympathetic – if ultimately critical – discussion of George Sorel’s syndicalist theory. On Schmitt’s interpretation, Sorel draws creatively upon both the anarchist-syndicalist tradition of Proudhon, Bakunin and Bergson’s vitalist philosophy. In this way, he generates an interesting and illuminating theory of political myth that is free from the one-sided rationalism of Hegelian–Marxist dialectics. The latter is designed to inspire and mobilise ‘direct action’ against perceived national or class enemies, and indeed an entire economic system. Such political myths function to encourage participation in actions supposedly relevant to the big picture of great world historical dramas, and even metaphysical conflicts between primordial good and evil. These include decisive armed struggles, as well as particular formulas for allegedly attaining the status of a legendary figure whose epic way of life epitomises highly valued qualities as a symbolic and instructive role model. For Schmitt, such myth-driven forms of collective action remain deliberately unmediated by that which liberal constitutionalism defines as the ‘normal channels’ of engagements with parliamentary representatives, and related efforts to win over that abstraction termed ‘public opinion’:

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Its centre is a theory of myth that poses the starkest contradiction of absolute rationalism and its dictatorship, but at the same time because it is a theory of direct, active decision, it is an even more powerful contradiction to the relative rationalism of the whole complex that is grouped around conceptions such as ‘balancing,’ ‘public discussion,’ and ‘parliamentarism.’ The ability to act and the capacity for heroism, all world historical activities reside, according to Sorel, in the power of myth. Examples of such myths are the Greek’s conception of fame and of a great name, the expectation of the Last Judgement in ancient Christianity, the belief in ‘vertu’ and in revolutionary freedom during the French Revolution, and the national enthusiasm of the German war of liberation in 1813. (Schmitt 2005b: 68) Schmitt then notes how Sorel’s theory of myth as integral to political activism recognises that only by reference to the possession of supportive political mythic beliefs can it be determined whether or not a particular class, group or nation both possesses, and has now adequately readied itself for, a decisive historical mission. For example, by the start of the 20th century, neither Europe’s commercial middle classes nor the aristocracy possessed any inspirational myths comparable to the socialist belief in a decisive general strike as a prelude to the blossoming of an un-alienated – and thus communist – form of human existence. Hence, these class formations lacked sufficient motivation for taking the risks involved in direct political action against the socialist movement, which would, in practice, have been necessary to secure their political vision. As a result, these established and dominant social classes risked historical displacement by rival class-based movements that were so equipped and motivated, particularly the industrial working class, whose actions apparently stem ‘from a genuine life-instinct’ (Schmitt 2005b: 68). On Schmitt’s interpretation of Sorel, political myths spring from preexisting political commitments and, in turn, provide them with an additional focus and sufficient encouragement ‘for a decisive battle’. Both these elements operate at the intuitive experiential, rather than purely rational and cognitive levels. Episodes of ‘courageous struggles’ can, therefore, be combined into the symbolism and imagery of a mythic tradition of legendary acts, epic struggles and heroic figures, which contemporary followers are expected to respect, emulate and resolutely carry forward into the immediate future. In this way, the imagery of political myths gives concrete meaning and inspirational purpose to the lives of crusading political activists. Here, we could cite the place of the Tolpuddle Martyrs in British socialist and trade union mythology, and the original suffragettes in the feminist equivalent. Political myths play this rhetorical inspiration role in a manner that largely bypasses any perceived need to provide express justifications through

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purely intellectual debate concerning the cognitive implications of factual evidence and reflection. Myths bypass the familiar tendency towards ‘paralysis through analysis’, or the fraught connection of questions of theory and political practice from the side of disengaged theory alone. Yet, the identification of which social groups either possess or lack such vitalist and value-granting myths, together with a deep faith in specific mythic orientations, can itself be a cognitively important factor. This is particularly the case for those concerned with predicting and anticipating future directions of social conflict and willed political change. On Schmitt’s analysis, such importance persists despite the fact that it is largely irrelevant whether these beliefs are themselves rationally justifiable: In direct intuition, the enthusiastic mass creates a mythic image that pushes its energy forward and gives it the strength for martyrdom as well as the courage to use force. Only in this way can a nation or class become an engine of world history. Wherever this is lacking, no social and political power can remain standing, and no mechanical apparatus can build a dam if a new storm of historical life has broken loose. Accordingly it is all a matter of seeing correctly where this capacity for myth and this vital strength are really alive today. … Only the socialist masses of the industrial proletariat had a myth in which they believed, and this was the general strike. What the general strike really means today is much less important than the faith that binds the proletariat to it, the acts and sacrifices it inspires, and whether it might be able to produce a new morality. (Schmitt 2005b: 68–9) On Schmitt’s reading of Sorel myths gain their mobilising and lifeaffirming power from a type of faith deeply rooted in an unreflective interpretation of our immediate lived experiences: one which is broadly akin to religious faith: The proletariat must believe in the class struggle as a real battle, not as a slogan for parliamentary speeches … It must grasp this struggle as a life instinct, without academic construction, as the creator of a powerful myth in which it alone would find the courage for a decisive battle. (Schmitt 2005b: 70–1) On this interpretation, to be effective the socialist myth of a general strike overcoming capitalism at a decisive stroke must resist the temptation to degenerate into a utopian and rationalistic projection: one that is capable of practical realisation only through a dictatorship. Instead, it must take hold as a deeply-felt belief and commitment: ‘an expression of immediate

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life, often wild and barbaric, but never [unlike rationalistic dictatorships] systematically horrible and inhuman’ (Schmitt 2005b: 72). For Schmitt, there are a range of social scientific issues raised by the presence and analysis of political myths. For instance, how can one ascertain an empirically accurate order of rank between rival political myths? Does answering this question itself becomes a matter of exercising political judgement? Which social group’s myths are most likely to politically integrate their intended audience in an optimally effective manner? Is it the nationalist authoritarian myth of ‘one great nation’? Alternatively, should this title go to the messianic socialist myth of a future society oriented towards a class-based solidarity? It may sound paradoxical, but political myths that help make visible a sense of national identity previously presupposed but practically absent and invisible, also exhibit a silent and invisible dimension. They aspire to optimise the rhetorical effectiveness of a particular message and belief, and thereby enhance their mobilising power. Within Schmitt scholarship, critics have deployed the category of myth as a simple term of denigration in relation to Schmitt’s various positions, passing over in silence the more nuanced understandings and analyses contained in his own texts. Such criticisms are far from illuminating for present purposes. For instance, Scheuerman (1999), Wolin (1992) and McCormick (1994, 1997), have confined their discussions to the tension between myth and ‘direct action’ designed to implement its implications, and the implicit rationalistic assumptions legitimating parliamentary forms of democracy. They have viewed Schmitt’s analysis as a vitalist affirmation of the irrational with anti-democratic, even fascistic, tendencies. However, this stance not only unduly narrows the field of application but also risks confusing such initial distinctions with supposedly perennial dichotomies in a manner that Schmitt generally typically resists. It also confuses Schmitt’s analysis of the legitimacy crisis affecting parliamentarism with an all out frontal attack on democracy itself. The latter’s practices no longer live up to their own underlying institutional rationale and principles of law-making through open and rational discussion. Here, ‘dangerous’ socialist and fascist myths of ‘direct action’ have arisen to fill the resulting vacuum. This is itself a questionable myth because Schmitt’s Weimar works clearly presuppose the continued existence of at least a modified form of democratic constitutional governance of Germany. Hence, the Nazis’ practical displacement of this constitution in favour of a lawless and personal dictatorship destroyed the pertinence of much of Schmitt’s earlier public law and constitutional theory scholarship, leaving these studies in a position analogous to a carpenter in a world without wood (Schmitt 2005b: 22, 64). It would be disappointing if all Schmitt has to offer a theory of political myth are the points discussed immediately above, which in one sense do not

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add a great deal to the insights of Sorel. The weakness of his account lies in its lack of sustained historical analysis of any specific case studies, its reliance more on the force of assertion than expressly developed argumentation or evidence, and its dependency upon a series of unclarified assumptions concerning the selective cultural reception and (re)transmission of received political myths. Fortunately, these difficulties are at least addressed by his studies of Hobbes’ Leviathan and the mythic figure of Prince Hamlet discussed later in this book. Why – from a Schmittian perspective – does any theory of public law and politics have to take seriously the mythic images deployed, for example, to represent the state? Must any theory of political myth address and, even temporarily, inhabit the realm of the non-rational: one that includes subjective sentiment, affiliations and extra-cognitive belief, and then confront openly irrationalist models of political transformation? We can begin to answer these questions through case studies of the distinctly modern, political myths mentioned above in the sub-heading, starting with myths associated with parliamentary forms of democracy followed by an analysis of Hobbes’ Leviathan.

Chapter 4

Myths of parliamentarism

If its domination became widely appreciated and its implications recognised, then this could then debunk, and thus de-legitimate, the underlying myth of parliamentarism as the pre-eminent means for democratic self-governance through open deliberation by the people’s elected representatives. Schmitt implies that constitutional analysis thus needs to both see through and look behind the mythic images of liberal constitutionalism by subjecting the actual practice of decision-making to disenchanted scrutiny. This would address the implications of the silent power of specific vested interests to influence – if not always entirely control – the political process. This is combined with the near-autonomy of a majority government in relation to a legislature comprised almost exclusively of representatives controlled, in practice, by powerful party machines. According to Schmitt, these material factors, undergirded and disguised by mythic beliefs, render Parliamentary proceedings little more than ‘an antechamber’ to the corridors of power controlled by society’s ‘invisible rulers’. Contradicting belief in parliamentary governance taking place through free and open discussion, the practice of modern government is – if anything – far more secretive and subject to extended arcane practices than ever before. From Schmitt’s perspective, there is thus a need for a close and critical comparison between the contents of these mythic beliefs and empirically ascertainable practices of governance, followed by a close sociological study of the nature of the ideological functions performed by such myths. For Schmitt, myths of parliamentary sovereignty and ‘government by discussion’ are major topics for a realistic form of constitutional analysis insofar as they can be shown to effectively shield the operation of concealed extra-parliamentary power (Schmitt 1988: 7). Schmitt contrasts the normative expectations expressed and implied by a continuing myth of a discursively achieved ‘rational balance’ within legislative debate, with what he claims has become the comparatively debased reality of law-making within a mass democracy dominated by party political machines (Schmitt 1988: 67–72). Parliament has degenerated in a

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mere ‘show case’ for party political contests and a training ground for careerist politicians anxious to build up their own power base (Schmitt 1928: 325). Through an evocative image, Schmitt notes that the legitimations of parliamentarism in ‘deliberative’ terms – themselves predicated on the essentially independent judgement of individual legislators – cannot even be articulated, at least not without immediately raising doubts as to their continued pertinence and overall credibility. Yet, the rhetorical effectiveness of these myths lies precisely in their capacity to forestall such critical reflection. Although political myths typically deploy striking imagery, emblems and symbolism to both convey and naturalise their messages as self-evident truths, Schmitt’s graphic rhetoric reverses this strategy: Many norms of contemporary parliamentary law, above all provisions concerning the independence of the representatives and the openness of sessions, function as a result like a superfluous decoration, useless and even embarrassing, as though someone has painted the radiator of a modern central heating system with red flames in order to give the appearance of a blazing fire. (Schmitt 1988: 6) In making this criticism, Schmitt is not committed to accepting the mythic image of parliamentary deliberation as true, in the sense of historically accurate. Instead, he claims only that his account of the myth’s contents and implications, which draws upon classic intellectual-ideological sources of liberal constitutionalism, is a historically accurate reconstruction. Schmitt suggests that an empirically appropriate characterisation of political myths formulated as part of a specific constitutional rationale can, in principle, provide jurists with a resource for conducting a strictly ‘immanent’ form of institutional criticism: one that contrasts the mythic rationale with evidence of the institutional reality, and thereby exposes a range of possible discrepancies (Pearson and Salter 1999). Given this context, a Schmittian form of constitutional scholarship subjects to a decidedly critical form of analysis the mythic claim that independent representatives of ‘the people’ meet and debate divergent ideas concerning policies, and thereby decide matters of state on the basis of the outcomes of rational argumentation, counter-argument and persuasion. This myth has become, to a greater or lesser extent, an enduring legend. Because it plays a specific function in terms of the legitimation of concrete power relations, it merits recognition as a distinctly political myth. One goal of Schmitt’s public law analysis of belief in parliamentarism is to formulate an analytical model capable of explaining how a constitutional rationale of this liberal type has attained a mythical status. Another is to assess its actual and potential concrete implications for questions of the legitimacy of the legislation and constitutional processes.

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It is, therefore, necessary to address both the political consequences of continued belief in this myth of parliamentarism, and those that could follow if – as appears increasingly likely – it ever lost public credibility. Certainly, for Schmitt, the liberal constitutionalist’s claim that, in practice, ‘public opinion’ and ‘political will’ arise and become refined upon a purely rationalistic basis of open parliamentary debate, has become a ‘poor facade’. The credibility of such belief has become increasingly fragile, even to the point where the restatement of its underlying institutional rationale can appear more closely to resemble satire, than a realistic statement of empirically demonstrable constitutional realities (Schmitt 1988: 49–50). Indeed, for a realistic and empirically oriented form of constitutional analysis, any continuing belief in this institutional rationale must appear to non-believers largely as an act of mere rhetorical rationalisation. It represents, in a ‘hardly recognisable disguise’, neoliberal ideological commitments to free-market competition as a presumed material source of ultimate harmony in both prices and truth (Schmitt 1988: 6, 20, 34–5). However, if this ideological disguise is dropped to allow citizens to witness for themselves the sharp discrepancy between idealised, mythic representations and the day-to-day realities of the exercise of state power, then legitimacy issues, sometimes phrased in terms of ‘public confidence’, are likely to rise to the surface. Where such subversion occurs, the belief in the liberal myth of open parliamentary discussion as the vital source of legitimate decision-making and legislation, must ‘in the face of this reality … suffer a terrible disillusionment’ (Schmitt 1988: 50). In addition, the widespread belief that in Britain the constituents of a government minister are ‘represented’, if need be against this government’s interests, by ‘their’ MP is – on a Schmittian model – potentially mythical. Outside of small local party elites, such ‘representatives’ may, in practice, actually represent government interests to the constituents, not vice versa. By creating a separate and unaccountable political class claiming ‘higher qualities not easily obtained by the people’, liberal parliamentary democracies replicate a two-tier model of citizenship resembling, albeit in a disguised form, monarchical and aristocratic rule. In turn, this defies and renders mythical the dominant liberal constitutionalist principle of ‘substantive equality’ between all citizens (government members included) on which – according to Schmitt – the practice of democracy itself depends (Schmitt 2008b: 264). A government wedded to liberal principles such as parliamentarism, which its members and those of an associated ‘political class’ alone deem to be absolute (despite never been popularly affirmed through a democratic mass vote), inevitably violates democratic principles of both ‘equal rights’ and popular self-rule. In these ways, the pretensions of parliamentarism to embody democracy become routinely falsified and potentially widely perceived as a self-serving pretence founded upon mythic claims. In that

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respect, liberal forms of governance more closely approximates to an elected dictatorship than an emphatic popular democracy. Schmitt also distances himself from liberal myths of constitutional ‘historical progress’ towards a preconceived and redemptive destination of historical evolution. The fully developed liberal state is ideologically portrayed as the end of history, a culmination and fulfilment of human destiny. He does so by drawing a direct comparison between the current status of parliamentarism and the mythic and symbolic rationale for monarchy as a mode of governance. Schmitt further argues that a strong belief in the pre-capitalist ‘principle of honour’, which once exerted a strong hold over medieval political thinking, has now become anachronistic. Within states such as the United Kingdom, where, from a strictly rationalist perspective grounded in first principles, the institution of monarchy endures beyond its ‘sell by date’, it endures only as a historical curiosity. As such, it remains justifiable only in strictly pragmatic terms, such as an antiquarian but still profitable tourist attraction. Following the collapse in general credibility of those supportive mythic beliefs that underpin them, such constitutional arrangements must face abolition whenever their purely instrumental justifications, possibly identified by a utilitarian form of costbenefit analysis, no longer apply (Schmitt 1988: 8). In making this comparison between beliefs supportive of monarchy and parliamentarism, Schmitt suggests that although some version of parliamentary government may still be justified pragmatically in such instrumental terms, perhaps as the ‘lesser evil’, the credibility of the original mythic foundations have long since collapsed. The most appropriate mode of legal analysis of such foundations is historical. Schmitt argues that prior to the emergence of mass democracy centred around party political machines related to polarised social class formations (a pro-labour political party, a pro-capitalist business party etc), the myths and individualistic ideologies of the ‘intellectual world of liberalism’, including belief in ‘government by discussion’, remained largely credible, at least to relevant elites. They could, when temporarily and strategically aligned with essentially incompatible democratic principles and associated political ideals, operate as effective myths widely understood as embodying ‘fundamental truths’ concerning the nature of legitimate government as such (Schmitt 1988: 17, 36). However, during the early decades of the 20th century, that ideological world of liberal beliefs, distinctions and assumptions constituting the public sphere was largely displaced by mass democracy. As a result, its underlying myths – including the idea that the only possible alternative to liberal parliamentary democracy must be an authoritarian and hence non-democratic dictatorship – could only endure with everdecreasing credibility, akin to the contemporary status of the divine right of monarchs (Schmitt 1988: 8–9; 22, 50). Schmitt insists: ‘If in the actual

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circumstances of parliamentary business, openness and discussion have become an empty and trivial formality, then parliament, as it developed in the 19th century, has also lost its previous foundation and its meaning’ (Schmitt 1988: 50). In short, the mythic image of legislation emerging from a rational process of free and open debate centred upon parliament, has now for historically ascertainable reasons become outdated, and – like the British House of Lords – persists purely as an anachronism. It is necessary to further consider the 19th-century alignment of liberalism with democratic ideas and movements, and the resulting conception of ‘liberal democracy’ centred on myths of parliamentarism, as a marriage of temporary convenience between incompatible parties. For example, liberalism locates sovereignty in law and parliament, and subordinates both to its own model of civil and political rights treated as absolute and universal. Democracy, by contrast, is committed to ‘popular sovereignty’, that is, government of, for and by the people. It thus rejects the various checks and balances, including constitutional review and ‘inviolable’ human rights instruments, designed to impede government actions in pursuit of a populist democratic mandate. Twentieth-century historical developments, particularly the rise of mass democracy and the modern welfare state, have exposed the fundamental discrepancy between liberalism and democracy. In turn, this has further challenged the myths of parliamentary democracy. These developments now require convinced democrats to recognise the essentially undemocratic nature of many traditional liberal doctrines and institutions, including parliament, which appear designed to dilute substantive exercises of sovereign power. We also need to appreciate that the practice of ‘liberal democracy: “entails the triumph of the former term over the latter. Democrats must then reject the mythic beliefs that underpin liberalism by advancing more democratic alternatives, including cautious experiments in “direct democracy”, such as institutionalised referenda and enhanced powers to a democratically elected president’ (Seitzer 1998: 293–8). For Schmitt, the idea of democracy clashes in particular with liberalism’s earlier anti-democratic myth of government by parliamentary discussion. Once this contradiction becomes increasingly blatant and ‘striking’, convinced democrats, who are typically oriented towards collectivist principles and concrete political goals, tend to lose faith in the latter myth – and its associated privatised electoral procedures. More precisely, liberal myths, which were once identified as fundamental truths, have become widely discredited, now appearing as little more than the ideological products of liberalism’s own entrenched prejudices, reasoning processes and assumptions. In a context of stark and ‘inescapable contradiction’ between the individualistic myths of liberalism and democratic principles including majority rule, collectivist political goals and practices centred

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around the formation and realisation of political will: ‘No cosmopolitan rhetoric can prevent or eliminate it’ (Schmitt 1988: 17). Indeed, Schmitt suggests that committed democrats who recognise this ideological dimension now have little choice but to break their earlier, purely tactical alliance with liberal individualism, stemming back to the mid-18th and 19th centuries, by adopting institutional solutions closer to uncompromised principles of direct democracy: The stronger the power of democratic feeling, the more certain is the awareness that democracy is something other than a registration system for secret ballots. Compared to a democracy that is direct, not only in the technical sense but also in a vital sense, parliament appears an artificial machinery, produced by liberal reasoning ... (Schmitt 1988: 17) For Schmitt, the principles and procedures of direct democracy overlap with the typical collective decision-making of many trade union movements, including regular referendum, a show of hands in public rallies, and the direct election of Presidential leaders with authoritarian powers (Schmitt 1988: 16–17). Indeed, Schmitt also implies that a weak and internally divided government caught up with in-fighting between party factions, who are primarily seeking career enhancement and the spoils of political office, will also risk losing democratic legitimacy. The vital point here is that this remains true even where it complies perfectly with the expectations of liberal parliamentarism. Schmitt notes the tendency for parliaments to be composed of politicians for whom politics is ‘the dispute business of a rather dubious class of persons’ (Schmitt 1988: 4). This is because such a government disconnects itself from the underlying popular sentiment and culture upon which its democratic credentials depend. Where ruling or oppositional politicians define politics as about themselves alone, or as primarily a professional ‘career opportunity’ for self-promotion, then – whatever the quality and effectiveness of government policies – the credibility of democratic myths are already in a state of decline. The same point holds true wherever a factionalised government presents itself as incapable, in principle, of taking decisive action in the ‘national interest’ (as widely defined by the nation itself), or of avoiding making ‘difficult decisions’ for fear of antagonising special interests, including their own party donors, paymasters and de facto commercial sponsors. From a Schmittian perspective, the familiar cliché of a formerly ruling political party seeking to ‘go back to its roots’ to ‘rebuild’ following its failure in a general election, is an appropriate metaphorical image. However, this is true only if these roots are not themselves defined purely in terms of a declining cadre of loyal party activists and affiliated organisations.

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Schmitt’s claims that the rise of modern democracy, underpinned by mythic beliefs in a singular and distinct demos understood as ‘the people’, has exposed the myths of parliamentarism for what they really are. It has forced convinced democrats to reject their temporary alliance with liberalism. In part, the next section continues this theme by discussing the relationship between a spcific political myth, that of Leviathan, and the rise of individualistic, liberal forms of modernity, including the founding private/public distinction.

Chapter 5

Leviathan A political myth misfired?

Schmitt argues: ‘No illustration of or quotation about a theory of state has engendered so provocative an image as that of the Leviathan; it has become more like a mythical symbol fraught with inscrutable meaning’ (Schmitt 1996b: 5). His detailed 1938 study of this political myth was translated only in 1996. It has recently attracted an increasing measure of scholarly attention from a variety of perspectives, albeit of variable quality (Gottfried 1990; McCormick 1997; Palaver 2002; Tregenza 2002; Kahn 2003; Aravamudan 2005; Lorberbaum 2007). There is a connection here with the topics of a previous section. Schmitt’s Weimar-era analysis of Sorel’s view of political myth – expressive of Marxist as well as fascist revolutionary politics – can be usefully set against the former’s 1938 analysis of how Hobbes resorted to the myth of leviathan as the ‘failure of a political symbol’ for state sovereignty. In part, the political victories of Lenin, Mussolini and Hitler, as well as the defeat of the Weimar Republic, are explicable in terms of an unfortunate failure of the notion of sovereignty inscribed into Hobbes’ myth of leviathan compared to the relative success of those deployed by Communist and Fascist revolutionaries. Indeed, with respect to Marxism, Aravamudan argues that: For Schmitt the history of sovereignty is inextricable from the history of its failure as a myth, and also a lamentation of its actual failure to sustain the Weimar Republic. Schmitt’s unhappiness with the semantic excess of the Leviathan myth that undermines its use for political authoritarianism is exacerbated by what he considers the efficaciousness of the Sorelian myth of the general strike for inspiring the Marxist imaginary. (Aravamudan 2005: 637) Within parts of continental Europe from 1917 to 1937, the myths of revolutionary Marxism and fascism had emerged as powerful forces. By contrast, the authoritarian myths supportive of a statist form of political conservatism articulated by Hobbes’ leviathan image, and its namesake

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monograph, had failed to counteract these developments; and thus became eclipsed. The cultural and interpretative reasons for this ‘failure’, which presupposes an encoded critique of such revolutionary movements as dangerously sectarian and divisive forces, appear to animate Schmitt’s study of Hobbes’ Leviathan (Schmitt 1996b). Indeed, Kahn notes that, for Schmitt: ‘Hobbes’s myth of the Leviathan state that terrifies the proud was not enough to counteract Hobbes’ other message about the state as a mechanism or artefact – the message that the state was man-made, mortal, and in the service of particular interests ...’ (Kahn 2003: 76).

Hobbes as a case study of the importance of studying political myth-making Schmitt’s study contains a sustained and often interesting discussion of how Hobbes deployed mythic symbols as a creative supplement to his more general use of rationalistic, even scientific, argumentation (Schmitt 1996b: 5–12, 19, 26, 49, 52, 62–3, 74, 81–4, 94–5). With respect to either the creators of myth, or those who receive and believe in them, he expressly states that his primary question is located not primarily, or exclusively, at the level of individual psychology, or biography. Instead, it is articulated within a theoretical framework that requires a widely credible myth of the nature of a nation state, with the latter interpreted as an overarching collective force. That is, a secular god-like figure of a sovereign-representative-person, the totality of which is more than the sum of his parts. Given the difficult historical conditions of 17th-century England under which Hobbes was writing, this image of sovereignty was required to respond to the collective needs of his fellow citizens. These included a requirement for a strong and higher public authority sufficient to end a fearful type of internal conflict and resulting insecurities. Within a 17th-century English historical context, Hobbes re-affirmed the rationale of an absolutist type of state. Yet, according to Schmitt, the type of a myth required for such original and contextual affirmation of a need for state-guaranteed security and protection must also be supplemented by concrete mythic images. These must prove themselves adequate to the later historical development of the extensive machinery of public sector operations. Such complementary mythology is not, however, that of a ‘total’, or ‘quantitative’, type of state which, in keeping with the imperatives of a totalitarian regime, dissipates its power by seeking in vain to intervene everywhere and regulate everything. Instead, a mythic figure of sovereignty as something only relatively transcendent needs to arise in response to a cultural tradition’s already constituted need for collective security. The latter is itself an integral lifeelement of every citizen: one that generally both pre-dates and post-dates the existence of each. The resulting myth, conditioned by the context of its

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emergence, permanently risks becoming anachronistic following developments with this cultural tradition. These include the rise of a semiautonomous form of technology and processes of industrialisation radiating potentially totalitarian implications, which largely evade systems of control: The sovereign-representative-person is much more than the sum total of all the participating particular wills. To be sure, the accumulated anguish of individuals who fear for their lives brings about this new power, but it affirms rather than creates this new god. To this extent the new god is transcendent vis-à-vis all contractual partners of the covenant and vis-à-vis the sum total, obviously (though) only in a juristic and not in a metaphysical sense. The sovereign-representative person cannot thus delay the complete mechanization of the state. It is only a timebound expression of the baroque idea of representation of the seventeenth century, of absolutism, not of ‘totalism’. (Schmitt 1996b: 26) Schmitt claims it is particularly important to recognise the mythic qualities of the leviathan symbol that adorns the frontispiece of this work. He implies a need to emulate the approach of social anthropology, particularly its receptiveness to questions of plural significations. It is necessary to address the historical accumulation of multiple cultural meanings and associations drawn from a number of distinct genres, each of which exhibits its own strengths, limitations and intensities: In the long history of political theories, … this leviathan is the strongest and most powerful image … in the mythic sense of a secular image of battle. … As a symbol of a political unity, the leviathan is … not just any ‘corpus’ or just any kind of beast. It is an image from the Hebrew Bible, one garbed in the course of many centuries in mythical, theological and cabbalistic meanings. (Schmitt 1996b: 5–6) As Dean notes, ‘more than most thinkers, Schmitt knows the emotional charge that can electrify symbol and myth’ (2006: 13). For his part, Schmitt suggests, for example, that the Jewish use of this symbol expresses ‘political myths of the most astonishing kind and by documents often fraught with downright magical intensity’ (1996b: 8). Hobbes, by contrast, appears to approach the leviathan myth in a far less serious even cavalier manner. There has been some speculation as to the nature of the politics behind Schmitt’s own concern for the mythic dimension of Hobbes’ work, a question that no Schmittian could regard as unproblematic. Lorberbaum, for example, suggests that Schmitt’s analysis forms part of his wider critique of the allegedly self-destructive qualities of liberal constitutionalism,

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particularly its mechanistic conception of the modern state. Within a social context of constitutional disintegration, this ideological conception prompts a need for a counter-myth to reassert an overarching sense of political unity: Schmitt’s Weimar project sought mythic inspiration from Leviathan. Myth was the imaginary mindset to inculcate so as to overcome the mechanistic emasculation of the state. Schmitt explored the utility of evoking the monstrous power of the mythic beast as an expression of reviving state power to impose its order in the face of the threatened anarchic potential of German society. But Schmitt realized – as is indeed implied by the subtitle of his book on Hobbes – that the thrust of Hobbes’ political philosophy was not mythic. For those seeking mythic inspiration, Hobbes’ book was an example of the ‘failure of a political symbol.’ The employment of a mythic symbol, however powerful, is not sufficient to constitute a commitment to develop myth as a shared mindset of a polity. (Lorberbaum 2007: 98) Schmitt’s work on Hobbes thus regards the study of the formation, operation and trajectory of myths as a key scholarly pursuit: one that is not confined to literature but rather extends into cultural history and the social sciences more generally. This explains why he expressly praises Vico who, without himself becoming either a mythic figure or a ‘producer of myths’, nevertheless produced an incisive and insightful account of ‘the force and meaning of myth for his era’. Schmitt suggests that a historically informed mode of analysis is vital. Vico achieved his successes by ‘overcoming the historical blindness of Cartesian scientific principles’ and by ‘advancing a new historical understanding’. As a result, Schmitt praises Vico for becoming ‘a true and great mythologist’, albeit in the sense of a social scientist and cultural historian of such myths (Schmitt 1996b: 84). In one sense, Schmitt’s study of Hobbes’ mythic image of Leviathan can be viewed as an admirer’s effort to emulate Vico’s achievements through a sober historical reconstruction identifying the force and meaning of myth for later eras. Schmitt’s advocacy and partial adoption of a historically informed social scientific stance explains why, in principle, he welcomes Hobbes’ willingness to invoke graphic images to both capture and convey key aspects of his political theory of the state. Indeed, he notes that Hobbes ‘had the courage to see the unity of political commonwealth in the image of a powerful monster that combined god, man, animal and machine. Hobbes used this image because he considered it to be an impressive symbol’ (Schmitt 1996b: 81). And yet part of Schmitt’s critique of Hobbes is that despite the latter’s acute political realism, he failed to think through the possible implications of the leviathan image he had both unleashed and popularised with his

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book of this name: ‘Looked at closely, the sue of the leviathan to represent Hobbes’ theory of state is nothing other than a half-ironic literary idea born out of a fine sense of English humour’ (Schmitt 1996b: 94). For his part, Hobbes’ sparse references to the Leviathan figure include its use to depict the leader of a newly emerging modern state as a ‘mortal god’: one who imposes peace and political unity through popular recognition and respect for its institutional power and authority (Schmitt 1996b: 19). Schmitt thus implies that Hobbes’ resort to this mythical figure was unfortunately naïve and unreflective concerning not only these sociological factors, but also its ambiguities and divergent historical associations. Indeed, he claims that Hobbes failed to address the significance of his depiction of the leviathan myth for the ‘content and formulations of the book’ (Schmitt 1996b: 18). Apart from the frontispiece image and the book title page, Hobbes only mentions the word leviathan three times, and then with little reflective analysis concerning its range of possible meanings. This cavalier neglect and disregard is problematic. It grossly underestimates the rhetorical power exerted by interpretations and reinterpretations of this symbolic image over the subsequent phases of the cultural reception of Hobbes’ central theoretical claims (Schmitt 1996b: 19). Indeed, Schmitt claims: ‘He failed to realise, however, that in using this symbol he was conjuring up the invisible forces of an old ambiguous myth’. In particular, he did not sufficiently take into account this myth’s capacity to be repeatedly mobilised as a political weapon in unpredictable ways, including those subversive of Hobbes’ own substantial intellectual claims. Schmitt further implies that it is an unfortunate – if perhaps instructive – irony that such a pre-eminent political theorist as Hobbes could have remained so naïve concerning the power-politics central to mythic aspects of the cultural reception and reinterpretation of his own work. This is a neglected task that Hobbes has bequeathed us. However, for Schmitt, its fulfilment could help ensure that he did not ‘teach in vain’ (Schmitt 1996b: 85). On this issue, Hobbes’ unreflective naïveté concerning factors determining the subsequent impact of political myths represents both a theoretical and pragmatic failure. In response, Schmitt asserts the need for a more attentive, systematic and reflective approach. For his part, Schmitt seeks to correct Hobbes’ naïveté and omission by taking far more seriously his graphic depiction on the front cover of Leviathan. That is, an image of a sovereign figure poised above two fields of symbols signifying the unification of temporal and ecclesiastical powers under the authority of the modern state. Schmitt’s corrective work of supplementing Hobbes, which itself clearly operates within a broadly Hobbesian framework, aims to systematically compare the various associations attached to the idea of leviathan with Hobbes’ own goals.

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Correcting Hobbes: contrasting meanings of leviathan To realise his project as already discussed in outline, Schmitt’s 1938 study corrects Hobbes’ carelessness concerning the choice of political symbolism and whether leviathan is consistent with, or wholly counterproductive for, the realisation of his wider theoretical project. He does so by retracing the various Biblical and other associations of the leviathan as a ‘powerful mythical representation as a huge water animal ... as a ‘tremendous sea monster … sea dragon’. The latter has sometimes been depicted as caught up in a life and death struggle with the associated mythical symbol of the land monster behemoth, itself often culturally represented as a bull or elephant (Schmitt 1996b: 6). Schmitt’s specifically biblical analysis, which encompasses Isaiah (27:1), Psalms (74:14, 104:26) and Job (3:8), recognises the sheer historical diversity of leviathan’s mythic representations. These include its transformation from a serpent or dragon ‘representing a dangerous force to a downright foul fiend’ (Schmitt 1996b: 6). He argues that, as an authentic living myth, ‘a wealth’ of various reformulations of the leviathan have exhibited an enduring symbolic power transcending their original biblical context, including mythical depictions relating to the slaying of sea dragons. Drawing on the Old Testament, Schmitt shows leviathan to have been widely interpreted as a sea monster and a whale that vanquishes its land-based counterpart behemoth. Schmitt contrasts the Christian mythology of leviathan with that of Judaic Cabbalistic traditions. In particular, he retraces the transformation and mutation of the leviathan myth as Christian theologians and Jewish cabbalists interpreted and reinterpreted it during the Middle Ages. Whilst for Christians the leviathan symbolised the devil captured by the Cross, Cabbalists by contrast interpreted it as an essentially heathen symbol, participating in a tension between sea and land powers. Here, the sea-based leviathan appears as a symbol of heathen forces locked in a mortal combat with the land-based behemoth monster, neither of which are especially friendly to Jews (Schmitt 1996b: 8–9): ‘The latter [behemoth] tries to tear the leviathan apart with his horns, while the leviathan covers the behemoth’s mouth and nostrils with his fins and kills him in that way’. For Schmitt, this image is a ‘fine depiction’ of a naval blockade (Schmitt, 1996b: 9). What results stem from Schmitt’s reconstruction and comparison of contrasting associations of the leviathan myth? One is to highlight questions concerning their compatibility with a Hobbesian constitutional programme, a point discussed later. Another is to suggest that mythical images are subject to repeated reshaping, changed interpretations and reconfiguration by different cultural traditions in ways that reflect the latter’s distinct concerns and orientations.

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Schmitt’s reconstruction also corrects a serious omission in Hobbes’ Leviathan by addressing the many diverse and symbolic characteristics of his leviathan image. And yet throughout such diversity and the ‘chaotic abundance’ of leviathan’s cultural representations, there has remained a common core: a consistent reference to the sea and related maritime associations. For Schmitt, this is clear from its presence within scholastic and Lutheran theology as a ‘huge fish’ possessed by the devil, which is outwitted by God (Schmitt 1996b: 7–8). It is interesting to consider the extent to which this graphic imagery of a primordial clash between AngloAmerican maritime powers on the one hand, and both continental European and Asiatic land-based nations on the other, influenced both Schmitt’s critique of US imperialism, and his characterisation of the postwar Cold War conflict (Ulmen 1987a: 44; Dean 2004: 49). The plurality of accumulated and expanded associations and images that Schmitt highlights need not be interpreted as a negative phenomenon inherently destructive of a Hobbesian agenda. On the contrary, they provide evidence of leviathan’s particular resonance, rhetorical power and vitality as a political myth. Schmitt notes: ‘Numerous interpretations and transformations belong to the nature of the mythical images; continuous metamorphoses, in nova formae, are in fact sure signs of their vividness and effectiveness’ (Schmitt 1996b: 7). The question arises as to whether, in different epochs, such vital imagery operates to either support or subvert a Hobbesian agenda of statist conservativism. The answer is determined not by the form of the leviathan myth (the myth ‘as such’), but rather by the intuitive associations widely inspired by its particular shifting contents. The question of possible subversion is the theme of the next section.

The possibility of myth misfiring Following his preliminary analysis, Schmitt indicates that his central analytical question is whether Hobbes’ choice of leviathan as his ‘politicomythic image’ has stood the test of time? Can we conclude that this image has supported the goals of a Hobbesian programme concerning the preconditions for political unity and stability? Has it survived the various contests between contrasting, and sometimes incompatible, cultural associations, particularly the ‘Judeo-Christian destruction’ of such unity? Alternatively, from a Hobbesian perspective, including that broadly adopted by Schmitt himself, has this choice of mythic imagery proved especially problematic, an unfortunate and unpredicted misfire and ‘blowback’? For Schmitt, the possibility of a deployment of political myth turning counterproductive remains an almost inherent risk. A major issue for legal scholars resorting to such political myths in support of their contentions, is, according to Schmitt, that – like Pandora’s box – they can help conjure up forces, which once unleashed generate unpredictable and counterproductive

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outcomes. In turn, these may ultimately overshadow, even perhaps overpower, our appreciation of strictly cognitive aspects of their scholarly constitutional theories. Once launched, such symbols enter into a domain of politico-cultural contestation. Here, questions of validity are, for all practical purposes, typically governed largely by historically changing institutional patterns of authority and power relations. It follows that no writer can ever hope to predict these factors, let alone exercise complete control over them. It is not as if the choice of mythic imagery is analogous to making a financial investment based upon valid statistical evidence, and having already calculated the prospects of making a healthy financial return: When an author employs an image like that of leviathan, he enters a domain in which word and language are not mere counters that [like money] can be used to calculate worth and purchasing power. In this domain, mere ‘values’ do not ‘hold true’; whatever effectively govern are force and power, throne and master. (Schmitt 1996b: 81) Schmitt claims that Hobbes’ lack of reflection upon the choice of mythic depictions for state power has proved grossly detrimental to the project of his political and legal theory. The most familiar and obvious mythic representations of leviathan associated with the Christian tradition have certainly not advanced the cause of Hobbes’ overall constitutional theory; that is, the vital restoration of political unity within a state under a powerful leadership figure. Perhaps, if Hobbes had, like Vico, expressly studied the political role of specific myths, together with their changing pattern of contested cultural associations, he may have avoided this naïveté: In contrast [to Machiavelli], Hobbes is neither a mythologist nor a mythic figure. Only with the image of the leviathan did he approximate a myth. But it is precisely because of this image that he had spent his energies and failed in his endeavour to restore the natural unity. (Schmitt 1996b: 85) For Schmitt, Hobbes all too casual selection of the myth of leviathan sought to draw an association between the great biblical sea monster and the early modern national state. An implicit aim was to develop new imagery and icons apparently supportive of Hobbes’ wider argumentation concerning the post-medieval sovereign state and society more generally. The leviathan was supposed to operate as a symbol of a state newly equipped with modern qualities of national sovereignty, territorial borders containing the domestic relations and activities of a distinct nation centred politically around a capital city. This, for Schmitt, invokes a model of political symbols

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that emphasises their role as articulators of a specific ‘geo-mythology of power relations’ (Dean 2004: 49).

Leviathan as counterproductive? Having set out the implicit requirement of a political mythic symbol to further Hobbes’ overall project, Schmitt then considers whether his depiction of leviathan has proved adequate to this task. Is the history of Hobbes’ leviathan really that of the failure of political symbol? To have adequately harmonised with Hobbes’ constitutional theory, the associations of leviathan just discussed would have needed to rely upon, and be supplemented with, another less familiar and indeed ‘opposite interpretation’: one that is rooted in venerable Celtic and Saxon traditions. This minority tradition depicts the leviathan as a powerful, yet still protective, force. Hobbes failed to realise that this cluster of associations, limited to a less familiar tradition, were already on the wane. He did not anticipate that, over subsequent decades and centuries, a far more powerful tradition would exercise the dominant role in shaping what it is that the idea of a leviathan state signified. In short, Hobbes failed to demonstrate an appreciation of the implications of the interpretive points highlighted by Schmitt’s comparison of the leviathan myth’s various associations by devising a contextually appropriate graphic depiction of the state. One explanation for Hobbes’ difficulties may have been that he was caught up with the positivistic idea of producing an aesthetically denuded and mechanistic ‘science of politics’, in which mathematical and logical deduction plays the dominant role in constitutional reasoning. This meant that he grossly underrated those distinctly interpretative foundations of political understandings of the state that became prevalent in 17th-century England. In turn, these required a particularly receptive and qualitative understanding of the meaning and power of cultural symbols, images and mythic representations, especially those expressive of sovereign power. Hobbes’ careless picturing of leviathan as a large man-god, a human construct combining into a ‘mythical totality’, a huge man, beast and machine, increasingly clashed with its traditional association with a sea monster or dragon. In one sense, this need not have been a major problem if – but only if – a creative ‘fusion’ of the two associations had ever emerged. Indeed, Schmitt recognises that such mutations, hybridisations and transformations are common to the trajectory and fate of those political myths that manage to retain their credibility. However, and unfortunately for the fate of Hobbes’ project, this mutation never materialised (Schmitt 1996b: 19). Schmitt observes the irony of how the title of Hobbes’ Leviathan book and its namesake’s mythic associations to which Hobbes devoted so little thought, eventually became far better known and influential, albeit in the sense of a notorious scandal, than this book’s central scholarly claims.

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The resulting superficial familiarity has, in turn, resulted in the mythic image of leviathan providing a distorting lens through which Hobbes’ theoretical claims have been widely reinterpreted as those of a threatening totalitarian beast-state, and thereby allowed to exert their rhetorical impact upon successive generations. Thus, according to Schmitt: ‘the drawing on the title page has undoubtedly contributed to the powerful effect that the book evokes’ (Schmitt 1996b: 18). He further argues that this ultimately ill-chosen mythic depiction has created a distorted impression concerning the main thrust of Leviathan as a broad ranging constitutional treatise: In contrast to the later Behemoth, [Hobbes’ image of the Leviathan] does not depict an enemy; it shows a god that assures peace and security. Nor is it a political friend-myth. It is too horrible and terrifying for that. … Only the enormous striking power implicit in the image of the mythical beast has led to the mistaken notion that this is the central idea of Hobbes theory of state. (Schmitt 1996b: 94) Since Leviathan’s publication, Schmitt argues that these inherent tensions began to make themselves felt. The symbolism of this unfortunate image was unintentionally thrust into a political battle between competing myths and counter-myths conducted by rival parties: ‘wielding “indirect” power’ (Schmitt 1996b: 18–19). Within the cultural reception of Hobbes’ work as a whole, there has, in particular, been a primal conflict between the mythic figures of leviathan, defined by a less familiar Saxon tradition, as an ordercreating force embodied in the modern state as a supreme temporal power, and its mortal enemy, behemoth, with the latter portrayed as the monstrous embodiment of the unruly ‘state of nature’ (Schmitt 1996b: 21–2). Had this interpretation become the dominant one by displacing the Judaic–Christian alternative, then Hobbes’ work could have received a less distorted reception. Having clarified an understanding of leviathan as a politico-mythic device for ideological warfare loaded with emotive rhetorical associations, the next question Schmitt poses concerns this myth’s ongoing suitability for, and consistency with, Hobbes’ wider purposes. He implies that political myths can have no historically invariant core of ‘essential’ meaning. Instead, meaning is whatever meaning does, with the significance of leviathan determined by its changing patterns of usage within different contexts of origination and application. Indeed, Schmitt argues in a utilitarian-pragmatist manner that: ‘The meaning of the image of the leviathan seems to be limited to the utility of the concept’ (Schmitt 1996b: 22). Since such utility changes over time, the question of leviathan’s reception becomes vital.

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It follows that the question of the suitability of leviathan to work as an emblem for a Hobbesian programme of re-establishing political unity against those centrifugal forces exerted by rival indirect powers at war, including religious sectarian conflict, is complex. It certainly requires a historical reconstruction of its ‘fit’ with changing patterns of interpretation in different contexts. In turn, this raises the following questions, some of which take us beyond the scope of this chapter. Given changing patterns of use of this expression and its cultural associations, has the way Hobbes portrayed leviathan within the political theological dimension of his work proven to be optimally appropriate? Considering its role in a context heavily shaped by religious sensibilities and subsequent materialistic secular­ isations, has this depiction proved to be the most effective means to realise his wider aims and claims concerning the vindication of political unity and legitimate state authority? If not, then does the alleged failure of leviathan as a mythic symbol provide a credible rationale for Schmitt’s own study of Hobbes focusing so heavily upon the cultural dimension of the reception of this myth? To what extent is Schmitt’s approach to Hobbes’ Leviathan an effort to reinterpret and relocate this work within his own concerns for politico-theological, and thus symbolic, dimensions of politics? Gottfried’s interpretation is suggestive of some answers. He rightly emphasises that the central focus of the majority of Schmitt’s study falls upon Hobbes’ symbolism of the leviathan myth, its visual content and probable rhetorical impact relative to a range of contextually specific appropriations: Note that at least half of Schmitt’s own work on Leviathan deals precisely with this matter of symbolism. In his interpretive study, considerable attention is given to the frontispiece of the original edition. The depiction there of the sovereign poised above two fields of symbols representing temporal and ecclesiastical powers is intended to convey the majesty of the type of ruler being discussed. It is not Hobbes the geometrician but the political theologian who chose this illustration. … Hobbes, Schmitt maintains, tried to invest the state’s sovereign head with a religious mystique. The Leviathan is thus described as a ‘mortal god’ as well as a machine. (Gottfried 1990: 48–9) Gottfried further claims that this central focus upon a single political myth symbolising national sovereignty, a richly political iconography, has inspired later theorists. Barion, for example, has creatively developed its implications in terms of Hobbes’ desired reassignment of traditional papal authority to a secular head of a modern state:

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Aware of the medieval tendency to view temporal governments in a subordinate relationship to the Pope, Hobbes searched for political imagery that could be adapted to new political concepts or that was unrelated to a European Christian commonwealth. The canon law scholar Hans Barion, building on Schmitt’s work, sees Hobbes as restructuring medieval ecclesiastical symbols around the national sovereign. It was the attribute of power that medieval theologians typically associated with God. Canonists transferred this attribute gradually to the pope as the highest Christian prince. Hobbes transferred the same quality to the keeper of sovereign national authority, and he looked for the iconography, starting with the frontispiece of Leviathan, appropriate for this task of glorification. (Gottfried 1990: 49) For Schmitt, it is important to provide a sympathetic interpretation of Hobbes’ leviathan myth that is more in keeping with the implications of the ancient Saxon iconography presupposed by Hobbes. Such an interpretation is committed to the political implications of the ‘state of nature’ doctrine. It can help graphically illuminate the perilous condition of international law and relations. Here, different states confront each other in something that – given the particularistic and particularising conflictual tendencies of international politics – inevitably resembles a pre-legal or extra-legal ‘state of nature’, or proverbial law of the jungle: [I]n which tensions among leviathans are governed by insecure covenants. In its mixture of huge animal and huge machine, the images of the leviathan attain the highest level of mythic force. It strikes at the foundation that is indestructible in the relations between great powers. … Because the matter under consideration concerns the actual combat of elementary forces, the leviathans appears as huge animals. (Schmitt 1996b: 49) Perhaps not entirely in jest, Schmitt even toys with the idea that classic myths and fables concerning animals can help illuminate aspects of the foreign policy dealings of nation states. Acceptance of this contention would lead to the conclusion that neither public nor international lawyers can afford to disregard cultural-mythic sources of illumination (Schmitt 1996b: 49). For Schmitt, although recruited by theorists as agents for their own purposes, such mythic images can nevertheless operate seductively as double agents bent on the ultimate frustration of both these scholarly goals and those who promote them:

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His work was overshadowed by the leviathan, and all his clear intellectual constructions and arguments were overcome in the vortex created by the symbol he conjured up. … Whoever utilizes such images, easily glides into the role of a magician who summons forces that cannot be matched by his arm, his eye, or any other measure of his human ability. He runs the risk that instead of encountering an ally he will meet a heartless person demon who will deliver him into the hands of his enemies. Such was indeed the case with the leviathan conjured up by Hobbes. (Schmitt 1996b: 81-2) Schmitt repeatedly emphasises and elaborates upon this point when, for instance, he notes the potentially unplanned trajectory and unpredictable rhetorical impact of his leviathan myth. These are factors that must typically defy all our attempts to control them by means of strictly cognitive, linguistic or methodological devices. Dependent as they are upon visual rhetoric and emotive associations, together with the impact of prior beliefs at play within contexts of reception, there may be no controllable logic to the mythical. Hobbes ought, therefore, to have appreciated that by invoking an image as striking as that of his leviathan, and here even a one-dimensional image of this sea monster is sufficient to exert a powerful impact, he was unleashing a force set to have a potentially unpredictable, even counterproductive, impact capable of frustrating its intended function: Neither textually or etymologically, or in a conceptually systematic accuracy, or as a mainstream of ideo-historical logic, has the last word on where the political fate of a mythic image resides been written. The name of leviathan belongs to those mythical names that cannot be cited with impunity. His image is so powerful that even when it appears as a wall painting it creates a peculiar impact. The leviathan can unfold in unexpected historical situations and move in directions other than those plotted by its conjurer … The question of faith and miracle became its misfortune. (Schmitt 1996b: 53) Hobbes should have realised that the imagery of the Leviathan was always likely to turn counterproductive. Perhaps he could have anticipated that he was seeking to rely upon religious mythic sources which were widely interpreted to be subversive of the requirements for a positive reception of his theory. At the same time, the positivistic dimension of this theory sought to demystify constitutional power. Schmitt’s study suggests, in particular, that Hobbes’ deployment of a specific reinterpretation of this myth occurred at a time when its linguistichistorical usage as a symbol of the early modern state was undergoing

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profound cultural transformation (Schmitt 1996b: 22). In 1651, Hobbes launched his depiction of the leviathan into an English politico-cultural context about to be transformed from a land-based nation into that of a distinctly maritime power oriented towards a worldwide empire. As Dean recognises, Hobbes’ choice of mythic imagery can be read as an embryonic, and perhaps even unconscious, expression of a world about to be reshaped by an emerging maritime power: In this sense it might appear significant that an English political thinker – Hobbes – would seek to describe a settled land-based geography of the state by the symbol of a sea monster just when Britain was about to establish the most extensive Empire on earth by means of its maritime superiority. For Schmitt, however, it is no accident that the sea mammal becomes the symbol of a peacemaking order and that the English would view this order as linked to an image of their maritime destiny. (Dean 2006: 14) A tension thus arose. Hobbes sought to develop a model of the modern land-based state equipped with a monopoly of sovereignty through a mythical image of the sea monster leviathan, rather than that of the land monster behemoth. He projected this mythic image during an era when Britain was becoming a formidable maritime-based imperial power. Inevitably, this new era generated a redefinition of the significance of everything associated with the sea, including, as already discussed, the meaning of leviathan itself. Schmitt thus raises the question of whether, if he had to choose between behemoth and leviathan as mythic depictions of the early modern state, the former may have been a wiser choice. And then, perhaps, only if it referred to the continental rather than distinctly English model. Gottfried, for example, notes with respect to Hobbes that: He also put forth a new image of authority which, Schmitt believed (and indicated by the subtitle of his book), proved to be an unsuccessful symbol. However arduously Hobbes might have worked to link the Leviathan to the ideals of unity and security, he failed to change entrenched attitudes about the creature he evoked. Jewish and Christian commentators had identified Leviathan with the end of the world; Kabbalistic literature had spoken of it as the food upon which the righteous would sup after sinners had been vanquished. Only in ancient Germanic myth was a sea monster associated with blessing, and Schmitt assumes that Hobbes’s readers would be less familiar with that association than with the conventional Judeo-Christian one. What further complicates Hobbes’s imagery is his confusing reference to Behemoth, also taken from the Book of Job. In his work on the Roundhead Parliament that fought and defeated Charles I but then fell

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into confusion, Behemoth becomes a metaphor for a government at war with itself. Nonetheless, England, in Hobbes’s time, was already a sea-power confronted by hostile powers. Would it not have made more sense, Schmitt asks, for Hobbes to bestow the appellation Behemoth upon a non-English state rather than upon an England divided? (Gottfried 1990: 48–9) Within the new era of English maritime power, sea borne threats of the type dramatised by the sea monster leviathan became subversive of the nation’s sense of itself; whilst the mythic associations of behemoth also underwent transformation. As Aravamudan recognises: Schmitt, whose interest lies in the territorial and continental European State, would rather Hobbes have used the terrestrial Behemoth than the marine Leviathan as the symbol of State. However, he also acknowledges that there is a brilliant counterintuitive aspect in the English context for Hobbes’s choice. The year when Leviathan was published, 1651, also saw the passage of Cromwell’s Acts of Navigation, which helped establish England as the globe’s pre-eminent maritime and commercial power for the next three centuries. In England, the sea and global commerce were the mechanisms by which the bourgeoisie defeated the landed and territorial aristocracy, and therefore the Leviathan prefigures that defeat even as it also (somewhat unhelpfully for Schmitt) leads to England’s identification of non-State enemies, and her development of total war in the maritime context. (Aravamudan 1995: 635) Later, within England, the rise of the industrial revolution, together with the emergence of a capitalist and utilitarian spirit of rational marketoriented calculation, worsened the conditions of reception for Hobbes’ mythic image. For Schmitt, the result of such political and geopolitical transformations in the context of reception within England was that: ‘Hobbes’ … image of the leviathan was regarded … by his own people … as the symbol of a monstrosity’ (Schmitt 1996b: 80–1). By contrast, Hobbes’ political theory took root more firmly within state-building practices on continental Europe, particularly France and Prussia, where traces of Saxon traditional interpretations of the leviathan myth still continued to resonate. Hence, part of the explanation for his Leviathan book’s lack of appeal to his compatriots lies in Hobbes’ contextually inappropriate deployment of mythic images and contrasts between behemoth and leviathan. Schmitt argues that mythic understandings of this political symbol began to lose their traction and intelligibility within a disenchanted and despiritualised European age: one dominated by both technology and a technocratic interpretative orientation:

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That image was inadequate to the system of thought to which it was applied in historical reality, and it perished as a result ... The mythical image created by Hobbes thus came to an end. … the image of an allpowerful animal taken from the Hebrew Bible that had been rendered harmless would not convey an intelligible symbol for a totality produced by a modern technology. On the thought processes of total technology the leviathan can no longer make a sinister impression. It trusts itself to be able to place him … under protection in a preserve and display him as a museum curiosity in a zoo. (Schmitt 1996a: 82) Under such transformed cultural conditions of reception, the reinterpretation of leviathan’s view of the state as a mere external ‘mechanism’, ‘a machine animated by the sovereign-representative person’, itself unaided with emblems radiating mythic power, can never hope to embody, signify and resonate with populist understandings of ‘the nation’ (Schmitt 1996b: 32).

The slaying of leviathan According to Schmitt, the rise of the liberal and increasingly secular state throughout the 19th century proved the death-knell for Hobbes’ leviathanstate, which now became increasingly understood through the lens of a mechanistic image of leviathan. The latter contributed to a fatal disenchantment of mythic belief in the authority of state sovereignty, and hence the legitimacy of public sector regulation. Citizens of a modern state can no longer cohere together as members of a ‘common people’, or ‘nation’, integrated through shared religious beliefs alone. Instead, to retain social cohesion they need a distinctly personalised mythic symbol of nationhood. Leviathan, however, offered only a mechanistic depiction. Schmitt certainly credits Hobbes for articulating a theoretical framework for the early modern state requiring the myth of the nation. Yet, he strongly criticises the way in which the choice of leviathan contributed to the latter’s subversion through the depoliticising mechanisms of neutralisation and public policy agnosticism. This arose initially with respect to questions of ‘inner’ subjective faith. Such agnostic neutralisation, grounded in an untenable series of dualisms, represented the proverbial thin end of a wedge that unintentionally encouraged and legitimated the monopolistic dominance of the liberal state at the expense of state sovereignty. For Schmitt, the net effect for Hobbes’ model of sovereignty, which should not be confused with modern ‘totalitarianism’, was to steadily emasculate and enfeeble de facto public sector capabilities at the expense of

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the sectional interests of a range of ‘indirect powers’. Whilst the increasing dominance of liberal parliamentary states depends on their own mythic beliefs, these are of a depoliticising technocratic kind, sometimes over­ loaded with abstract cosmopolitan qualities and one-sided individualistic and libertarian agendas. Liberal disenchantments, neutralisations and depoliticisation have subverted those myths of a legitimate form of sovereign power that a nation’s distinctive political culture needs to rely upon. As a result, they are incapable of either affirming or reiterating important political unities, such as the nation state, which are the institutional precondition for democracy itself. Depoliticising and neutralising myths exert their technocratic impact at the expense of the myth of a people as a distinct ‘demos’ or ‘nation’. A supplementary myth is necessary to provide a credible, if perhaps imaginary cultural, grounding for their shared experience of belonging together as participating members of a single demos or unified people: a unifying and credible national symbol with sovereign power. Hobbes needed to harmonise the mythic foundations for citizens’ belief in state authority, with the de facto operation of state machinery, such that both these elements of state power reinforced the other. His choice and depiction of the leviathan myth failed to do this. Hobbes’ promotion of an essentially, if initially implicit, qualified form of state sovereignty, restricted to determining religious questions, combined with a mechanistic image of the sovereign as little more than an artificially constructed artefact, a plastic god-image, proved increasingly problematic. They lacked the emotive power of prevailing mythic belief to which a political community must subscribe in order to reiterate its distinctive, shared system of beliefs. Here, political myths provide a sense of national identity that unifies distinct peoples, and thereby helps differentiate them from ‘their’ nation’s friends, enemies and neutrals. Such routine differentiation, which is both underpinned and enabled by authority-granting cultural myths, links – in a contingent and always fragile manner – the logic of the political and the ordering of state institutions to that of the mythic. According to Schmitt, the reasons for the instructive historical failure of Hobbes’ leviathan myth during the period of the rise of the liberal constitutional state, highlight a core aspect of this relationship. In short, and according to Schmitt, Hobbes was blind to the possibility of leviathan becoming a counterproductive political myth, failing to foresee that his substantive theory could become undermined by changing cultural and material patterns within his native land that affect prevailing understandings of this myth. In this respect, the choice of leviathan as an artificial machine effectively internalised some of the reasons for the selfdestruction of Hobbes’ political and legal theory, and the hollowing out of the required myth of undivided and personalised sovereignty (Kahn 2003: 76).

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A fatal concession to liberal individualism? Schmitt argues that Hobbes must bear some of the responsibility for the collapse of his system not only in relation to the poor choice of leviathan as its mythic figurehead but also with respect to an ultimately fatal concession to liberal individualism concerning the controversy over the status of belief in miracles. His concession contributed to a process of subversion, which in turn drew support from a further distortion of the leviathan myth. Here, Hobbes’ substantive theory made an apparently minor, but ultimately significant, concession to embryonic forms of liberal individualism fixated upon questions of private individuals’ ‘rights’ against the state. The problem is that if state sovereignty concedes under pressure that it can be limited or overruled by even one ‘exception’ to sectional demands, then on what principled basis can it then close the floodgate it has just opened by resisting concessions to other ‘special cases’ allegedly with equal ‘merit’. As every school teacher knows, making one ‘exception’ to a disruptive class emboldens students to demand others, and risks displaying an inability to defend general rules and principles: one that typically undermines one’s authority in the eyes of all students. The source of Hobbes’ fatal concession lay in the influence of dualistic thinking upon his substantive theory. In retrospect, it appears that Hobbes’ substantive theory had, for Schmitt, remained too close to Descartes in separating out supposedly ‘inner’ and ‘outer zones’ of human experience – as if these constituted mutually exclusive opposites, as if they confronted us with having to make an either/or choice between them. Hobbes’ theory located the subjectivity of citizens in a presumed ‘inner sphere’ of private and atomised individuals, assigning the public sphere of the state to a purely ‘external’ realm: one that individuals face as an alien and external force, akin to a machine or a modern battleship (Schmitt 1996b: 37, 41, 53, 56). Establishing this dichotomy provided an opportunity for later writers working with different theoretical frameworks and policy agenda on constitutional questions, to exploit. Later, the individualistic liberal cosmopolitan tradition stemming from Kant’s Critique of Judgement (1790), which reiterates and follows the same inner/outer dichotomy, became a primary intellectual force behind this transformation of the leviathan state. Interpreting the world through a framework decisively shaped by a range of such either/or oppositions, or ‘dualisms’, steadily gained ground. Amongst these were the science/faith and rationalism/irrationalism dichotomies of early forms of positivism, which cast a taboo over myth as something to be purged, along with other unscientific and irrational beliefs in ‘superstitions’ more generally. One result of this process was the draining away of leviathan’s original living, personalistic mythic associations in favour of an increasingly mechanistic scientific worldview. When viewed through the prism of the

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leviathan myth, the state appeared stereotypically as merely one external thing amongst many others. It became interpreted as little more than an external objective mechanism, a giant machinery of inanimate and automated functions governed by technical rules. Under the influence of technology and liberalism, the state was redefined as merely a ‘technically neutral instrument’, and thereby something both depoliticised and neutralised (Schmitt 1996b: 41–2). Whilst for Hobbes, the meaning of leviathan’s mechanistic, aesthetic and organic qualities formed a thoroughly mythic unity, these later historical developments shattered this unity. Also aided by romanticism, these qualities increasingly became rigidly separated and juxtaposed (Schmitt 1996b: 41). The idea that the leviathan state was little more than an external monstrous force and inhuman mechanism took hold from the 18th century as a premise of libertarianism (Schmitt 1996b: 65). Within 100 years of its first edition, Hobbes’ mythic figure, originally depicted as a fusion of huge man, mortal god and machine, lost its human and godlike connotations with which citizens could potentially identify and respect as ‘a sovereign representative’ person. Instead, the pure mechanistic connotation, supposedly located in a de-spiritualised ‘outer’ realm alone and oriented only to security issues, began to take centre stage by overshadowing these other connotations (Schmitt 1996b: 32, 34, 65). What emerged from the mechanistic image of leviathan was a redefinition of the nature of law shaped by the rise of a technocratic form of legal positivism, which separates expert conceptions of ‘legality’ from popular conceptions and questions of truth, justice and both political and moral legitimacy (Schmitt 1996b: 70–1). Another result of this transformation stemming from such excessive liberal-Kantian dualism and libertarian individualism, has been the steady erosion of citizens’ capacity to identify with the state as an expression of overarching unity, an organic complex of differences which the individual experiences as his or her life-element. It thus became increasingly difficult to interpret ‘the state’, defined as an artificial and soulless machinery of purely technical functions, including those related to policing and national security, as our state: The process of mechanisation is not, however, arrested but completed by this personalisation. The personalistic element too is drawn in the mechanisation process. … the soul thereby becomes a mere component of a machine artificially manufactured by men. … The leviathan thus becomes none other than a huge machine, a gigantic mechanism in the service of ensuring the physical protection of those governed. (Schmitt 1996b: 34) Such alienation prevails, according to Schmitt, even within contexts where mechanistic understandings have been extended to encompass

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citizens themselves, their self-understanding as mere cogs in an external machinery (Schmitt 1996b: 53; McCormick 1997: 270–86). In short, a transformed and secularised leviathan image has become too mechanistic to convey through mythic ‘personalisation’ of state authority, the idea that Hobbes actually needed to adequately bolster his substantive political and legal theory of state legitimacy: Because the state in Hobbes theory is not a total person – because its sovereign representative person is only the soul of the ‘huge man’ state – the process of mechanization by means of this personification is … actually completed. This personalistic element is drawn into the mechanization process and becomes absorbed by it. As a totality, the state is body and soul, a homo artificialuis, and, as such, a machine. It is a man-made product. Its material and maker, material and artifex, machine and engineer are one and the same, namely men. Also the soul thereby becomes a mere component of a machine artificially manufactured by men. The end result is therefore not a huge man but a huge machine, a gigantic mechanism whose function is to protect the psychical existence of men whom it rules and guards. (Schmitt 1996b: 98) Schmitt thus implies that a mythic figure of extraordinary qualities invested in a specific and extraordinary human person, a heroic leadership figure with which citizens could identify as one of their own, would have worked far better for Hobbes’ overall project than the disenchanting figure of a man-made machine conveyed by leviathan’s 18th- and 19th-century associations. Schmitt also implies that the leviathan symbol appears at first sight to lack any reference to political enmity. However, many of the cultural associations ascribed over time to this myth imply an opposition between land and maritime forces. This emerged both before and after Hobbes’ classic work, and also endorsed the internal subversion of state authority (Schmitt 1997: 2–3). By the 18th century, Hobbes’ leviathan myth was routinely being reinterpreted through an enhanced inner/outer dualism. Hence, a political myth Hobbes had carelessly promoted to endorse his model of state authority had now changed colours by turning back to subvert the legitimacy of the state itself. Now the leviathan became ‘a sickness unto death’ (Schmitt 1996b: 65). In short, Hobbes’ endorsement of an inner/outer antithesis has proved disastrous for the integrity of both his leviathan myth and his wider political and legal theory. The disaster was not confined to the creation of a mechanistic image of the leviathan state with which citizens could not generally identify. In addition, the unintentional encouragement of dualistic thinking supported a contrast between outward confession and

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inner faith, with the latter located in a private realm of individual conscience. This minor crack provided an opportunity for hostile anti-statist and sectarian forces, Schmitt terms ‘indirect powers’, to insert a thin edge of a massive wedge. Schmitt claims: ‘Although Hobbes defended the natural unity of spiritual and secular power, he opened the door for a contrast to emerge because of religious reservation regarding private belief and thus paved the way for new, more dangerous kinds and forms of indirect powers’ (Schmitt 1996b: 83). On Schmitt’s reading, the fate of Hobbes’ leviathan and its associated dichotomies is particularly instructive with respect to the origins of ‘freedom of religious belief’. It shows how a political myth can open up a space within the public sphere of political obligation for an individualistic form of private conscience, thought and faith. The latter became detached from a statecentric framework whose official policy on questions of religious truth was to have no such policy. Schmitt complains that Hobbes introduced into the political system of the Leviathan a ‘differentiation between inner faith and outer confession’. He treated the former as a matter of ‘private’ choice and strictly ‘personal’ judgement, whilst confession alone was held to constitute a matter of ‘public’ reason – and thus state decision. As a result, he bequeathed to us in embryonic form a classic private/public dichotomy: one that grew into the centrepiece of the liberal individualist tradition, including libertarian conceptions of freedom of thought (Schmitt 1996b: 56, 65, 81). This dualistic framework was able to exert an unpredictable and self-destructive impact that was quite the opposite of what Hobbes had originally sought (Schmitt 1996b: 62). In turn, the cultural associations of the leviathan myth exhibited analogies with Hobbes’ unfortunate vindication of ‘private faith’ and ‘conscience’ as a Trojan horse for the anti-state politics of ‘intermediate groups’ and precursors to later liberal individualism and free-market ideologies: ‘Although the image did not unequivocally conjure up a definite and clear political enemy, it contributed the insight that indivisible political unity was destroyed from within by the demolition work of indirect powers’ (Schmitt 1996b: 85). Such an unfavourable context of cultural reception was not aided by the distortion of the state’s image as a threatening machine. In turn, this generated a transformation of the implications of Hobbes’ substantive doctrine. The latter suggests that whatever citizens may privately think and believe within their private inner zone, it is vital for them to act publicly in ways that conform to positive state laws. As something purely technical, such laws cannot effectively regulate the inner zone of subjective belief in any event, including religious belief. What began as a marginal part of his theory, a mere proviso, was subsequently extended and generalised across the board to generate liberalism’s classic private versus public dichotomy. According to Schmitt, this dichotomy became increasingly exploited by and

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for particularistic sectional and sectarian interest groups, that is, by a mass of diverse ‘intermediate’ factions, who were located outside the public sphere. As Dean recognises: What is interesting here for our purposes is that the failure of Hobbes’ Leviathan, for Schmitt, is rooted in a mythology which forces into focus the land-sea antithesis that he would find in European international law. The state was fundamentally weakened from within by intermediate groups – now also including the Roman Catholic Church, Presbyterians, freemasons and sectarians of all kinds – who exploited the crack between political obligation and private faith. They slaughtered and feasted on the Leviathan in the manner described by the cabbalists. (Dean 2006: 13) Dean’s useful summary reiterates Schmitt’s view that Hobbes had pioneered an early version of the private/public dichotomy from which stemmed the doctrine that individuals possessed an inherent, or natural, ‘right’ to exercise freedom of thought. Yet, the latter contained ‘a seed of death that destroyed the might of leviathan from within and brought about the end of the mortal god’ (Schmitt 1996b: 57). Schmitt discusses the many forces he claims were linked to the different and mainly religious groups (broadly Christian and liberal-Judaic) who were both able and willing to nurture and cultivate this seed of destruction. He particularly identified early contributors to liberal and other traditions, including Spinozo. Such forces intensely exploited Hobbes’ dichotomy permissive of unexpressed freedom of thought, on condition it remained strictly private, to advance a different agenda entirely hostile to Hobbesian statism. In this way, Hobbes’ ideological invention, albeit almost by default, of a constitutionally significant zone of subjective license, which were located outside of politics, opened the door for an individualistic and libertarian doctrine ideology of subjective ‘rights’ as the alleged foundation for state authority. Hobbes’ implicit conception of private faith was pregnant with models of ‘subjective rights’, albeit in embryonic form. The consequence of the rights doctrine was that Hobbesian central concerns to promote an absolutist state type of regulated order, peace and security, became relegated to the status of ‘mere provisos’. Liberal constitutionalist prejudices in favour of a model of negative rights overpowered earlier security imperatives as a foundation for legitimate forms of state authority. In this way, the political myth emerged that absolute recognition of, and respect for, a wholly individualistic conception of individual rights, itself rooted in the self-assertions of an essential ‘private’ and atomistic (pre-social) self, provided the sole constitutional source for the authority of a legitimate modern state.

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These indirect forces thus succeeded in elevating freedom of religion to a form-giving constitutional principle of liberal constitutionalism (Aravamudan 2005: 632–4). In turn, such elevation and generalisation allowed an individualistic conception of the ‘liberal subject’ as the bearer of a right to assert its own individual rights, to gain a foothold in the legal order of the modern state, and even to set itself up as though it comprised the very origin and centre of constitutional politics. One result was a comparatively topsy-turvy world, founded upon a private/public dichotomy, where the former term of this dualism became prioritised at the latter’s expense. Private autonomy, extending beyond its roots in non-interference in questions of unexpressed religious faith, displaced public obligations and responsibilities. From the perspective of the resulting constitutional doctrine that prioritised private autonomy as a supreme general principle, it became an ‘irresistible and all-governing conviction’ that belief in the authority of a legitimate state was little more than an ‘outward cult’. Schmitt argues that intellectuals contributed to this process. In particular, he notes the influence of this inverted worldview upon the doctrines of Kant, Spinoza, Goethe, Moses Mendlessohn, John Locke, Martin Luther and many other intellectual powerhouses. In turn, such writers endorsed and effectively perpetuated its overall framework (Schmitt 1996b: 58–60).22 Their inversion of the original implications of ‘the positively understood myth of the leviathan’ led, in turn, to ‘the decisive turn in the fate of the leviathan’ (Schmitt 1996b: 58).

22 At this point, Schmitt’s text from 1938 makes a small number of entirely gratuitous concessions to Nazi anti-semitism and censorship laws by emphasising the alleged role of European Jews in this process, which – whilst adding nothing to the intellectual substance of his overall argument – still cast an unfortunate shadow over the entire work (Kahn 2003: 77). These references have been seized upon by critics. See, for example, Gershon Weiler, From Absolutism to Totalitarianism: Carl Schmitt on Thomas Hobbes (NY: Hollowbrook Pub. 1994), 40; Detlev F. Vagts, ‘Carl Schmitt in Context’ (2002) 23 CDZLR 2157, 2158–9. However, a more nuanced reading sensitive to internal criticism suggests that the Nazi party’s seizure of state power at the expense of the Hobbesian state, is a recent instance of an ‘indirect power’ exploiting the opportunities liberal constitutionalism provides to destroy the latter. This is analogous to this movement’s own vicious critique of the allegedly indirect power exercised by Jews within Germany and more generally: the implication of which is at least as much implicitly anti-Nazi as it is expressly anti-Semitic. This is not to accept of course that, despite considering Nazi race theory a swindle, Schmitt himself was free from typical and classic Catholic forms of anti-Judaism that risk merger into, or overlap with, traditional forms of outright Semitism. See Schmitt (1991b): 57, 209, 290. It is entirely possible – as I have sought in this chapter – to reinterpret his study of the leviathan myth in ways that do not endorse this unacceptable form of prejudice without, however, distorting its most worthwhile points.

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Schmitt does not, however, lay all the blame for the distortion of Hobbes’ doctrine upon such intellectuals. On the contrary, he recognises that Hobbes’ own unwise choice of the myth of leviathan – together with the latter’s invocation of a land versus maritime conflict – also added a new twist to this process of dissolution. As already discussed, leviathan operated as an emblem whose reinterpretation in a changed context of reception became increasingly expressive of implicitly neo-liberal, anti-statist implications. This mythic symbol radiated associations with a monstrous and ‘external’ type of public sector power, which was entirely incompatible with a newly-minted, yet increasingly powerful and assertive, individualistic ideology of subjective rights. For Schmitt: ‘All the mythical forces embodied in the image of the leviathan now struck back against the state that Hobbes had symbolised’ (Schmitt 1996b: 62). According to Schmitt, the fate and reputation of Hobbes’ theory reaped the seeds of death sown by his own unfortunate choice of mythic imagery. The idea and practice of state authority and sovereignty he promoted suffered increasingly not only from the rise of a Kantian form of liberal constitutionalism but also the ideological and material benefits the latter’s libertarian orientation afforded to liberal, and even distinctly anti-liberal, movements of all kinds. The scholarly content of Hobbes’ Leviathan became subjected to all manner of distortions and misrepresentations. These ignored the element of reciprocity in state protection and obedience to positive law contained within his social contract doctrine. In this way, the modern state became increasingly demonised – as if it represented an inherent and tyrannical foe of individual freedom akin to a wild beast in need of domestication. A nonhistorical dichotomy of ‘the individual versus the state’ arose that superimposed an individualistic enmity to the public sector into what was supposed to lie at the very core of its citizens’ existence. The leviathan state thus came to symbolise a prototype model and material embodiment of illiberalism and, for this framework, the feared ‘totalitarianism’ of the ‘total state’ (Schmitt 1996b: 71–3). According to Schmitt, one result of these ideological transformations was the subordination of the integrity of the public realm and the public sector ethos attached to state, or quasi-public, institutions, which Hobbes valued so highly, to the individualistically conceived ‘private sector’ of civil society. This ideological subordination was itself legitimated by reference to a deceptive libertarian individualistic ideology of ‘freedom’ (of trade, markets and the marketplace of ideas). It grew historically to the point where the public sector was eventually placed on the defensive, ultimately suffering effective emasculation, even ‘castration’ (Schmitt 1996b: 70).

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Liberalism’s illiberal outcomes In a further twist, this liberal individualistic critique, which included a disavowal of the very idea of a strong yet legitimate state and public sector, turned viciously counterproductive. It did so by allowing highly repressive social forces, many of which lacked any genuine concern for individual freedom other than as an ideological battering ram, to fill the void by seizing control of the public policy agenda. With a certain theatrical flourish, Schmitt argues: The leviathan in the sense of the myth of the state as the ‘huge machine,’ collapsed when a distinction was drawn between the state and individual freedom. That happened when the organizations of individual freedom were used like knives by anti-individualistic forces to cut up the leviathan and divide his flesh among themselves. Thus did a mortal god die for a second time. (Schmitt 1996b: 74) The key point here is that, in the name of ‘rights’ and ‘individual freedom’, the so-called liberal constitutional state promoted an ever wider extension of the scope and legitimacy of the non-state realm (of civil society and the private sector of the economy more generally) at the expense of the public sector. This was a movement legitimated ideologically by reference to an inner versus outer dualism, together with a cluster of related dichotomies. These set up an either/or relationship between faith versus confession, private versus public and individual freedom versus state repression. And yet, ironically, one key intellectual source for these dualisms lay in Hobbes’ Leviathan. In turn, the emergence and later dominance of liberal constitutionalism and its technocratic doctrine of political neutrality, or pseudo ‘tolerance’ of repressively intolerant movements, allowed distinctly illiberal forces to roll back and colonise the ideologically discredited state sector of modern European states. The Hobbesian-style state lacked defenders because, as already discussed, it has become widely conceived of in mythic terms as little more than a giant and impersonal (actually ‘depersonalised’) machinery: that is, as an entity lacking ‘soul’, or any other humanising qualities, with which citizens could identify as a vital part of their life-element (Schmitt 1996b: 62–3, 74). Dyzenhaus usefully highlights a central aspect of this counterproductivity: Here, according to Schmitt, in Hobbes’s distinction between faith and confession, one gets the decisive break in Hobbes’ system which will lead in the end to the ideas of freedom of conscience and thought, and thus to the liberal constitutional system. For with that distinction is

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born the distinction between the inner and the outer spheres and thus the seeds of the idea of civil society as one vast private sphere, the terrain of free individual action. And given the disappearance of the soul from the machine of state, the state itself is hollow, desouled, and vulnerable to capture by the indirect powers of civil society, each organized around its own myth. The seeds of the idea of civil society as the realm of the inner are also the seeds of Leviathan’s death. In this way the mythical forces which Hobbes’ Leviathan were meant to combat are in fact unleashed by it and strike back. (Dyzenhaus 1997: 91) Schmitt’s analysis, first published in 1938, contains a necessarily encoded critique of Nazism’s failure to honour the Hobbesian pact requiring obedience to law in return for guarantees of physical security for citizens: a stance that subordinated and instrumentalised the Hobbesian model of the modern state to the dictates of a repressive political party apparatus under a tyrannical apparatus of a dictatorship (Dyzenhaus 1997: 186). A doctrine that affirms the unqualified ‘rights’ of even the most repressive framework of totalitarian ideas to fulfil their own fascistic policy agenda, as if these were akin to the choice of private religious convictions, demonstrated its contradictions, even counterproductive tendencies. As Kahn recognises: It is true that Hobbes makes room for the destruction of Leviathan from within by the exercise of individual conscience. But the specific point Schmitt wished to make was that the liberal reluctance to infringe on the right of conscience, along with the liberal technological approach to government, amounted to aesthetic indifference to substantive goals – and indifference to the harm that subjective conscience could do to the state. This harm could be catastrophic if one interest group managed to gain access to the efficient mechanism of the state. Here Schmitt was reading Leviathan with the fall of the Weimar republic in mind. … This analysis of the vulnerability of the liberal Hobbesian state to intolerance has led some readers to see Schmitt’s Leviathan book as an oblique criticism of the Nazi party. … Nazi mythmaking is not the solution to liberal fragmentation, but rather its perverse fulfilment. Rather than preserving the political in the form of a ‘qualitative total state’ that would exist above society, fascism penetrates every aspect of existence, conflating state and society in a quantitative total state. Instead of observing the liberal quid pro quo of protection for obedience, the Nazi state kills its own citizens. (Kahn 2003: 76–7) Previously, in 1932, Schmitt had warned against how the repressive tolerance of liberalism’s ‘equal chance’ doctrine and hostility to emergency

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powers measures was threatening the fragile democracy of the Weimar republic by providing for its destruction from within by anti-democratic communist and Nazi forces. The latter were effectively encouraged to seize power by ‘democratic’ means (Schmitt 2004b: 94–5). As Dyzenhaus notes: In Schmitt’s opinion, Hobbes saw the need for a myth that would lend the positive legal order the right kind of substance. That was the reason Hobbes called his great work on political philosophy ‘Leviathan’ and it was why he, in his second of the three references to the Leviathan, described the sea monster as a great man. But his third reference is to the Leviathan as a great machine. The product of his rationalist impulse was the destruction of the state’s soul which rendered the state insubstantial and thus open to enemy capture. (Dyzenhaus 1994: 8) On this basis, Schmitt criticises Hobbes’ resort the ‘famous image’ of leviathan as ‘a much-used, horrible image of his all-devouring leviathan’ and a ‘monstrous creature from a fable’, for making it all too easy for ‘indirect powers’ to undermine the ethos and reality of the modern state (Schmitt 1996b: 76–7). If the state is interpreted ideologically as an inherently repressive machine, then this risks underplaying the all too real differences in kind between political life under broadly quasi-liberal and other forms of democracy as distinct from totalitarian regimes, and between qualitative and quantitative-totalitarian state forms. The leviathan image of a man-machine thus veered too close to a type of imagery better suited to liberal neutrality and uncritical ‘tolerance’, than to the endorsement of the authority of a constitutionally legitimate public authority. In this respect, Hobbes’ choice of leviathan was insufficiently political. His depiction of this myth failed to identify an actual or emerging specific enemy against which it was directly polemically. This was not because of a lack of such enemies but rather due to Hobbes’ sheer inattention to this question. Thus, as a merely would-be political myth, it lacked real substance. For Hobbes, the leviathan symbol aimed to positively support a constitutional theory committed to the restoration of peaceful order under an effective and powerful state apparatus. It could not be neutral as between state-guaranteed peaceful order and political unity on the one hand, and on the other, a divisive context of sectarian conflict with entirely opposite centrifugal tendencies hostile to a quasi-autonomous state sector. However, in practice, this model of the early modern state failed to either identify or direct itself polemically to counteract those emerging social forces committed to policies with the opposite practical implications. It could not become what it needed to be, that is, militantly democratic. In particular, Hobbes’ choice of leviathan failed to register the threat posed by ‘indirect powers’. These sought to gain and exercise political

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power without the associated responsibilities for ensuring good governance for society as a whole and the protection of citizens’ needs for security. They were united only in their shared and self-serving ideological hostility to autonomous state authority defined selectively as an obstacle to the instrumentalised fulfilment of their particular interests (Schmitt 1996b: 82). In short, in providing indirect support for liberal individualism through the doctrine of ‘freedom of conscience’, Hobbes was acting inconsistently. In particular, he provided an early, if unwarranted, encouragement for what later evolved into liberalism’s depoliticising and technocratic constitutional tradition. The latter’s own mythic framework of ideas and distinctions are, of course, entirely hostile to Hobbes’ conception of the modern state. Indeed, the leviathan model of the state was typically interpreted as inhuman and grotesque (Schmitt 1996b: 63, 128–9). In addition, the rationalistic positivistic element of Hobbes’ substantive theory, which was designed to allow for optimal individual calculation of the possible legal consequences of their actions, implies and reiterates a mechanistic depiction of the state as a soulless machine. This theoretical element harmonised all too well with elements of the leviathan myth already discussed. The irony here is that Hobbes’ theoretical rationalism, itself connected to incipient ideological liberalism, purporting to embody the impossible ideal of political neutrality, aimed to transcend all reliance upon myth. Indeed, it was directed polemically against all manner of religious and metaphysical theories of law. These included both natural law and Savigny’s conception of law as an expression of the spirit of a concrete people. However, this rationalistic programme of legal positivism backfires in that it also draws selectively upon leviathan’s mythic qualities. As Dyzenhaus astutely recognises: In Schmitt’s view, the first manifestation [of rationalistic individualism] is in Hobbes’s emphasis on state structures that facilitate individual calculation of the consequences of action. This rational state apparatus is one which functions mechanically so as to ensure the rule of a framework of stable laws rather than the personalized and arbitrary rule of the sovereign. Schmitt found that this idea explained the image of Leviathan as a great machine that is also a man. This image is deeply metaphysical in that it challenges the power of other political symbols by seeking to erect the myth of the great machine in their place. It seeks to subvert all political myths, theologies, and religions by its claim to neutrality. But in a sense it is also antimetaphysical since the new god it creates is transcendent in only a juristic, not a metaphysical, sense. Thus, legitimacy is collapsed into legality, or formal legal validity. But, according to Schmitt, in the very claim to do away with all other myths, it makes itself the most profound metaphysical claim of all. The idea of

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the ruler as a soul in a machine is nothing more than Descartes’s idea of individuals as machines with souls. (Dyzenhaus 1994: 9) In sum, Schmitt’s central critique of Hobbes is not that he resorted to political myths and mythic oppositions. Instead, he criticises the latter for depicting the modern state as a leviathan figure when this evoked different and, in some respects, incompatible associations from those of his substantive theory. Schmitt’s criticism is thus that Hobbes drew upon an inappropriate kind of mythic symbol: one that contributed to the intellectually unwarranted eclipse of his political theory. In other words, whilst Hobbes’ political concepts had a distinctly political relationship to the contemporary realities of 17th-century England, he blunted the rational force of his critique by virtue of his choice of an inappropriate mythic symbol suggestive of residues of incompatible libertarian individualistic prejudices. As Kahn’s commentary recognises: Ultimately, Hobbes failed to establish an adequate model of state power, according to Schmitt, because he chose the wrong myth. Hobbes failed to realize that the image of the Leviathan was ambiguous: in the Bible, Leviathan is a powerful sea monster, but also one hated by the Jews. To Hobbes’ contemporaries, Leviathan suggested the evils as well as the instrumental uses of state power … That is, Leviathan summoned up the indirect powers – including, for Schmitt, the stateless Jewish people – interested in obstructing the creation of the secular nation state. In contrast to Machiavelli, Hobbes failed to understand the power of myth … Instead, Hobbes unwittingly chose to represent his commonwealth by the one mythic figure whose double meaning anticipated the self-destructing artefact of the liberal state. (Kahn 2003: 77) The fate of Hobbes’ theory was finally sealed when the substance and political message of his work became widely read through the lens of the leviathan myth of a great sea monster pitted against the land-based behemoth. As noted above, the former radiated negative associations for both the English and continental Europeans at this time. According to Schmitt, Hobbes’: [I]mage of the leviathan was regarded as the symbol of monstrosity. What could have been a grand unity of restoration of the vital energy and political unity, began to be seen in a ghostly light and became a grotesque horror picture. Moreover, on the continent too, it was unable to attain the nonproblematic immediacy that such images require in order to achieve the proper effect. There, where Hobbes’

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state was realised the most, his symbol of the leviathan ran aground. The sea animal was not an adequate image of the developing typical territorial power configurations of European military land powers. ... Without a great effort the beginning of a new myth could thus be soon destroyed. … Hobbes could not keep his political myth from deteriorating into something like mere representation, and this aesthetic lapse was symptomatic of the triumph of merely formal – ‘technically neutral’ or ‘mechanical’ – representation of interests in the political sphere. (Schmitt 1996b: 80–1) Hence, in this respect at least: ‘The spiritual weapons forged by Hobbes did not serve his cause. But, as Hegel correctly says, weapons convey the substance of the fighter himself’ (Schmitt 1996b: 85).

Leviathan’s instructive failure? Hobbes had failed to appreciate a fact that Schmitt emphasises as the instructive lesson from the failure of the leviathan myth as a political symbol. If jurists invoke rhetorically powerful and visually striking forms of political myth, it may well come to take on a range of unintended associations with multiple and ambiguous implications. The leviathan myth has projected the idea of a fearsome and absolute form of state authority sufficient to inspire rational obedience, and hence the image of the state as a great machine located above all other competing myths promoted by rival groups within civil society. However, by implication and for reasons already noted, such imagery has also undermined its own underlying idea. It has done so both by sowing the seeds for liberal individualism and encouraging a libertarian model of ‘negative rights’ against the state – as if these constituted the necessary foundation for constitutional legitimacy (Schmitt 1996b: 53–60, 60–78). Other commentators have recognised Schmitt’s emphasis upon distinctly counterproductive aspects of Hobbes’ resort to myth as a cautionary tale of the unpredictable trajectory and impact of politically-charged mythic symbols. The lesson here, which may have retained its relevance into the present, is that writers need to be especially attentive to the range of express and implied, traditional and emerging, associations invoked by those mythic images and symbols their works launch into the world. Whilst theoreticians may focus on the validity of their ideas and expect their impact to depend on purely cognitive factors related to questions of scientific validity and truth, Schmitt argues that the fate of Hobbes’ Leviathan suggests that symbols can be at least as powerful determinants. Hobbes’ failure teaches us that to minimise the ever-present threat of counterproductivity, we must ask a realist pragmatic question. Namely, which of these associations of meaning

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are most likely to take hold amongst my likely readers, and with what possible results in practice? It may be useful to connect Schmitt’s criticism of how Hobbes deployed the interrelated leviathan/behemoth couplet on the one hand, with his wider historical analysis of the decline of the orientation of Eurocentric international law. This, he claims, took place at the hands of a universalistic and cosmopolitan individualism originally promoted mainly by the maritime power of Britain and then America. The traditional order was land-based and spatially-grounded. By contrast, the uprooted (or ‘despatialised’) cosmopolitan order that displaced it was – and remains – based upon maritime and aerial power; it continues to operate in ways that are disrespectful of territorial principles of national sovereignty central to the earlier Eurocentric system of leviathan states (Schmitt 2003). There is another aspect of Schmitt’s view of the largely negative and – for Hobbes counterproductive – long-term implications of this writer’s possibly confused choice of mythic symbolism. The mechanical depiction of the leviathan state suggested a godless, even depersonalised model, which implicitly endorsed a secular ideology. Yet, to multiply contradictions even further, this took place within a cultural-politico context where the failure of the leviathan image suggests that what was actually needed for a consistent realisation of a Hobbesian agenda was a re-enchantment with the mystical sources of state and constitutional authority, including the need to ‘resacralize the political’. As Gottfried notes: Schmitt remarks that Hobbes’s failure to find workable symbols for the political development he was justifying had far-reaching significance. Hobbes’s inability to combine inherited with invented images, in a manner that could resacralize the political, put the national state on the way toward further secularization. Hobbes’s theory of the state seemed to come predominantly from the new science of the Renaissance and from a fixation on material interest. The Leviathan became the symbol of unbounded, despiritualized power, not one connected to a peaceful state committed to public order and the maintenance of a national church. (Gottfried 1990: 49) The results of Hobbes’ unwise choice of this mythic image of the state as a leviathan, both as a mechanism and a machine, also teaches us to be careful as to the future possible development of our ideas. In particular, there is the danger of these splintering off into two divergent and incompatible positions. Hobbes’ choice of mythic symbols has contributed to this writer’s curious role as a grandfather for both ‘natural rights’ and legal positivist schools (Schmitt 1996b: 65). For good reasons, these are generally interpreted as opposed, perhaps even mutually exclusive,

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approaches to the conduct of legal theory. In this respect, tensions between statist-authoritarian and Protestant-liberal dimensions of his system of thought have bequeathed us an inheritance fraught with contradictory implications in that the natural rights dimension can be deployed to undermine the legal positivist inheritance, and vice versa. It is important to recognise, however, that notwithstanding these strong criticisms, Schmitt’s second, or follow up, study of Hobbes has modified, in some respects, his earlier criticisms. He has recognised that the symbolic representations in the Leviathan also contain a distinctly personalist and substantive Christian dimension: one that remains resistant to the nihilistic devaluation of all values by means of technocratic neutralisation (Schmitt 1965: 62–3). This more sympathetic interpretation suggests that even during periods of rapid social change, political myths can continue to play a stabilising role of preserving continuities. Furthermore, Schmitt’s recognition of the alleged reasons for Hobbes’ failure has proved instructive insofar as it provides additional insights into political myths generally, and a key Shakespearian political myth in particular, that is, Hamlet (Schmitt 2009). He suggests that in assessing, albeit with the benefits of hindsight, the quality of the politically relevant myths deployed by writers, we need to recognise the determining impact of their immediate historical situation upon their field of vision. In particular, it is important to recognise how this shapes the fate of the reception of different myths.

Conclusion to Hobbes In short, Hobbes’ overall political and legal theory, which emphasises the need for political unity and constitutional stability, both expressly denies but also implicitly allows for classic liberal forms of individual rights against the state. His choice of leviathan as a mythic and ultimately metaphysical symbol of a supreme and mechanistic (or ‘despiritualised’) sovereign power, which invokes an insufficiently personalised man-machine, has proven to be disastrously counterproductive. It only intensified a destructive contradiction between outward obedience to positive law, and an ‘individual’ right to inner freedom of conscience predicated on a private faith/public confession dichotomy. Such an either/or distinction has operated as the thin end of a large and powerful wedge introducing the grounds for liberalism’s individualistic natural rights tradition: one which has itself proven inherently destructive of legitimate state authority and power. There is another, more general conclusion to be drawn from Schmitt’s study of the leviathan myth as a failed political symbol. For Schmittian analysis, not only the comparative successes but also the failures of specific political myths can prove instructive. There is, perhaps, a need for constitutional scholars to take seriously the ‘trial and error’ aspect of their creation and deployment within different eras. They should also draw

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appropriate lessons from case studies of the instructive failures of the use of political myths, as well as from more successful examples. According to Schmitt, a pre-eminent example of the latter is Shakespeare’s Prince Hamlet: the topic of the next chapter.

Chapter 6

Hamlet as an instructive prototype of a political myth?

Schmitt’s Hamlet or Hecuba: The Intrusion of the Time into the Play (Schmitt: 2009) includes a remarkable analysis of myth’s political significance within Shakespeare’s classic play. It is arguable that, compared with his other studies of myth, this study sets out a particularly sustained analysis concerning the specifically cultural dimensions of the interpretative formation, transmission and mutation of mythic figures, albeit mainly developed as a sub-theme. His analysis certainly nuances and supplements his better known – if far less sophisticated – accounts of myth contained in The Crisis of Parliamentary Democracy (Schmitt 1988). Commentators have recently started to recognise the significance of Schmitt’s reinterpretation of Hamlet as a mythic figure. They have noted its relationship to his historical studies, for example in Nomos of the Earth, of the role of Britain’s early modern public sphere and growing maritime orientation within the history of international law (Schmitt 2003). Such recognition provides a new and interesting take on questions of mythic depoliticisations of literature and comparisons with neo-Marxists, particularly Walter Benjamin, Theodor Adorno and Max Horkheimer, including the latter’s influential Dialectic of Enlightenment. The latter includes a sustained analysis of the politically instructive value of specific myths (Pan 2009a: 70, 76, 73–96). This chapter addresses three major themes: the relationship between Schmitt’s analysis of Hamlet and leviathan, Hamlet as an exemplar of a deliberately created political myth, containing various constitutional implications, founded upon the intrusion of historical events related to sovereignty, and, thirdly, the creative role of the context of reception for the reiteration of myth.

Hamlet as a corrective to leviathan? Schmitt appears to have recognised some general lessons from the failure of leviathan as an ultimately political myth. In turn, this recognition informs his interpretation of Hamlet, and provides an initial frame of reference for interpreting this later literary study. Interestingly, if albeit at the risk of

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gross simplification, Kahn argues that we need to read Schmitt’s study of Prince Hamlet as a corrective to the counterproductive failure of leviathan as a political symbol, as an exemplary Schmittian ‘countermyth’: Hobbes of Der Leviathan is a tarnished figure, one who failed to understand the importance of myth and who unwittingly inaugurated the protoliberal, technological vitiation of politics. I now want to suggest that in his 1956 work, Hamlet oder Hekuba, Schmitt turned to Shakespeare in order to elaborate his own counter-myth of early modern politics, one designed to counteract the deleterious effect of Hobbes. (Kahn 2003: 80) These two studies are, perhaps, best read together as contrasting case studies of a failed and comparatively successful political myth. Such comparison may, in turn, teach us useful lessons concerning the politicocultural requirements for launching successful mythic figures during the early modern period of English history, some of which may perhaps still be relevant today. If, as I suggest, Schmitt learned some important lessons about political myth-making from his analysis of the historical failure of Hobbes’ leviathan symbol, and these shape his later study of Hamlet, then it may be useful to address the latter partly in this light. Taken as a case study, the question arises as to whether the Hamlet myth provides a more fruitful avenue for rebuilding a convincing, and thus politically effective, myth of sovereignty than that of Hobbes’ leviathan? Is it positively beneficial to the articulation of a political myth that Shakespeare wrote Hamlet as a work of tragic fiction? Here we should note that, as a contribution to literature, this work is free from Hobbes’ commitment in Leviathan to a type of mathematico deductive form of scientific reasoning and political science analysis seeking to displace the aesthetic realm.

Studying Hamlet’s implications: themes and questions Studying Hamlet as a distinctly political myth raises specific methodological issues and questions. These include not only the nature, presumptions, limits and focus of his approach, but also what does it means to treat the figure of Hamlet as such a mythic symbol? For instance, how does Schmitt raise and discuss the question of the possible connectedness of viable mythic figures to popularly understood intuitive understandings of the constitutional implications of concrete historical events? Can a Schmittian model draw upon distinctly realist and sociological orientations to challenge the assumption that an either/or binary relationship characterises the relationship between literary and historical figures, and between purely

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aesthetic and strictly historical analysis? Is it overly paradoxical for Schmitt to seek to enhance distinctly realistic elements of political mythology by analysing the intrusion of historical events into audiences’ interpretation of a work of literature such as Hamlet? Schmitt rejects a narrow literary critical approach to the study of Hamlet that focuses only upon the alleged genius of the author, the psychology of the title character and the aesthetic autonomy of the play as a work of art. Instead, and in keeping with contemporary hermeneutics and new historicism, he insists that the production of Hamlet as a political myth was far from unconstrained by, or otherwise unrelated to, external forces and historical circumstances, the concrete expectations and sensibilities of a real audience, and the ‘public sphere’ more generally (Schmitt 2009: introduction, 45; Kahn 2003: 82). Schmitt’s theory of myth needs to distance itself from such subjective reductionism by recognising the intrusion and mediation of the staging of the play by historical realities. Otherwise the Prince figure would be explicable purely in terms of its author’s subjectivity, not as an authentic political myth exhibiting a significance that endures across and transcends specific contexts of emergence (Strathausen 2010: 12). Schmitt’s approach thus strongly resists the complete reduction of the Hamlet myth to the entirely fictional sphere of literature, where its various aesthetic and philosophical qualities can be dissected in abstraction from any appreciation of empirical historical events and processes (Schmitt 2009: 20–1). As part of his wider critique of aesthetic reductionism, Schmitt expressly contrasts Shakespeare’s more sober-minded realism, which he clearly endorses, with the ideological appeal to the political myth of ‘humanity’. Within Schiller’s romanticism, for instance, humanity is portrayed as somehow coming into its own ‘higher sphere’ through acts of purely artistic appreciation. Schmitt argues that, on the contrary, it is more prudent to avoid the former’s humanistic commitment to ‘aesthetic liberation’ through free-floating interpretative acts of play that are supposedly detached from ongoing historical realities. This is because the latter alone provide the resources for the creation of the Hamlet myth-turned-legend (Schmitt 2009: 48). Schmitt draws the conclusion that literary myths are too important to be left to solely aesthetic analysis by literary critics. Instead, he insists that some understanding of the actual plight of King James at this time is vital to generate an informed interpretation of Hamlet as a political myth because: ‘It is here that the connection between present history and tragedy emerges. … A larger topic arises here: the political symbols and allegories in Shakespeare’s drama’ (Schmitt 2009: 26 and n 15). At the methodological level, Schmitt thus argues for the cross referencing and integration of empirical historical knowledge resonating with political meanings and implications, with artistic and literary form, including, more precisely, the

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‘irruption’ of historical forces within works of art containing potentially or actual mythic figures.

Myth and other cultural forms Where, according to Schmitt, do political myths of the kind Hamlet personifies fit within related cultural forms? If Schmitt’s terminology is taken literally, it implies a distinct order of rank between different symbolic figures that contribute to the analysis of myths more generally. Within this hierarchical order, those figures that have already attained the elevated status of genuine ‘political myths’, such as Hamlet, are located above purely literary myths. They are figures whose political associations can be openly acknowledged without deception. In turn, the mythic figures of literature occupy a position within the overall pyramid above that of other nonmythic, but still symbolic, literary figures, however well known. Schmitt’s claim that there exists a pyramid-style hierarchy, or totem pole, of symbolic figures is consistent with two of his other claims: first, that nonpolitical, or depoliticised, entities generally exhibit a problematic and conflicted status, at least in comparison with their authentically ‘politicised’ equivalents. Secondly, that the deliberate reversal of ideological depoliticisation, even aesthetic literary variants, remains an urgent analytical – as well as specifically political – task. This task is vital if social and institutional relations are ever to break free of their addictive reliance upon the systemic deception of citizens (Schmitt 1993; Schmitt 1996a). Schmitt provides us with a potentially interesting – if sometimes enigmatic – discussion of how political myths can first attain their status at the top of this totem pole of symbolic figures through the importation of non-fictional historical elements, particularly those with tragic qualities. It is now possible to focus attention upon the specifically cultural aspects of this process as suggested by Schmitt’s study of Hamlet. Once manifested in the sphere of intentional interpretations and various generic cultural forms and distinctions, actual persons and events can take on a particularly emphatic status: one which is supportive of only a fraction of them ultimately attaining a legendary mythic status. According to Schmitt, myth-making is implicated in various specific but interconnected cultural processes that allow for structural formal analysis, as well as historical interpretations oriented towards their variable content. These processes involve a primary movement of decontextualisation and abstraction from the immediate time and place of original historical events and persons and associated value-judgements. The Hamlet–James couplet becomes the cultural presence of a Hamlet-sovereign hybrid (Schmitt 2009: 20, 25, 37, 44). This initial movement is typically followed by the proto-myth’s universalistic recontextualisation, often overloaded with specific normative implications, as ‘a lesson for everyone, everywhere’.

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In turn, this can itself exhibit distinctly political and constitutional ramifications. Schmitt certainly portrays Hamlet as a mythic figure of this kind: ‘The myth of the sovereign behind the prince, the real presence of the King behind the actor on stage, and, by extension, the myth of sovereignty as presence’ (Rust and Lupton 2009: xxxvii). It is thus arguable that, on Schmitt’s interpretation, Hamlet operates as a deliberately created, therefore distinctly ‘modern’, political myth. The latter appears not only to boost a specifically Hobbesian account of personalised sovereignty, but also – as a counter-myth – to correct the failures of the mechanistic leviathan figure discussed above. In short, Schmitt makes and illustrates a series of distinctions that cast light upon a Schmittian model for political myths. The latter resist common forms of reductive analysis, subjectivism and objectivism. It also connects such myths to the ongoing process of a cultural aesthetic reiteration of concrete political orders potentially involving a conflict between, on the one hand, institutional practices and, on the other, particular normative standards held to be applicable and contextually appropriate.

Myth as an ethos of ethnicity? Schmitt endorses the provocative idea, which is rich in implications for the historical and sociological study of art and literature, that the essence of tragedy lies in mythic qualities, including heroic legends. In particular, he quotes approvingly Wilamowitz-Moellendorff’s claim (as cited by Walter Benjamin) that such legends constitute ‘the sum of the living historical recollections of a people in a time when the people can only think concretely in the form of a history of a myth … the origin of tragedy in myth must be consciously incorporated into the definition of tragedy; myth thus remains the source of the tragic’ (Schmitt 2009: 46, 46 n 32). Of course, in one sense, this formulation does not provide a generic understanding of myth per se, only one possible function of myth in relation to the origins of literary tragedies. On the other hand, Schmitt’s conception of an ongoing tradition of mythic legends, including concrete legendary figures operating normatively as positive and negative role models, does advance our present, more generic concerns. Indeed, it suggests the inevitable dominance of customary ways of thinking that are rooted in the contents of an image-rich cultural tradition of symbols, fables and other normatively-loaded narratives. The latter are themselves widely understood by affected parties as instructive guides for understanding how a supposedly ‘worthwhile life’ of the projected kind now needs to be lived. In this respect, Schmitt endorses an understanding of myth as an integral aspect of the normative ethos of ongoing, as well as traditional, cultural practices. These include a range of expectations stemming from instructive legendary myths. Of course,

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‘normative’ in this context embraces collective ethnic practices that many would regard as unethical, abnormal and immoral, as well as ethical, normal and moral, and is thus best understood as a descriptive-analytic rather than as an evaluative term. According to Schmitt, this ethos is not only articulated within literature and art. Instead, it is also lived through as the interpretative framework of a particular historically-rooted way of life (or ‘concrete order’) more generally, to which individuals firmly belong as their encompassing life element: ‘as part of heroic legend, which is not only a literary source for the writer but living knowledge shared by the writer and his public – a piece of historical reality to which all participants are bound by their historical existence’ (Schmitt 2009: 46). For example, a liberal fable concerning the need for a fight to the death to defend another’s right to express objectionable views, can be constantly repeated as a mantra of constitutional liberalism, which is directed polemically against, say, Rwandan laws prohibiting genocide denial. In this respect, Schmitt’s theory of myth includes the contribution made by the interpretative work of those who receive and make sense of such rhetorical entities as part of their overall life-world of lived experience, interpretative framework and common sense knowledge. It recognises that political myths lend themselves to specific forms of ideological exploitation – albeit without thereby losing their mythic status and qualities. The implications of Schmitt’s endorsement of WilamowitzMoellendorff’s formulation ‘people can only think ...’ certainly merits close attention. It implies a distinction between pre-modern, or ‘traditional’, cultures, whose pattern of life remains generally dominated by mythic thinking, and modernity’s distinctly post-traditional and pseudo-secular orientation. Representatives of the latter may believe that they have become enlightened beneficiaries of modernity’s fully secular and scientific ways of thinking. Allegedly, they have entirely broken free from merely ‘traditional’ ways of interpreting the world through mythic images, legendary symbols and figures, such that these now appear comparatively ‘primitive’, ‘superstitious’ and anachronistic. Yet, from Schmitt’s perspective, this approach itself reiterates an unacknowledged superstition. It is certainly found within many academic writings that begin with an incantation of the following ritualistic formulation and cliché: ‘Whilst the traditional view of X is Y, I want to show you [my presumed fellow enlightened, post-mythical modernists] that, on the contrary, X is Z not at all Y’. A Schmittian approach to legally relevant myths cannot, then, accept a simplistic type of either/or distinction between a traditionalism dominated by mythic legends on the one hand, and modernity’s allegedly myth-free (social) scientific orientation on the other. As Strathausen notes with respect to Schmitt’s interpretation of Hamlet:

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Although Schmitt himself would hardly ever endorse this thesis, his own reading of Hamlet nonetheless demonstrates that there is no ‘objective situation’ as such, because our understanding of reality is always based on a metaphysics of communal beliefs. Conceptual knowledge is not opposed to myth but is itself mythical to the core. (Strathausen 2010: 11) Schmitt argues that the ongoing myths of contemporary modern audiences continue to operate as a vital co-determinant of, say, their distinctive sense of Hamlet as a tragic figure. One aspect of the historical knowledge that early audiences of Hamlet possessed included an appreciation of the implications of various taboos and sectarian religious sensibilities that were difficult to confront openly. However, for contemporary audiences of this play, these elements will almost certainly be less vital because apparently secular myths of liberalism have become more influential upon their cultural framework. In making this hermeneutic claim concerning the reinterpretation of received mythic figures through the lens of contemporary myths, Schmitt clearly renounces any simplistic either/or dichotomy of the type just discussed. However, some comparison between how myths figure within modernity and more traditional societies is, probably, still required as a valid historical and anthropological project. This may be so at least at the level of appreciating – in an optimally agnostic fashion – the mythological elements of modernity’s cultural self-understanding as having finally overcome mythic understandings of, for example, law, democracy and the constitutional state.

Staging Hamlet’s off-stage history? In part at least, Schmitt’s invocation of ‘off-stage’ empirical history as relevant to understanding how Hamlet arose as a political myth, relies upon his criticism of aesthetic reductionism. He insists upon interpreting this play in terms of concrete historical mediation by undoubtedly real events: ‘A terrible historical reality shimmers through the masks and costumes of the stage play, a reality which remains untouched by any philological, philosophical, or aesthetic interpretation, however subtle it might be’ (Schmitt 2009: 18). Schmitt further notes that although a fictional and invented work of art, Hamlet – and the figure of Prince Hamlet within it – integrate: ‘an ineluctable reality that no human mind has conceived – a reality externally given, imposed and unavoidable. This unalterable reality is the mute rock upon which the play founders, sending the foam of a genuine tragedy rushing to the surface’ (Schmitt 2009: 45). Schmitt’s metaphor suggests that both tragedy and myth are subject to the effects of history. They are themselves historical phenomena constantly in a state of being shaped and reshaped by

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the interactions between the operations and events of aesthetic tradition on the one hand, and concrete historical realities on the other. Schmitt recognises a series of apparently sharp either/or distinctions: Trauerspiel versus tragedy, tragedy versus play, play versus the critical situation, tragic action versus poetic invention, and poetry versus drama (Schmitt 2009: 38 40, 40, 49 and 34 respectively). However, such recognition is but a preliminary move towards transcending an either/or conception of these oppositions in favour of a more dialectical neither/nor interpretation of their reciprocal mediation (Schmitt 2009: 33).23 As inhabitants of a concrete cultural tradition, audiences of the Hamlet myth encounter not an unalterable or objective reality simply ‘given’ to them as such, akin to a physical object. Instead, the historical realities in play for us here are always necessarily mediated by the operation of an aesthetic tradition, which in turn is itself mediated by such realities. In particular, part of what fills the masks and costumes of the actors are the audiences’ sense of the former’s relationship to actual historical events, mysteries, taboos and dilemmas. Thus, whilst fictional in one sense, it is Hamlet’s rootedness in, and reliance upon, a distinct sense of historical reality that has made it possible for this tragedy to acquire the status, and play the role, of a distinctly political myth. And yet the methods of empirical history remain insufficient for grasping how the figure of Hamlet attained the status of a political myth. Regarding the given historical conditions necessary to ‘conjure up the presence of a myth’, the emphasis – according to Schmitt – needs to fall upon not their ‘accurate empirical depiction’ of the kind approximated by archival exhibits and traditional museums, or purely aesthetic literary qualities. His position borders on dialectics in that he reduces Hamlet neither to given historical facts, nor to a flight from reality via pure aesthetic representation but rather to their reciprocal mediation. Schmitt emphasises the creative aesthetic reworking of given historical realities as studied, for example, by hermeneutics (Schmitt 2009: 51). On his reading, Hamlet is no longer merely one character in a single play written and first performed over 400 years ago, and whose significance is exhausted through historical contextualisation of the determinants of its original creation and initial reception. Instead, over subsequent centuries, the various reinterpretations and re-contextualisations of this figure within different narratives have resulted in the creation of an inexhaustible series of

23 This is clearly a complicated issue with epistemological and ontological implications that will not be addressed here. But see Kahn 2003: 86; Johannes Türk, ‘The Intrusion: Carl Schmitt’s Non-Mimetic Logic of Art’ (spring 2008) 142 Telos 83; Carsten Strathausen, Myth or Knowledge? Reading Carl Schmitt’s Hamlet or Hecuba (Winter 2010) 153 Telos 7–29.

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mythic images and associations. The later cultural reiteration of these tends to confirm its authentic status as a living myth. The history of the original references to real events thus needs supplementation with a historical reconstruction of the changing patterns of Hamlet’s reinterpretation, including the emergence and disappearance of specific associations and connotations. It is useful at this point to quote an especially relevant passage from Schmitt’s study of Hamlet, which – in one sense – pulls together a number of the threads of his overall theory. It also specifies one of the historical realities that shape the interpretation of this play: the disturbing taboo over the role of Hamlet’s mother in the King’s murder, the open discussion of which may once have proved dangerous: Precisely in the figure of Hamlet, he encountered a concrete taboo and an existing contemporary figure that he respected as such. The son of a king and the murder of a father are for Shakespeare and his audience incontrovertible existing realities from which one shrinks out of timidity … This accounts for the two historical intrusions into the otherwise closed circle of a straightforward play – the two doors through which the tragic element of an actual event entered into the world of the play and transforms the Trauerspiel into a tragedy, a historical reality into a myth. (Schmitt 2009: 48–9) The events staged in the play take place in the shadow of actual events and are typically interpreted by audiences as making reference to the ‘tragic core’ of the actual dilemmas these posed, even or perhaps especially, where these refer to real political scandals, traumas and taboos. The latter originally could not be more directly addressed by, or depicted within, the play itself (Schmitt 2009: 51–2). This tragic ‘core’, itself a key source of the mythic, retains a non-dispersible self-identity however much it is glossed, compressed, expanded upon or varied during different theatrical or cinematic performances. Thus, according to Schmitt, myth-making cannot be interpreted as a flight from complex and objective historical realities into a self-contained literary cultural or other purely aesthetic sphere. This is because it entails two distinctive types of relationship arising from our encounters with material, given historical realities. The first involves a deliberate reworking of the cultural forms of such given objective realities, their original, creative and emphatic intensification into mythic figures. Whilst respecting the integrity of the overall significance of real events, this reworking of distinctly tragic elements actively transforms aspects of such historical realities into living mythic figures. The latter are then able to maintain an enduring cultural presence across successive eras by reinterpreting (as a particularistic

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contextualisation) a culturally familiar scenario into something utterly distinctive by, for instance, transforming: ‘the [generic] figure of an avenger into a Hamlet’ (Schmitt 2009: 49). Typically, such rendering particularistic and intensification of tragic qualities is then followed by a process of abstraction towards general normative implications, such as the necessity to end prevarication even within less than ideal contexts of possible action. Indeed, Schmitt argues: The core of historical reality is not invented, cannot be invented, and must be respected as given. It enters into tragedy in two ways … one is the myth of classical tragedy, which mediates the tragic action; the other, as in Hamlet, is the immediately available historical reality that encompasses the playwright, the actors, and the audience. While ancient tragedy is simply faced with myth and creates the tragic form, in the case of Hamlet we encounter the rare (but typically modern) case of a playwright who establishes a myth from the reality that he immediately faces. … Shakespeare’s incomparable greatness lies in the fact that … he was capable of extracting from the confusing richness of his contemporary political situation the form that could be intensified to the level of myth. His success in grasping the core of a tragedy and achieving myth was the reward … Thus the myth of Hamlet was borne. A Trauerspiel rose to the level of tragedy and was able to convey in this form the living reality of a mythic figure to future ages and generations. (Schmitt 2009: 49) Given his express and clear contention that the extraction of culturalaesthetic form is central to the transformation of Hamlet into a mythic figure, it is inexplicable that Kahn complains of ‘Schmitt’s inattention to aesthetic form mars his interpretation of the workings of the text, even as his reliance on the aesthetic power of Hamlet serves to propagate a selfserving myth regarding Schmitt’s own tragic political decisions’ (Kahn 2003: 80). It is possible that Schmitt is entirely unconvincing in his contention, however he certainly cannot be accused of failing to make it. The second type of relationship of myth to real historical events concerns pre-modern, or ‘classic,’ types. Here myth-making works from within a continuing cultural tradition to reiterate an already received understanding of myths and legends, to which it gives a renewed literary form, possibly one that is distinctive. Whilst in this way it may be possible to generate elements of novelty and originality concerning how a traditional myth can now be re-imagined and embodied in specific aesthetic forms, the meaning and implications of the figure itself remains largely as before. For example, the various cinematic depictions of Hamlet could now be supplemented by a 3D film production characterised by every imaginable computer-generated special effect. Yet this would still amount to little more than a retelling of

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the received legend of Prince Hamlet – possibly one that adds very little to (or even dilutes) the significance and implications of the myth’s core meaning and implications. To date, I have suggested that Schmitt rejects a reductive analysis of the Hamlet myth either to aesthetic-free zone of historical analysis, or – at the other extreme – a history-free realm of ‘pure’ aesthetics. On the contrary, Hamlet became an authentic political myth and symbol only through the coming together and hybridisation of given historical realities relating, in particular, to the succession of King James with distinctly aesthetic cultural representations.

A Hamlet–James couplet? Schmitt claims that the particular historical realities intruding upon Hamlet related to religious conflict within Christian continental Europe and Britain associated with the Reformation. These represent in microcosm some of the difficulties facing King James. James was, for example, baptised a Catholic by his mother Mary Queen of Scots, however, Protestants within England then raised him (Schmitt 2009: 27, 30). King James then came to symbolise a vital and political aspect of the trajectory of the Reformation as a primary source of the modern state. In particular, Hamlet’s trauma is also portrayed as that of King James, and vice versa. When audiences interpret and recognise Hamlet as a myth, they also ‘encounter’ a Hamlet–King James couplet. Indeed, Schmitt suggests that behind Hamlet stands a concrete and immediate public understanding (as distinct from a merely indirect ‘allusion’) concerning the real King James’ plight between 1600 and 1602 (Schmitt 2009: 44). It concerns James’ accession to the English throne within a context where, like Hamlet, his father, Lord Darnley, was murdered by someone his mother, Mary Queen of Scots, then promptly married. This historical reference is co-present not as a direct and unmediated ‘copy’, or ‘mirroring’, of the original events, which would reduce the status of myth to a mere copy of prevailing realities. Instead, its presence is that of a distinct political symbol and allegory: one which – in confirmation of Schmitt’s earlier methodological claims – stands out from familiar, purely literary genres. Indeed, Hamlet’s appearance on stage as a composite figure, or ‘couplet’, is vital. Such appearance is central to any public understanding of the factors that make this drama into a real tragedy by distinguishing it from the literary genre of the typical revenge story. It also explains these various differences between them (Schmitt 2009: 22). Commentators upon this play may also take into account this symbolic aspect if they are to ever understand how Hamlet has been transformed into a mythic figure. Perhaps they must recognise that the figure of Hamlet on stage always brings to life both a fictional drama and a parallel mediating cluster of associations drawn from the non-fictional realm. According to

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Schmitt, it is these that ought to make us take seriously the play’s political implications concerning the fraught and contested, yet still unavoidable, issue of sovereignty.

Schism as religion Over and above family trauma, what is the wider historical context of conflict that mediates our understanding of Hamlet? Addressing the achievements of European literature, Schmitt distinguishes ‘three great symbolic figures: Don Qixote, Hamlet, and Faust’. Of these, only the figure of Hamlet, implicated as he is in the shattering of the Stuart dynasty caused by ‘the European religious schism’, has become a ‘genuine myth’. He clearly implies that this permeation of historical realities into the figure of Hamlet, indeed the latter’s crystallisation of core aspects of the former, set ‘the seed of the tragic myth of Hamlet’. Without this seed, the figure of Hamlet would have remained at the level of literature alone, and would not have been able to achieve the ‘elevated’ status of a political myth (Schmitt 2009: 52). Schmitt’s study interprets Hamlet as a symbolic myth of tragic rupture and fissure: one that is expressive of the murderous religious civil wars and bloodstained geopolitical developments within England and continental Europe during the 17th century. The figure of Hamlet appears with one foot in the pre-modern ‘barbarism’ typified by the bloody slaughter-bench of religious interstate and civil wars, whilst the other is rooted in the emerging forms of the early modern state that sought to both neutralise and transcend such sectarian conflict. The latter sought to create a new and secular political order and principles of institutional ordering; that is, modernity free of theological conflicts overloaded with divisive political and geopolitical implications. For audiences of Hamlet, the Prince as a mythic cultural figure succeeds in articulating a mediation and juxtaposition of these contrasting worlds, their different threats, prejudices, associations and promises. As a mythic figure, Hamlet emerges from a force field of such tensions between the social worlds of pre-modernity, where sectarian religious differences that threatened Christian dogma turned intensely political, and the implications of emerging modernity. Indeed, Hamlet takes shape in a manner that allows crisis aspects of both these contrasting worlds to come into far sharper relief (Schmitt 2009: 62–7). As Kahn recognises: [T]here is also something sensible about Schmitt’s efforts to read Shakespearean tragedy in the context of the historical shift from medieval theology to the secular nation-state. We can also, I think, appreciate Schmitt’s efforts to cast the religious struggles of the late sixteenth century and the resulting loss of certainty as themselves the stuff of tragedy and the morally demanding decision’. (Kahn 2003: 84)

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In short, in expressing a Hamlet–James couplet located at the intersection of pre-modernity and modernity, the figure of the Prince signifies the dilemmas of someone whose Royal position as rightful sovereign affords him the capacity to make decisive choices over matters of religious controversy that had caused years of murderous conflicts across Britain and Europe. In addition to invoking contexts of religious schism, Schmitt interprets Hamlet as an articulation of sovereignty undergoing crisis, and thereby coming more fully into its own element: our next topic.

Hamlet signifying sovereignty in crisis? Schmitt emphasises that Hamlet was a Prince and undisputed heir to the throne of Denmark who had been denied his kingdom by an act of murder committed by his uncle, who usurped the throne by marrying Hamlet’s mother and Queen of Denmark. Schmitt thus invokes an interpretation of the Hamlet myth in the light of distinctly political imperatives relating to state sovereignty. These include both the associated historical responsibilities and risks for those exercising sovereign discretion within the modern world, or who are seeking to obtain such power. For a contemporary audience, the issue arises as to whether it is the mythic figure of Hamlet or leviathan that best expresses and conveys the complexities involved in the loss and recovery of sovereign power? The presence of Hamlet on stage brings about and dramatises an emphatic disturbance in a presumed constitutional ‘normal situation’ twice over: once – and perhaps most clearly – in relation to the theme of disrupted political succession, and then again as a concrete and expressed episode within the staging of the play itself. Shakespeare thus leaves his audience in little doubt that Prince Hamlet is a symbolic figure concretising the need to confront actively (or via a passive refusal to act as his father’s avenger) the ramifications of a historically specific ‘state of emergency’ or ‘exception’. One of the origins of the Hamlet myth for Schmitt lies in its embodiment of the perils of decision-making, of resolving to make a fateful decision about the practical significance of this exception. Hamlet’s prolonged and prevaricating struggle to come to such an important decision concerning his stepfather as a murderer-king, fatefully co-determines who truly is to come to personify sovereignty – if only fleetingly as it turns out. Especially significant here is Hamlet’s decision to finally step up to the demands of his situation and seize ‘his’ historical moment by killing the new King, and thus potentially inheriting his rightful throne. The same applies with respect to his lingering death through poison that occurs immediately after his seizure of sovereignty. It is these factors that helped launch the conception of Hamlet as a richly evocative political myth: one that dramatises the unavoidably ‘decisionist’ element of the practice of sovereignty in ways which resonate with Schmitt’s wider political theology. It is possible then

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that Hamlet is to Schmittian political theology what the mythic figure of leviathan failed to be for Hobbes. At first sight, Hamlet appears as a figure initially defined by the familiar genre of tragedy. For example, through an act of murder, in which Hamlet’s mother may have been implicated, he lost both his father and sovereignty over a kingdom that was lawfully his to inherit. However, as an authentic political myth, Schmitt maintains that this figure also transcends and exceeds this literary genre (including classical Greek or Norse revenge dramas). Such ‘transcendence from within’ is made possible through the ‘intrusion’ of concrete historical realities into the play with which Shakespeare’s early audiences would generally have been familiar, and whose implications take it outside the formula and genre of tragedy. In short, the relationship between audiences’ sense of events in the play and actual historical events, mysteries, taboos and dilemmas is a vital symbolic aspect that commentators need to address and take into account if they are to understand how Hamlet has been transformed into a mythic figure. They must recognise that the figure of Hamlet on stage always brings to life both a fictional drama and a parallel mediating cluster of associations including sovereignty drawn from the non-fictional realm. As myth, Hamlet crystallises in microcosm a personalised sovereign-to-be, together with questions of sovereignty. The latter is staged as both a traditional institution and a contemporary practice shaped by a specific normative code. It dramatises in an immediate manner the various dilemmas posed by the traditional requirement within a monarchical constitutional order of securing chains of succession: that is, from, say, one King to his legitimate heir, and from the latter to his or her own rightful successor. Within Hamlet, these issues are confronted in contexts where questions of legitimate succession, and by implication constitutional ‘normality’ more generally, can always be challenged, usurpers avenged, and rightful avengers themselves usurped. Notionally, this play is set in Denmark. However, it is issues of succession to the English throne, and the impact upon this of devastating 16th-century confessional wars, which allows Hamlet to arise as a mythic figure, one who is portrayed as wrestling with a dilemma of more general implications and occurrence. Shakespeare’s play, unlike German classical drama, is both taken from – and then speaks to – the undivided life of ‘the public’, their intersubjectivity and understanding of the fateful implications of questions of succession for their lives. It is this quality that first allowed it to take on the character of an enduring political myth (Schmitt 2009: 53).

Staging political theatre Schmitt implies that one source of, and fuel for, political myths related to sovereignty is an ongoing interaction between the realms of aesthetics and

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politics. Hence, a theory of political myths has to include studies of such reciprocal mediation operating historically within especially well-chosen and specific case studies of literary or other artistic representation. Our understanding of Hamlet as a mythic figure presupposes its mediation by a wider public interpretation of the meanings and political implications of actual concrete historical events. Indeed, for Schmitt, a political myth can arise precisely where the reality of singular historical events resonate with connotations of crisis, exceptional states and trauma. These emphatically ‘break into’ and ‘disturb’ what might otherwise have remained purely literary, artistic or theatrical representations inhabiting a depoliticised realm of ‘pure’ aesthetics (Schmitt 2009: 53). Through making space, voluntarily or otherwise, for the contents of this intrusion of historical realities, the aesthetic realm thereby acquires a necessary sense of realism: one that distinguishes the action on stage from a self-referential world of mere fanciful simulation and play-acting. Prince Hamlet insists repeatedly that he is not to be understood as play-acting with respect, for example, to his intense expression of grief following his father’s death. The aesthetic dimension can thus gain an immediate and intuitive reference to an extra-fictional world of politically consequential actions and reactions. These are located beyond the biographical intentions, theatrical conventions and artistic devices of original playwrights and authors. However, without these aesthetic contributions to the political dimension, the reference to historical realities widely recognised as such, might threaten to render potential myths highly particularistic by confining them to a given time, place and context. Hamlet cannot be interpreted as a factual documentary on the specific plight of King James and nothing else. Such confinement to a single context would have the effect of aborting a common property of viable political myths: that is, their capacity to express more general insights or lessons with which later generations of audience could identify. Schmitt is, perhaps, suggesting that the act of comprehending a myth, including a literary one, needs to be underpinned, at least, by a still imagined or other conceivable historical reality with which the audience can identify as part of its distinctive cultural legacy. This is necessary to allow them to appreciate that behind the symbol, something real is being signified. However, and this is vital, such appreciation of historical mediation is the opposite of reductionism. In particular, awareness of the play’s mediation by historical realities does not lead to the collapse of the aesthetic and artistic elements in favour of a materialist oriented historical documentary, one whose aim is merely to reconstruct ‘what really happened as it actually took place’. The reality of political myths does not lie exclusively in the reality ‘behind’ them so much as both inside and outside of them simultaneously. Such mediation is nothing if not reciprocal and interactive, and thus non-reductive. Without literature’s invocation of a reference to

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external realities, and perhaps by implication to the theatrical and aesthetic aspects of such realities, no figure within a fictional narrative is ever likely to emulate the mythic figure of Prince Hamlet. As already noted for Schmitt, the Hamlet–James couplet is potentially explicable as a cultural symbol for state sovereignty undergoing crisis. This hybridisation of fictional and non-fictional significations within a mythic figure fused with ‘living reality’ is highly significant. It enables us to recognise how the Hamlet myth arose (and continues to arise) precisely at that point when historical time intrudes upon, and interacts decisively with, specific elements of the aesthetic artistic realm. Political myths can thus be generated as a by-product, intended or otherwise, of such hybridisation. Such interaction and hybridisation between fatefully tragic historical events and the intentions of skilled writers allows a figure such as Prince Hamlet to rise above and transcend whatever Shakespeare originally ‘meant’ this central character to signify as a contribution to literature (cf Schmitt 1996c: 21). Hamlet as a literary myth transcends the realm of ‘pure’ literature with its legion of form-giving normative genres, standardised expectations and formulaic sub-genres – albeit only from within this realm and its interaction with actual historical events. As I have already discussed in relation to King James, it is clear that a segment of actual English political history gains expression within Hamlet’s dilemmas. Yet, despite such concrete mediation, he still remains at least partly a literary figure rightly studied in English literature rather than history classes. However, as a mythic symbol of delayed sovereign decisiveness that focuses upon the central figure’s prolonged period of prevarication, Hamlet has attained a more generic force and cultural significance than those purely historical studies concerning singular questions of monarchical succession within early modern England. As a hybrid creature conceived both at and through the interaction of history and aesthetics, the question now arises as to whether the myth of Hamlet as a symbol for the enactment of sovereignty under crisis, can be reduced to either the aesthetic or the empirical realms considered in isolation? (Schmitt 2009: 53). Hamlet is not best interpreted as a flippant parody or purely aesthetic representation of either King James’ situation, or similar crises in personalised sovereignty in general. Watching this play is not mere escapism from having to confront and make sense of concrete political and historical realities. Rather, the presence of the Hamlet–James couplet stages an interpretative fulfilment of its (and their) serious and real theatrical character (Schmitt 2009: 41). Shakespeare most sharply draws his reference to a non-fictional world in the ‘play within a play’ episode of this tragic drama. Here, we have an overlay of a play being staged as an ‘event’ within the wider drama unfolding before the audience, in which Hamlet’s uncle (and newly-acquired Royal

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stepfather) is forced – on Hamlet’s initiative – to watch a play re-enacting his murder of Hamlet’s father. Of course, such a multiplication of ‘artificial’ theatrical devices and special effects could, in another context, have resulted in the emasculation of the figure of Hamlet as a potential political myth and symbol. This figure might have suffered from the theatricalartistic qualities entirely displacing the quasi-transcendent historical core of the tragedy being staged. At the expense of any sense of historical realism, actors ‘playing actors’ could have resulted in an additional level of aesthetic representation and introspection, akin to viewing a painting depicting a portrait artist at work, or the reflection of a reflection in a house of mirrors. Yet, for Schmitt, whenever audiences watch Hamlet, the opposite takes place. The unfolding of this play graphically demonstrates how, under the portrayal of crisis conditions, myths can arise to identify, intensify and even magnify the actual core of tragic action. When Hamlet finally decides to act to resolve his doubts by staging this play within a play, he becomes transformed into a tragic figure. He becomes an avenger who finally asserts his determination to deal ‘head on’ with the maddening, and even taboo, thought that both his mother and uncle were complicit in regicide. To gauge their reaction to having their private crimes made public, he then stages the ‘play within a play’ re-enacting the ghost’s account of how the King was murdered. He thereby confronts them publicly with the details of their alleged scandalous regicide. The King and Queen’s reactions to this episode clearly signalled both their discomfort and guilt. Because Hamlet’s suspicions, stemming mainly from a ghostly apparition of his murdered father, were fully confirmed by their guilty reaction, he graduates to a new position transcending standard family avenger dramas. He comes to embody and symbolise a rightful sovereign power that has been cheated out of his due entitlements. Having freed himself from disabling doubt and prevarication, he now becomes an embodiment of constitutional violence confronting a lawless usurpation of sovereign power. At this point, the taboo over the tragic core of actual historical events relating to King James is most directly addressed and realised on stage. So too is the crisis of sovereignty, or state of ‘exception’, that emerges following this public demonstration of the guilt of the King and Queen. The Prince’s dilemma poses the question of how can a King’s murderer still remain on the throne without triggering a constitutional crisis expressive of something deeply toxic at the centre of sovereign power? And yet what if, on the contrary, the Prince is making a false accusation as part of his own unlawful effort to usurp the throne? By his self-assertion through a newly-rediscovered political will oriented towards a distinctly personal form of sovereign authority, Hamlet is acting politically. He is both invoking and dramatising a constitutional crisis at its most emphatic: one that is loaded with a recognisable ‘core’ of historical reality.

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Interpreted in this way, he is thereby challenging the meaning of the prevailing constitutional ‘normality’, that of a monarchy with dubious claims to constitutional legitimacy (Schmitt 2009: 43–4). In this way, the meaning of Hamlet as a political myth constantly takes shape as an intense revitalisation of our sense of what an undisguised and militant form of sovereignty-in-action can mean. This is particularly apparent whenever sovereignty re-emerges into its own emphatically political element free from mere play-acting simulation, as when the iron fist removes its velvet glove. In particular, Schmitt claims that two different ‘intrusions of historical time’ into ‘the time of the play’ have allowed ‘the figure of Hamlet to become a true myth ... the taboo surrounding the guilt of the Queen [Hamlet’s mother] and the distortion of the avenger’. The importation of the real historical circumstances surrounding King James’s succession constitute the ‘shadows and two dark areas ... around which the play timidly manoeuvres’. Yet, despite the resulting ‘disruption’ of the purely aesthetic element of this drama, which might otherwise have remained caught up in the work of aesthetic representation, Hamlet’s resulting mythic legendary status must still be recognised as ‘a plus’. For Schmitt, it elevates what could otherwise have remained just another instance of a tragic drama, into a genuine and constitutionally significant form of tragedy: one centred around Hamlet as a living mythic figure who – through an act of decision and expression of sheer political will – forces himself to become sovereign (Schmitt 2009: 44, 52). Even if it were to be his final deed, Hamlet decided to confront the traumatic dilemma that had been ruining his life and destroying his sanity. His decisiveness was successful, and yet it culminated in his swansong.

Deciding against indecision An appreciation of the Hamlet myth requires audiences to come to appreciate the necessity for potential sovereigns to end dithering indecision and prevarication. This is particularly the case in contexts characterised by dangerous uncertainties, unavoidable real-life historical dilemmas and the absence of workable criteria and guarantees. A viable bearer of sovereignty, as the Prince ultimately chose to become, must be able to both make and personally commit to a concrete political judgement in favour of X and against Y, knowing that this inevitably entails a risky gamble, perhaps even one made with loaded dice. Such resolute decision-making relies inevitably upon a fallible belief in another equally vulnerable interpretation founded upon cultural representations riddled, at least partly, with mythic qualities. The original source of the Prince’s suspicions was the words not of an unimpeachable eyewitness but rather those of a ghostly apparition. Hamlet confronts this crisis of sovereignty, which is simultaneously both individual

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and political, by eventually taking personal responsibility to confirm his uncle’s complicity, as suggested by his father’s ghost. Upon obtaining proof, the prince then kills the usurper King by means of the same poison the latter has just used to kill Hamlet’s mother. Hamlet’s decision to bring his previous state of prevarication to an end also contributes to his status as a myth concerning how a certain type of sovereignty can arise precisely by means of a resolute act of sheer political will, a refusal of the temptation of irresponsibility when confronted with proof of illegitimate sovereignty. It is Prince Hamlet alone who answers the question of sovereignty undergoing crisis by bringing to a head the latent state of emergency, the thing that was rotten. He does so by asserting that it is he alone who is the rightful bearer of legitimate sovereign power. In this respect, Schmitt implies that the mythic figure of Hamlet teaches us something potentially still relevant about the responsibilities of sovereign decision-making. This is particularly the case within contexts where the comfortably deluded option of remaining indecisive until presented with a perfect, risk-free alternative, one guaranteed to have only predictable and beneficial outcomes, is no option at all. Hamlet’s condition of inner torment and prevarication, which occupies the bulk of the play, dramatises the perennial political truth that sometimes the worse decisions are those in favour of an indecisive and irresponsible deferral of decision. Having no choice but to make a vital decision in the absence of authoritative guidelines, precedents and fully reliable information, remains an unavoidable feature of sovereignty itself. Exercising sovereign power entails coming to terms with a condition of being caught in between competing interpretations of what is now urgently called for, whilst – at the same time – knowing that none of the available options are either compelling or ideal. Sovereignty, as embodied in Hamlet, implies acceptance of having no choice but to exercise such all too fallible discretion. This figure is an instructive case study of a would-be sovereign who finally overcomes the risks of indecision by means of a no less perilous exercise of discretionary decision-making. Hamlet thus invites us to consider anew common assumptions concerning not only the nature of interpretative authority but also the politics of sovereignty.

Politicising Hamlet’s depoliticisation? If we interpret Schmitt’s study of Hamlet in the light of his work on Hobbes’ leviathan myth, then the theme of political symbolism appears, to some extent, to be a common denominator. Schmitt’s approach to Hamlet includes an implicit critique of ideological tendencies towards depoliticisation associated with liberalism within post-war German and European literary criticism. That is, the ‘naïve denial of the political consequences of aesthetic structures’, together with recognition that even the most barbaric political

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movements can possess distinctly cultural underpinnings (Pan 2009a: 72). Schmitt addresses the figure of Hamlet partly as a political myth informed by specific cultural representations. He recognises how this figure contributes to a distinctly political aesthetic: one whose cultural representations and associations connect immediate imagery to the establishment of the characteristic decisions and institutional processes of a specific political and legal order. Mythic representations of this kind not only express, but also actively recreate, cultural meanings with immediate political implications. In relation to Schmitt, Pan argues that: ‘His work presents one of the most elaborate and complete attempts to imagine the link between aesthetics and politics, and his study of Hamlet demonstrates this link by establishing Shakespeare’s tragedy as a defining myth for the developing English public sphere’ (Pan 2009a: 69–70). Specific political circumstances both enabled and constrained what Shakespeare could write and how. They also affected the sensibilities of his immediate audience (Pan 2009a: 71). As already noted, on Schmitt’s reading, the mythic figure of Prince Hamlet is located between the barbarism of the pre-modern and the political nature of the modern political world. This bridging position allows the reinterpretation of a mythic barbarism to help legitimate modern decisionist forms of sovereign authority, akin to how a remedy is justified by reference to the problem it aims to resolve. The Hamlet legend articulates a context of political conflict between competing and incompatible religious and political orientations that require resolution, with the Prince portrayed as part of a tragic, if instructive, symbol of the perils of liberal indecisiveness (Schmitt 2009: 62–7). Schmitt’s thesis here is that the aestheticisation of politics undermines the vitality of the political sphere. However, this claim requires him to not only expressly acknowledge the importance of artistic representation for political myth, but also to resist a specifically depoliticising analysis of them as nothing but an aesthetic phenomenon. In what amounts to an interesting partial hybridisation of politics, visual rhetoric and aesthetics, Schmitt insists upon a model of political myths as aesthetic representations of sovereign authority designed to legitimate such state power, quite literally, before the eyes of its citizens. In this way, Schmitt suggests that myths contribute towards the political constitutional ideals, ethos and orientation of the particular given social order to which they belong. But in this way they also provide yardsticks for its criticism, at least insofar as they contain implications that are, in practice, betrayed, dishonoured or otherwise shortchanged by actual social and institutional practices (Pan 2009a: 86). As a figure of personalised and all too human sovereignty, Prince Hamlet articulates and reminds us of that distinctly pre-liberal conception of politics that existed prior to its technocratic and depoliticising rationalisation. He demonstrates how the concrete decisions needed to resolve real historical

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dilemmas positively embrace, rather than distance themselves from, aesthetic and theological dimensions. This political myth signifies political theology in action. Insofar as it is widely understood as this type of myth, Hamlet, in Schmitt’s view, actively resists a depoliticising aestheticisation; that is, an ideological reduction of politics to a supposedly self-sufficient realm of aesthetics. Instead, his actions stage a representation of the undivided togetherness of these two realms. In turn, Schmitt emphasises Hamlet’s political implications in keeping with his wider agenda and polemical attack upon ideological depoliticisations and neutralisation as characteristic features of liberal ideology (Schmitt 1993). Indeed, the reduction of the interpretation of Hamlet to ‘aesthetic enjoyment’ alone, to a case of mere depoliticised ‘entertainment’, would result in the loss of what is really vital for a fulsome appreciation of its mythic qualities. Amongst these are the topics of our next section: the relation of myth to the ethos of a continuing cultural tradition understood as the life-element of a specific people or group (ethnos). The previous chapter suggested that the authentically political nature of Hobbes’ political myth confronted an opposition with the aesthetics of the leviathan figure, and suffered a self-inflicted form of inbuilt obsolescence as a result. By contrast, and if only fleetingly, Hamlet reiterates and, for us, restores their direct and undivided unity. The theatre of reality appears as the other side of the coin from the reality of theatre. Intelligently interpreted, Hamlet emerges as a re-politicising figure. As such, he stands out markedly from, and contrasts instructively with, the neutralisation technocratic function played by later, mechanistic understandings of leviathan and the leviathan state. Schmitt draws attention to this mutually reinforcing unity of ‘the political’ and aesthetic realms, more specifically, that of already ‘theatrical’ political actions unfolding off-stage, and the politics of staged theatrical productions, an immediate representation of a concrete political world. For these purposes, Schmitt defines ‘lived reality’ as inclusive of fictional, as well as non-fictional, phenomena, both of which can, through their mutual supplementation, articulate ‘elemental’ aspects of our existence (Schmitt 2009: 41, 47–8). Schmitt brings out the distinctly existential element of Hamlet, his decision as ‘to be or not to be’ a sovereign, which Shakespeare had injected into many places of the dialogue. However, Schmitt’s analysis, which places such emphasis upon successive cultural reinterpretations of historically transmitted messages, is certainly irreducible to an individualistic form of political existentialism. It is, perhaps, closer to a phenomenology of the appearance of sovereignty understood as an ongoing institution and collective tradition. Already I have suggested that, on Schmitt’s reading, political myths can arise whenever aspects of historical time, namely, the conditions and forms of an original context, ‘break into’ and intrude upon the distinctly cultural

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sphere of the play of representations, including immediate reinterpretations of historical realities. Yet, such myth-making does not occur without appropriate human action. For instance, skilled myth-makers need to possess the extremely rare ability to extract a core cultural form from their creative interpretation of the significance of actual events, especially their tragedy dimensions. Such a person can then place particular emphasis upon this cultural form. He or she thereby takes it to a higher level of sustained intensity sufficient to allow this figure to operate as an enduring myth. Having made and developed the generic points discussed above, we are now in a better position to appreciate how Schmitt interprets Shakespeare’s Hamlet as a political expression in microcosm of the all too real religious fissures and conflicts within early modern Europe. There was Luther and Wittenberg on one side, confronting the Catholic Maria Stuart and her son James on the other. Given Schmitt’s emphasis upon a non-reductive form of historical mediation, the Hamlet myth is more than a documentary on real historical events. However, it has only been able to attain this status by reference to both its rootedness within their political implications, and by exploiting certain taboo elements of such events: ‘Maria Stuart is to us always something different and more than Hecuba … This royal house was obliterated by the fate of the European confessional split. That history is the embryo of the tragic Hamlet myth’ (Schmitt 2009: 54–5). As Kahn nicely summarises: According to Schmitt, this historical reality ‘breaks into’ the play Hamlet in two ways. First, in Gertrude’s ambiguous guilt, Shakespeare raises the question of the responsibility of James’s mother, Mary Queen of Scots, for the death of her husband. By not making her innocent, Shakespeare caters to the Protestant dislike of Catholic Mary. But, by not making her guilty, Shakespeare supports (at least in the first quarto) James’s bid for the throne – which would be awkward if Mary were guilty. Second, reality breaks into the play in the distortion or ‘Hamletization’ of the revenge hero: in Hamlet’s indecision, Shakespeare figures James I, caught between Catholics and Protestants. In so doing, he gestures toward the wider religious conflicts of the Reformation. (Kahn 2003: 83) This myth emerged from the possibility that, at the time Shakespeare wrote this play, European politics could have been shaped along the lines of a political theology. Schmitt notes that during the first 100 years of the staging of Hamlet, the significance of this play was caught between old and emerging political orders. The latter included the neutralising ideology of the embryonic modern state, which was essentially hostile to ‘heroic’ tragedies, such as Hamlet:

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In these 100 years [1588–1688], a new political order, the sovereign state, developed on the European continent from the neutralization of the confessional civil wars. [This is] an imperium rationis as Hobbes terms it, and no longer a theological realm of objective reason, as Hegel says, and its ratio made an end to heroic law and heroic tragedy. (Schmitt 2009: 65) The death of King Hamlet at the hands of his own wife and brother places the play in the symbolic context of an unfolding crisis of state authority. It signifies a classic state of ‘exception’ where – according to Schmitt’s more general theory – substantive sovereign power arises from its slumbers to make essentially political decisions (Schmitt 1985: 3–7). His earlier study of Hobbes is especially relevant here (cf Schmitt 1996b: 53). Prince Hamlet does not, however, ‘resolve’ the historical crisis of the divisive schism stemming from the Reformation between Lutheran Protestantism and Catholicism. On the contrary, Shakespeare makes this character not only draw upon this schism as a source for tragic action, but also confronts it as an immediate intelligibility granting context. In this way, Shakespeare renders this situation’s condition of crisis and religious war, together with the various complex dilemmas that stem from these, all the more emphatically present to the audience as a precondition for understanding the nature of decisive action (Schmitt 2009: 27, 30, 53). As a political myth, Hamlet articulates in a particularly intense manner one aspect of this schism and fissure in its subjective immediacy. He not only re-enacts the tragic dramatic quality of one specific individual caught up in this particular religious conflict, but also does so as a more general and instructive case study of the wider challenges confronting any nation – or indeed an entire continent – confronting a divisive fissure, a ‘clash of civilisations’ even. The figure of Hamlet undergoing trauma reminds the English and European audiences of this play that they too belong to nations whose collective memory includes precisely such a historically concrete coming to terms with this divisive aspect of a shared historical legacy. Their present and immediate future contexts could also pose a similarly unavoidable challenge requiring a decisive confrontation and resolution. Schmitt implies that the expression of an overlap between politics and aesthetics amounts to one explanation for Hamlet’s continuing success as a still relevant political myth. By its generality and articulation of easily recognisable features concerning the dilemmas confronting Hamlet’s ultimately decisive exercise of legitimate sovereign power, it strikes a chord with the cultural life-world of audiences. This involves an aesthetic, even vitalist, depiction that relies upon audience’s recognising the enduring truth of a qualified and nuanced form of ‘political decisionism’. In short, Prince Hamlet’s capacity to invoke contexts and dilemmas that resonate

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with successive generations of audiences perhaps explains the remarkable success of Shakespeare’s myth. Hamlet certainly highlights something primordial about what it means to be human. In particular, this figure evokes a sense of the human condition as one of actual, or at least potential, conflict between competing family members, social groups, ideologies, nations and even entire imperial powerblocs. Here, the Prince shows how choices can no more be infinitely deferred by means of a strategy of mere play-acting simulation, or sham responsiveness, than can the potentially tragic consequences of both action and inaction be necessarily avoided. By reference to the implications of a specific historical schism associated with the Reformation, the figure of Hamlet has thus come to exemplify in the eyes of successive generations one aspect of the all too real and conflictual aspect of our common human condition. Everyone born into, and then brought up by, a family has firsthand experiences of what human conflict can mean, albeit not necessarily on the scale of Prince Hamlet’s. As a result of such empathetic identification by audiences, the mythic figure of the Prince rises above the status of a merely ‘literary’ character confined to a depoliticised aesthetic realm. Instead, he emerges as a political symbol of sovereign power who has achieved the elevated status of a potentially instructive phenomenon, a ‘true myth’, whose lessons can, as demonstrated by its endurance for over 400 years, never become outdated (Schmitt 2009: 44). This distillation of, and subsequent emphasis upon, a core element of primordial conflict stemming from our nature as political creatures, contains a key aspect of Schmitt’s wider conception of the interpretative source of successful political myths, that is, those spanning the concrete sense of historical reality possessed and reiterated by countless authors and successive audiences. These various interpretative semiotic performances continue to reiterate contrasting historical worlds within which the figure of Hamlet can – by virtue of conjuring up an invariant primordial condition that continues to appear credible – resonate in various and unpredictable ways (Kahn 2003: 83). Part of a successful political myth’s enduring appeal lies in its capacity to variously symbolise something ‘primal’ concerning different existential modes of being human, and to do so in an especially graphic and visual manner: The mournfully dressed melancholy Prince has become in the end a primal image of the human condition. The symbolic force of this figure has produced an authentic myth that finds its justification in a process of inexhaustible transformation. The eighteenth century poets … began this process by making their own myth out of Hamlet. In Goethe’s interpretation, Hamlet becomes a Werther who is destroyed by the weight of an all too heavy burden. The nineteenth century made

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Hamlet into a passive anti-type of the active Faust and, at the same time, into a combination of genius and insanity. … Freud put forth the assertion that every neurotic was either an Oedipus or a Hamlet. (Schmitt 2009: 7)24 In this statement, Schmitt articulates a number of interesting ideas and possible distinctions. These include the distinction between ‘authentic’ and ‘inauthentic’ myths, and the active role of subsequent culturally-rooted reinterpretations as a source for the vitality of ongoing myths. In addition, he re-affirms the potentially open-ended and self-replicating nature of myth-making – even in relation to a single literary figure that is necessary for their confirmation. It is precisely through the inexhaustible abundance of ever new interpretations and interpretive possibilities of Prince Hamlet, his ability to be staged differently than before, which re-affirms his mythical qualities. This ‘reiterable’ quality allows audiences to totalise and recapitulate the current constellation of meanings of a mythic figure in the structural form of X as Y, X as Z etc. Furthermore, Schmitt’s reference to the ‘look’ of Hamlet implies, perhaps, that distinctly aesthetic qualities, a specific visualisation of a graphic image, can be essential to at least the initial formation of a figure’s specific mythic qualities. Finally, in this context, Schmitt suggest that myths, like wellchosen metaphors, can help reveal, or at least graphically illustrate, specific claims-to-truth that are not themselves mythical, such as would-be scientific propositions of psychology in relation to neurosis.

Hamlet’s audience as co-authors? Compared with his earlier studies, Schmitt’s study of Hamlet is far more attentive to the interpretative dynamics, pre-conditions and vital contribution made by the contexts of the play’s reception and the reiteration of different versions of its presence by successive generations of audiences. We have already explored Schmitt’s contention, made in relation to Hobbes’ leviathan image, that ill-chosen mythic symbols have a doubleedged quality: one that can turn counterproductive at the hands of both their intended audience and subsequent ones. At this point, it is sufficient to recognise the centrality of such an extended audience for Schmitt’s theory of myth. The audience’s interpretative reception of Hamlet represents the soil in which, given the ‘right conditions’ (something that cannot always be fully specified in advance), a literary figure can graduate to a legendary myth resonant with political and constitutional implications.

24  See also Schmitt 1996b: 7.

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Schmitt insists that historical mediation also takes place through the interpretative work involved in cultural reception. Here, the fictional aspect is typically and consistently understood by audiences partly through the lens of their prior interpretation of ever-changing historical realities. They interpret this play as an imagined instance, a projected version and variation upon, something actual and already known. Traumas arising from monarchical succession and religious wars had, of course, blighted English life for many decades prior to the first performance of Hamlet. For Schmitt, this play’s ability to make and sustain a connectedness to familiar historical realities with which audiences have always, to some extent, been able to relate, is highly significant. Without it, Hamlet, which is a lengthy and by no means tabloid populist work, could never have obtained the status of a legendary myth. Hence, where interpreters of the meaning and implications of this myth resort to exclusively psychological and other subjective themes, this can never be a substitute for addressing the significance of the: [O]bjective situation from which the drama emerges … the stage character Hamlet is not completely subsumed by the mask. Intentionally or instinctively the conditions and forms of the original context within which the play was written have been brought into the play, and, behind the stage character Hamlet, another figure has remained standing. The spectators of that time also saw this figure when they saw Hamlet. Otherwise Hamlet, the longest and most difficult of Shakespeare’s works, would not also have been his most popular. We too can recognise this other figure today ... (Schmitt 2009: 20) In one respect, the significance of Hamlet as a political myth is neither exclusively subjective nor entirely objective, but rather ‘intersubjective’, in the sense of a cultural construction rooted in the ever-shifting abstraction and recontextualisation of specific historical events whose implications overshoot every instance of their (re)interpretation. The resulting ‘core of tragic action’ within Hamlet thus selectively mines the social psychology of its audience. It does so by creating an overlapping ‘common ground’ needed for the invention, reiteration and preservation of an effective myth (Schmitt 2009: 143). The intrusion of actual historical events provides the escapable reality, a ‘living actuality’, to the play’s tragic core, with which audiences can identify as something credible within the horizon of their own cultural framework of interpretation. Here, Schmitt carries forward the hermeneutic idea of ‘fusion of horizons’. That is, how any genuine understanding of, say, the Hamlet myth requires an interactive process of ‘negotiation’ between the interpretative horizons of a transmitting cultural tradition, and those of the bearers of a

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contemporary recipient culture, resulting – at best – in their partial ‘fusion’.25 This ongoing interpretative negotiation of Hamlet’s significance and implications by an audience caught up in its myth-making is a potentially creative – more precisely ‘re-creative’ – process. Its explanation entails the prioritisation of neither constituent part, nor the reductive collapse of the social psychological element of reception into the objective part of cultural transmission, or vice versa. On the contrary, Schmitt claims that if such undialectical reductionism prevailed, it would make it impossible to account for how a literary figure can ever become an authentic, living myth. Furthermore, Schmitt’s study of Hamlet criticises efforts to contextualise a work embodying a specific myth exclusively in terms of the material circumstances of its original creation alone, whose objectification effectively reduces its significance to such factors at the expense of the contributions made by contexts of interpretative reception and transmission. The presumption here is that if this play originally was meant to signify X when it was first written and performed, then X remains its true interpretation for all time to the exclusion of all possible alternatives. Schmitt rejects this standpoint by arguing that the significance of any vital or living mythic figure evolves over time as ever new interpretations are added to established ones, whose significance, comparative ‘weight’ and implications also change with alterations in the orientation and divergent interpretative frameworks of its audience. It follows from such power of reiterability to which successive audiences contribute massively that, for Schmitt, there can be no singular and fixed ‘essence’ to what a mythic figure such as Hamlet can signify. Hence, despite its intentions, such ‘historical objectification’ cannot ‘put a stop to the endless stream of new interpretations of Hamlet. From different, and often even opposing, sides, Hamlet continues even today to function as a living myth … of inexhaustible mutability … the Hamlet myth has not yet lost its power’ (Schmitt 2009: 8). In addition, newly-forged myths emerge into the cultural-interpretative realm. However, these appear as already pre-interpreted in relation to

25  Gadamer’s hermeneutic criticism of Schmitt’s study appears to underestimate this common ground with Gadamer’s own position. It exaggerates the extent to which the taboo of the Queen is decisive by assuming – against much evidence to the contrary – that Schmitt’s work is naïve concerning wider questions of interpretative indeterminacy within textual transmissions including the judicial reinterpretation and application of law. Gadamer suggests that Schmitt’s analysis operates with a series of either/or dualisms, which in fact he regularly challenges with quasi-Hegelian dialectical argumentation (Gadamer 1989: 497–9). By contrast, Schmitt’s approach makes best sense when interpreted as a continuation and supplementation of a hermeneutic sensibility.

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earlier, and longer established ones, myth-charged themes and entire genres. These may include ‘tragedy’, ‘revenge dramas’ etc, with newemerging myths pre-defined for audiences as probable exemplifications of one or more legendary ‘type’, which delimits a range of variations within the overall theme (Schmitt 2009: 11–12). Hence, the type of reductionist objectification that Schmitt objects to, which collapses the meaning of myths to that bestowed upon them at the moment of their original formation, risks taking scholarship on myths down a ‘hopeless dead end’ analogous to a merely psychological, or psychoanalytical, interpretation of Hamlet (Schmitt 2009: 9). The capacity of the historical trajectory, or ‘journey’, of authentic living myths to traverse different epochs and recontextualise themselves anew in a wide range of novel and very different contexts of application, itself enters into the process of deciphering their significance for contemporary audiences. This capacity, rooted in the interpretive context of reception, is an element of their inexhaustible quality, a source of their continuing vitality (Schmitt 2009: 31). Schmitt gives a specific example relating to the changing sensitivity to questions of religious conflict. Given the extent to which ‘the European spirit has demystified itself’, the question of the role of religious conflicts between Protestantism and Catholicism, which would have been a highly sensitive topic during the initial writing and early performances of this play, is clearly rarely an issue in most 21st-century European productions (Schmitt 2009: 10). Presumably, predominantly secular contemporary audiences will not be able to personally identify with the religious subtexts of Hamlet’s original historical context in a way that was possible for its original London audiences. Hence, it might be realistic to expect that, in contemporary London stage productions, the Hamlet figure is now functioning as a largely secular myth: one which is free of its earlier and controversial religious connotations. Schmitt implies that its original invocation of issues and dilemmas culturally defined within a concrete European context as real, disturbing and challenging, is especially significant. It represents one of the possible explanations for how it has been possible that ‘such a strong and canonical myth as that of Prince Hamlet could have emerged in Europe and from out of the essence of the European Spirit. What caused a play in the last years of the Elizabethan age to produce that rare case of a modern European myth?’ (Schmitt 2009: 10). Furthermore, even a mythical symbol that is embodied in a single human being, such as the Prince’s character, does not restrict its subsequent application to contexts that are directly analogous to those of its original formulation. On the contrary, Schmitt argues that this mythical idea and symbol of irresolvable internal turmoil has been deployed to characterise the unfortunately fractured and conflicted position of an ‘entire nation’, such as 19th-century Germany (Schmitt 2009: 9). In other words, what

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began as a study of an internally conflicted Prince unsure, for an extended period, whether to kill the suspected murderer of his father, permits audiences to transpose it in order to characterise contradictions affecting a collective entity. An audience’s consciousness of Hamlet as a political myth also involves an ongoing fusion of temporal horizons. As already noted, Schmitt argues that during the staging of Hamlet, actual historical time intrudes upon the fictional time of the events depicted before the audience. The possibility of successful myth-making arises, at least in part, from the intersection and interaction of these temporal realms. However, these are clearly different temporalities. Unlike non-fictional events, everything that happens in every fictional narrative cannot be consolidated together in terms of a definite ‘before X but after Y’ overall temporal pattern of an unfolding world history. Given this temporal disconnect, it is absurd, for example, to ask whether the events of one fairy story happened before, simultaneously with, or after those of another. By contrast, this question is entirely sensible, perhaps even unavoidable, with respect to actual historical events, even those taking place on different continents and lacking any immediate connection. Here, I have in mind the Reformation in particular. The questions posed by the fraught succession of King James to the English throne presuppose for their intelligibility precisely a contextualisation of real events within a ‘before X, during Y and after Z’ temporal structure. But, perhaps, the main point here is that during the audience’s reinterpretation of the Hamlet myth, a fusion of these structurally different temporalities takes place. In other words, aspects of their understanding of non-fictional events, such as the Reformation and its implications, also come into play as a co-determinant of the play’s meaning. It has already been shown how Schmitt argues that myths occupy the inter-zone between many of the traditional either/or dualisms, and thereby call into question the generality of an interpretation of them reliant upon the superimposition of such either/or dichotomies as part of a reductionist approach to cultural analysis. How though does the cultural coming-intopresence of the Hamlet myth for successive audiences illuminate the traditional separation of subjective from objective dimensions of livedexperience? The myth of Hamlet certainly appears within the subjective consciousness of someone who watches this play, but does so as a phenomena that is transcendent of their presence to such purely individualised consciousness. As a political myth, the implications of the figure of Hamlet are not something I can ever claim to have subjectively dreamt up only for myself, having, for instance, just watched this play for the first time. When I am part of the audience, the mythic figure of Hamlet can only appear to, and for, me as something not exclusively mine. That is, as a pre-constituted topic overflowing with possibilities of realised and potential meaning, and which has already attained the status of an enduring legendary myth for

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countless other persons in the past and present, a state of affairs that may well continue into the still emerging future. It follows from Schmitt’s broadly phenomenological theory that expressly fictional cinematic depictions of by now legendary events and symbols within legal culture, such as many famous ‘courtroom dramas’, ought not, perhaps, be viewed exclusively as works of art, as objects of and for the pure imagination alone. They cannot be reduced to objects-for-a-subjectivity. The ‘audience’ of such mythic depictions should not to be treated as if it were a blank and inert slate upon which these fables can delight in selfexpression purely upon their own terms. The reiteration of such depictions cannot take place without a constant process of negotiation with the interpretative horizons of these myth’s present day recipients, who thereby rework their transmitted meaning and implications as partly, but only partly, ‘their own’. One implication of Schmitt’s analysis is that political myths cannot be treated as if they are self-contained and timeless fictions to be analysed purely as such. On the contrary, Schmitt claims that such presumed insulation of fiction from non-fiction, the assumption that their relationship is that of an either/or dualism, is challenged by the fact that ‘an element of reality flows into the performance from the spectators’ actual knowledge of the myth. Tragic figures … are not imaginary but actually exist as figures from a living myth that are introduced into the tragedy from an external present’ (Schmitt 2009: 46). In other words, insofar as a tragic figure endures as a ‘living myth’ and legend, then its qualities stem partly from those interpretative processes arising during its contemporary reception. This figure will, thereby, constantly accumulate fresh qualities as its audiences undergo, for example, generational changes of cultural orientation and historical alterations of their ‘common sense’ knowledge and deep-rooted assumptions, whilst loosing earlier ones now deemed to be anachronistic. In this respect, the authors of myths include, as co-authors, their audience. Subjective reductionism is rebutted by the presence of mythic figures as something already culturally shared, historically-mediated and, in this sense, ‘objective’, and whose trajectory is likely to continue into the frame of reference of future generations. Political myths do not exist only in the minds of their believers. Instead, Hamlet appears as a legendary figure that enhances, in the sense of becoming ‘elevated’ to a higher level, its enduring cultural presence and ‘objective’ (trans-subjective or intersubjective) significance. As enduring institutions of our cultural tradition, legendary myths are part of the ‘living actuality’ and reality of the social world around us and our subjectivities. Only once this transcendence with respect to individual subjectivities is appreciated, including that stemming from their reference to real historical events, can we grasp the conditions of possibility of such myths. In particular, Schmitt claims: ‘In distinguishing Trauerspiel and tragedy, we can recognise that incontrovertible core of a singular

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historical reality that transcends every subjective invention and can then understand its elevation to myth’ (Schmitt 2009: 53). Far from being reducible to innermost subjectivity, political myths actually supplement the material aspect of reality with an additional and distinctly cultural presence. Through myth, actual persons and events, such as the traumas of King James or the World War II Dunkirk rescue, secure an additional presence within those cultural traditions that embody and articulate their significance. For every member of a cultural tradition, myths are part of their surrounding life-world or ‘environment’. The inner/outer dichotomy that has played a role in the leviathan myth finds little support from Schmitt’s analysis. This, on the contrary, suggests that they are neither wholly subjective/internal, nor entirely objective/external, but rather – as co-joining mediating phenomena – both together. The additional quality of emergent meaning positively overshoots both their immediate cultural presence and historical reality – at least when considered in isolation. On the other hand, events, including those of a traumatic or otherwise tragic kind, both belong to – but also necessarily exceed – those cultural representations that mythologise them into legends. Schmitt’s analysis of Hamlet calls into question familiar either/or distinctions between reality and myth but does so in a way that rejects reductionism and re-affirms a broadly realistic approach. For all his attention to the socially constructed and culturally transmitted quality of political myth, Schmitt never calls into question whether the factual events in relation to King James, analogous to those Shakespeare portrays in Hamlet, actually took place. Nor does his analysis doubt that it is both possible and viable to distinguish between such historical realities and fictional, literary narratives that exploit them, and thereby potentially attain the elevated status of political myth. The father of King James really was murdered. By contrast, the actor playing Prince Hamlet’s father only simulated his death on stage. By implication, Schmitt criticises that which today we might term a ‘poststructuralist’ over-extensions of the category of myth to embrace the content and presuppositions of all narratives. The realist counter-argument, confirmed in daily-lived experience, is that there is something obstinately real outside of such narratives. The problem with the over-extension of the category of myth to the point where it swallows up that of reality is that it undermines the myth/non-myth distinction altogether, on which the very meaningfulness and distinctiveness of ‘the mythic’ itself depends (Schmitt 2009: 46). For example, whilst our appreciation of a historical drama such as Hamlet certainly presupposes an element of empirical historical knowledge and understanding amongst its audience, this can often be no substitute for also understanding its mythic implications. The two occupy distinct, if parallel and mutually mediating, realms equally demanding of our recognition and respect.

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The audience of such dramas continues to possess mythic understandings of relevant Kings and Queens, including various legends associated with their names, even when they have no reason to activate these whilst watching a more straightforward type of historical drama. Hence, there is reason to doubt any claim that, in a distinctly modern context, objective historical knowledge has fully replaced customary understandings of various myths. Unlike classic tragedies, including Hamlet, such historical dramas need to invoke mythic images in neither their narratives nor their underlying presuppositions. The upshot of Schmitt’s claims and arguments so far is that the distinctive and specific qualities of the category of myth have to be respected. And this, in turn, requires us to recognise a real, if contingent, myth/non-myth distinction. Making such a distinction is needed to prevent the former’s grotesque and self-defeating over-extension that risks obliterating all differentiations (Schmitt 2009: 47). Our understanding of the significance of political myths must resist their reduction to adopt either an entirely subjective phenomena, or to a purely ‘objective’ (that is, extra-subjective) dimension of historical events and processes. Instead, myths are reiterated through an ongoing interaction and negotiation between the changing modes of reception by specific audiences on the one hand, and the interpretative horizons of transmitted objective events and on the other. For instance, in Hamlet, a major Royal scandal relating to King James comes into a confrontation with literary-aesthetic representations. As already discussed, this type of confrontation is itself mirrored by the staging of a ‘play within a play’, the Mousetrap episode where the new king is forced – on Hamlet’s initiative – to watch a discomforting scene identical to his own alleged murder of the previous King. From a Schmittian perspective, the acting here is not, however, the ‘pure’ play-acting conjuring up a depoliticised aesthetic realm virtually for its own sake. Instead, it is rather a concrete representation that actually intensifies the reality of that fateful type of political action Hamlet exemplifies. Such action reveals that he has finally decided who are his real friends, neutrals and enemies, and then responded to his conclusion with fateful, indeed ultimately fatal, decisiveness (Schmitt 2009: 43–4). It follows that, within definite limits, it always remains possible for historians to seek to compare mythic popular depictions on the one hand, with admittedly fallible and interpretatively constructed accounts of ‘what actually happened’ on the other, which are based upon the best available historical evidence. It remains a real possibility to recognise, for example, that the enduring British propagandist myth of the ‘Dunkirk Spirit’ was an ideologically useful distraction from what might otherwise have appeared as a humiliating military defeat and chaotic retreat. Schmitt is sufficiently realistic and empirically minded not to allow mythic depictions of reality to encompass and exhaust the category of reality itself. There is an outside to

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myths, a world outside their influence and control, albeit one rendered intelligible partly through a cultural framework containing express and implicit mythic and non-mythic beliefs of various kinds. It follows that whatever other objections Schmitt’s thesis attracts, it cannot be accused of reducing all narratives about real historical events to the status of myths by failing to respect the crucial myth/historical fact distinction. He certainly respects this distinction in principle, even whilst recognising that the reinterpretation of historical factual events may itself be shaped by various mythic beliefs brought into play through the interpretative agenda of historians. This implies a distinction between four interrelated elements. First, by the fact that the United States dropped nuclear bombs on two Japanese cities in August 1945; and, secondly, the various interpretative depictions of these events and their consequences, some of which may be highly mythological and propagandist. Thirdly, there is the question of the legitimacy of historians’ quest for a non-mythic interpretation of this deed based upon an accurate reading of the most reliable available sources. The final element is the presence of mythic and non-mythic elements within the interpretative scheme such historians necessarily superimpose upon actual historical evidence, whilst also seeking to make good sense of them. The various distinctions and claims of Schmitt’s cultural theory of political myths can be illustrated with a range of other examples. Operating at the interplay of reality and cultural representation, sporadic – if selective and self-interested – ‘generous’ acts by gangsters and drug dealers can, thereby, transform their cultural status into that of ‘Robin Hood’ figures – at least within their immediate local communities. For a Schmittian approach, playwrights (and presumably film producers) can seize upon specific historical events, which in themselves may not have been widely experienced at the time as particularly interesting. However, through their cultural representation in mythic legendary terms involving a confrontation with a tragic context with which audiences can subjectively identify, playwrights can actively ‘make a good story’ out of them. In turn, whatever emerges from this myth-making process can then potentially operate as supposedly generally instructive fables, myths and legends expressive of a specific ethos. Those who identify with this ethos can modify their chosen life-style so as to respectfully emulate or improvise around it during their ‘real-life’ practices. For instance, we can recall how ‘the good Samaritan’ fable typically operates as a generic cultural symbol for inspirational acts of altruism, whilst mafiarelated gangster myths can be (re)interpreted so as to open up a dangerous world of ‘gangland adventure’ that, for example, young men may seek to reiterate within their own lives.

Chapter 7

Political myths underpinning democracy

Schmitt insists that the public legitimation of the authority of democracies is as important an ongoing institutional task as it is for either monarchies or dictatorships. How does Schmitt’s interpretations of political myth connect to the project of promoting and stabilising democracy? The opening premise is that the legitimation and acceptance of any mode of governance is distinctive. It is different in kind from those ultra-rationalistic and strictly cognitive processes that supposedly take place during the verification, or falsification, of a scientific or philosophical hypothesis through the gentle force of better argument based on compelling evidence. Whether such a belief is itself largely mythic is not at issue here. The point, all too clear from the 20th-century history of European and Latin America, is that many distinctly extra-cognitive interests and concerns are relevant to basic constitutional choices. These include life and death issues and commitments to a range of mythic beliefs. Such interests are affected by a nation’s collective choice in favour of, say, direct democracy, as opposed to monarchy (constitutional or otherwise), dictatorship (fascist or Marxist), parliamentary democracy or theocratic modes of governance. For example, consider a situation where a range of knowledgeable international experts unanimously suggested a temporary period of extraconstitutional dictatorship through a coalition government of ‘national unity’ because this offers the best way of ending a murderous civil war or economic crisis, and thereby re-establishing relative peace, order and security. Such a purely cognitive form of judgement would, however, represent but one amongst many other factors that citizens of that state would probably have to weigh up before casting their vote in a referendum on this matter. A range of other emotive, religious, moral and cultural factors – including beliefs concerning the ‘true nature’ of that particular people’s established political culture (and perhaps religious background) – may well press in the opposite direction. That is, of preserving even a chronically ineffective, or deadlocked, form of democratic governance analogous to the last years of the German Weimar Republic. In other words, when faced with such a fundamental decision where the future of democracy is at stake,

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a range of cognitive and extra-cognitive, rational, non-rational and irrational beliefs can be expected to come into play. Any suitably realistic form of constitutional theory must both recognise and account for these factors. In turn, this requires us to take seriously the nature and rhetorical impact of specific political myths upon the practice of democratic decision-making. It may follow from this that if would-be defenders of democracy act as if the primary or sole grounds for their preferred mode of governance are academic ideas widely accepted by experts, then they could be fatally undermining the substance of their own position. The risk here is that such defenders of democracy will, because of their rationalistic prejudices, fail to extend their defence into less cognitive – but equally decisive – spheres. These include the substantive power of customary shared understandings operating within particular families, neighbourhoods and regions. Other factors may include: political rhetoric, expectations of benefiting personally from political patronage, localised tribal attachments to a specific leader (perhaps on the grounds that he or she is ‘one of us’, a ‘man of the people’), and – most relevant for present purposes – the affective power over citizens of various mythic beliefs and cultural symbols. Arguably, it is here that we must recognise the contribution of mythical images and symbolism to the aesthetic dimensions of such legitimation. The latter must prove themselves capable of capturing the imagination and crystallising the affections of citizens as distinctive emblems expressing ‘who we are’, and that territorial political unity to which we feel ourselves as belonging to in various affirmative, neutralised and oppositional modes. An inspirational image and symbol of democracy must constitute a sum that is greater than the totality of all its various and typically mechanistic parts. The idea of either a constitutional monarch or an elected President serving as both a ‘ceremonial figurehead’ for, and a distinctive emblem of, one’s particular nation, is needed to effectively render the nation publicly visible, legible and present to itself in a symbolic manner (Schmitt 2003: 349; Pan 2009a: 83). When this leader speaks, he or she gives voice to the nation itself. The emblems of the state as a whole, including its name, need to cohere with and symbolise particularistic myths of ‘this nation as our nation’ (Schmitt 2003: 348). This is needed if they are to exert the degree of ‘visibility’ necessary not only to differentiate one state from all others but also to distinguish it from other large-scale corporate bodies. In this context, a Schmittian approach provides a useful corrective and supplement to the gaps created by the one-sided rationalism of more conventional approaches to democracy. It does so by acknowledging and theorising the role played by a range of other, extra-rational factors as determinants of both pro- and anti-democratic positions, including most notably the rhetorical power of political myths relevant to the stabilisation of democratic modes of governance. Here, we can identify an important rationale for public law scholarship studying specific political myths. These

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include those that press in a distinctly anti-democratic direction, but whose limitations and rhetorical appeal also need to be optimally, and perhaps urgently, understood. Schmitt’s critical analysis of political myths as an ‘arbitrary historical force’ has the advantage of recognising their potential to exert a dangerous influence within democratic contexts in favour of tyrannical forms of governance (Schmitt 1988: ch 4). A type of legal scholarship oriented towards the defence of democracy requires an insightful knowledge of the methods of the latter’s most committed enemies, their strengths, potential rhetorical sources of mass appeal, blind spots and limitations. In this context, a refusal by constitutional scholars to take these issues seriously on the basis that the rationalism of mainstream legal methods of a broadly positivistic nature are incapable of answering them, is simply perverse, and potentially counterproductive. It is likely that only flawed and grossly compromised academic studies of constitutional affairs can thrive under a dictatorship. By contrast, Schmitt suggests that any viable legal theory of democracy must account for the processes through which democratic sensibilities and expectation first emerge, and take root as an integral part of a prevailing interpretative framework, before becoming largely taken for granted amongst citizens. He proposes an approach resembling a qualitative social psychology of actual and potential popular attachments to democratic values. In this context, it may be useful to address his discussion of the rhetorical power and achievements of specific mythic beliefs, cultural symbols and images. Amongst these are analyses of the position of a democratically elected President within the Weimar Republic (Schmitt 1931) and various public mechanisms of ‘direct democracy’, such as public rallies, referendum and votes taken at mass meetings and public rallies (Schmitt 2008b). At the same time, Schmitt’s extensive studies of the institutions and constitutional doctrines of the Weimar Republic are both predicated upon, and take for granted, the continuation, perhaps in a more coherent and revised form, of an essentially democratic form of this constitutional settlement. In this respect, Schmitt’s late Weimar writings remain ‘enchanted’ with democracy, including a number of its underlying mythic beliefs, commitments and symbolic figures. Given this weighty pre-investment and presuppositions, it is hardly surprising that his work also takes seriously and critically discusses the role of distinctly modern political myths relevant to questions of state legitimacy. In particular, he addresses how two major anti-democratic movements, revolutionary socialism and – less extensively – Italian fascism under Mussolini, have, with varying degrees of ‘success’, deliberately created and deployed specific political mythic beliefs and symbols (Schmitt 1988: ch 4). There is a real danger here that needs to be confronted at the outset. Schmitt’s discussion of such ‘dangerous irrationalist myths’ exerting an

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‘arbitrary’ and ‘unpredictable’ historical force includes extensive paraphrasing of, for example, George Sorel’s syndicalist myth of the general strike. If it is read and quoted carelessly and out of context, snippets of Schmitt’s analysis could be interpreted as a simple endorsement of Sorel’s theory and its specific socialist myths. The same point applies to his discussion of right-wing counter-revolutionary myths, including those of Mussolini (Schmitt 1988: ch 4). With the benefit of the 20/20 vision that accompanies hindsight, it is possible to strongly criticise Schmitt here. In particular, to highlight a failure to carefully distinguish between Schmitt’s descriptive-analytical expositions of Sorel’s main claims for example, from what is distinctive in his own approach to political myth. As a result, it is far from clear which aspects of Sorel’s account are compatible with a remodelled Schmittian analysis. It is important to emphasise that the essential thrust of Schmitt’s theory of political myth in the late modern period remains supportive of democratic values as an inevitable and necessary ground for state legitimacy. Indeed, many disenchanted contemporary readers may find such acts of faith excessively naïve, Eurocentric and lacking theoretical radicalism. Schmitt’s careless discussion that fails to distinguish commentary upon ‘irrationalist myths of direct action’ from his own distinctive position, has certainly proved problematic. It makes it all too easy for defenders of anti-democratic movements, including Marxist-Leninism and Fascism, to seize upon and quote a sentence of his work here and a paragraph there – and misinterpret these as if they provide clear support for their own positions. A similar point can be made of his criticisms of the self-undermining mythic underpinnings of parliamentarism. As already noted, liberals all too easily misunderstand this as a destructive blanket critique of liberal constitutionalism, even democracy itself (cf Scheuerman 1995). Fortunately, it is now becoming clearer that Schmitt’s Constitutional Theory provides a clear rebuttal to critics, such as Scheuerman, who confuse his critique of how the practices of parliamentary forms of liberal democracy have lost public credibility because of their failure to live up to the principles that alone justify them, with an essentially anti-democratic stance (cf Scheuerman 1995). Such confusion and conflation of part with whole is akin to claiming that my dislike of computer-generated disco music necessarily means that I have no musical taste whatsoever. Indeed, the recent scholarship of Mouffe (1999b) Kalyvas (2008: 146–62) and Pan (2009a: 86–97) has challenged – and at least partly overcome – this dubious aspect of earlier scholarship on Schmitt. Such displacement has occurred through their recognition that Schmitt’s Constitutional Theory constitutes a genuine, if not entirely successful, attempt to provide a credible and robust model of democracy. The latter is founded upon a cultural theory of representation that aims to be more robust than the liberal-democratic alternative. In particular, Schmitt provides both

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rational theoretic and mythic endorsements of this revised approach to democracy by linking sovereign decisions to a scaled-down and pragmatic theory of popular sovereignty. Institutionally, the latter is rooted primarily in the office of a President equipped with not only rational but also symbolic and legendary forms of authority. These, in turn, connect a continuing cultural tradition of stable values with ongoing events within the public sphere (Schmitt 1932/1988). Schmitt’s popular sovereignty and cultural model of democracy, whose character will be discussed further below, contrasts markedly with those of both Marxism and liberal constitutionalism. He suggests that both these traditions engage in myth-making by superimposing ‘an entirely general ideal concept’ upon democracy. In turn, this results in the ‘greatest lack of clarity’ because the concept is grossly expanded at the cost of its specificity to embrace ‘everything that is ideal, beautiful and appealing … justice, humanity, peace and international understanding’. It also leads to its confusion with the aspirations of distinct and incompatible political movements. This over-extension and diffusion even allows communists, anarchists, liberals, conservatives and even monarchists to promote themselves as ‘democratic’ movements in some conveniently vague sense (Schmitt 2008b: 257). Schmitt’s study of parliamentary democracy complains that ‘a feeling for the specificity of principles seems to have disappeared and an unlimited substitution to have taken its place’. Such over-extensions are also dangerous because they render the concept of democracy so elastic that it becomes almost meaningless, and thus an ineffective benchmark standard. Schmitt’s critique is not entirely negative or destructive. On the contrary, it affirms a more realistic and contextually grounded conception of democracy, which is founded upon the principle of a citizen’s equal rights within a nation state: ‘a precise and substantial concept of equality’ (Schmitt 2008b: 257). Schmitt’s model of democracy can be reasonably criticised for being unduly narrow, incomplete and, perhaps, focused excessively upon questions of legitimacy and equal rights, at the expense of issues concerning different facets of individual freedom. However, it still emphatically remains a democratic model that is far more receptive to the support democracy receives from a political culture rooted in mythic foundations than various liberal alternatives, which remain trapped in one-sidedly rationalistic delusions. And yet for those who, whilst still intoxicated with liberal myths, continue to equate democracy with liberalism, and thereby remain entranced with the oxymoron ‘liberal democracy’, a Schmittian approach will inevitably appear perverse. Schmitt recognises that this confusion was understandable in the 19th century because ‘parliamentarism advanced at the same time and in the closest alliance with democracy, without either of them being carefully distinguished from the other’ (Schmitt 1988: 2).

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However, from the early part of the 20th century, their differences and incompatible ideas have become ever harder to ignore (Schmitt 1988: 2). Schmitt’s attempts to extricate the core defining ideas and institutional practices of democracy from liberal beliefs and institutional practices, including parliamentarism, will – given their prejudices and self-serving equation of democracy with liberal-democracy – typically appear to liberals as necessarily and essentially anti-democratic. Democracy, for Schmitt, is integrally linked to ideas and practices of modernisation, progress and scientific enlightenment, and thus often (mis) interpreted as a myth-transcending phenomenon in general. For instance, the democratic movement’s historical transcendence of the feudal myth of the ‘divine right’ of Monarchs, and hence the feudal social order more generally, is supposed to be highly significant. It allegedly represents merely one illustration of a far wider progressive tendency for the pure light of reason to drive out the darkness of superstition, prejudice and mythologies. For his part, Schmitt certainly recognises that, from 1848 onwards, the triumph and rapid extension of democratic principles and assumptions demanded recognition as a possibly irreversible and epoch-changing historical event. That is, an event whose achievements, including even the ‘lesser evil’ of deficient parliamentary forms of democracy, must be safeguarded against various anti-democratic movements. These include not only Royalist attempts at restoration and communist movements, but also both institutional and doctrinal aspects of modern liberalism that resort to various constitutional doctrines to frustrate the potentially redistributive potentials of mass democracy (Schmitt 1988: 2–3; Seitzer 1998; Kalyvas 2008: 79–87, 96–100). According to Schmitt, democracy is both a ‘genuine political concept’ and one of a number of competing state forms and modes of governing (Schmitt 2008b: 265). Myths related to democracy, as variously defined, have, therefore, to be considered as including distinctly political aspects. The rationale for a democratically oriented public law scholarship taking such political myths seriously is not to affirm such ‘irrational’ deployments of extra-parliamentary ‘direct action’ designed to sweep away established constitutions, or even repress the very idea of constitutional governance of any kind. Instead, it is rather to provide measures to boost, or otherwise defend, the perceived legitimacy of democracy itself, which – in some form – Schmitt characterised as essential to any truly modern European state (Schmitt 1988: 30; Kalyvas 2008). There is, from a Schmittian perspective, no justification for confining discussions of democracy to abstract normative ideals divorced from historically specific institutional practices and actual modes of governing. It is a vital quality of democracy that even where there are disagreements as to particular matters, ‘the people’ can typically identify with the general orientation of their government and vice versa. A Schmittian approach to

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constitutional law includes the central claim that a modern theory of democracy must be receptive and sympathetic to specifically mythic aspects of this institutional practice and its reinterpretation by citizens. However, and for reasons the last section discussed, it is equally important for scholars not to allow themselves to become seduced into an uncritical and overly enchanted orientation: one that jettisons the distinction between mythic and rationally grounded beliefs, akin to abolishing the basic distinction within libraries between works of fiction and non-fiction. Schmitt’s attempts to salvage and extricate a viable and appropriate model of democracy from the oxymoron ‘liberal-democracy’ include providing a critical analysis of the contemporary relevance of those myths that underpin the latter. This approach is fraught with dangers. It almost invites misunderstanding from liberals in particular, who assume that even a Schmittian critique of non-democratic elements of liberal democracy, which are made in the name of other, distinctly democratic elements, necessarily amounts to an attack upon democracy itself (Pan 2009a: 86; cf Scheuerman 1995). It is, therefore, necessary to be absolutely clear on one point: in comparison with the qualified model of ‘direct’ or ‘plebiscitary democracy’ that Schmitt endorses, much of what parades itself as ‘democratic’ within the modern world is not fully, or evenly partially, democratic at all. Such defective, or counterfeit, instances deserve to have their mythic self-images clearly exposed as such. This is another sense in which a Schmittian model can identify and then address ‘democratic myths’. In other words, it is necessary to appreciate that many counterfeit, or ‘so-called’, democratic practices merit critical analysis precisely because of a discrepancy between their self-definition and the implications of their actual practices. Included amongst these states are many identified with both liberal constitutionalism as well as old-style socialist ‘people’s democratic republic of X’. Of course, judgements of democratic credentials in this area hinge upon the content of the particular and indeed context-specific definition of democracy being deployed to distinguish supposedly authentic from counterfeit democracies. If a Schmittian interpretation is worthless because it fails to grasp core aspects of this distinctly political concept, then the probable result would be to invalidate its critical approach to ‘democratic myths’, that is, counterfeit democratic practices, with a Schmittian critique itself becoming purely mythic. Therefore, a key task is to further clarify Schmitt’s broadly phenomenological description of the idea, practice and ideal of democracy itself as a potential benchmark standard immanent to many existing political cultures, and to describe any underpinning mythic beliefs. A Schmittian model of democracy is rooted in a commitment to popular sovereignty; it thus emphasises the need for a government that aspires to be recognised as democratic to both embody and demonstrate responsiveness

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to the orientation and concerns of ‘the people’. It also requires states to clearly respect the principle that ‘state power and government derive from the people’ (Schmitt 2008b: 265). This model also rejects the elitist idea that governments are entitled to dismiss as ‘ill-informed’ clear and overwhelming expressions of popular will concerning not only general principles of governance, but also the overall direction of government policy (Schmitt 2008b: 264). For Schmitt, democracy is best understood as ‘the rule of a people over itself’ rooted in a concrete commitment to equality. As such, it is certainly an internal ideal of many, if not most, modern types of society to be ‘strived for’. However, this substantive understanding of democracy provides a legitimating rationale for a range of concrete and historically specific institutional practices expressed in terms of substantive political equality of all citizens. These practices range from government’s constitutional obligation to stand for regular election, to the legislative removal of all gender, property and age discriminations with respect to eligibilities to vote in elections (Schmitt 2008b: 264). Schmitt clearly recognises that an optimally democratic state will necessarily involve a factual and material distinction between governments and the governed. There may be a range of meritocratic differentiations allowing those with especially relevant skills in, say, public health issues or concerning national security or military imperatives, to contribute their distinctive expertise and valuable personal leadership and administrative skills in the cause of government service. Their expert judgements are likely to be treated as generally authoritative, even where they are unpopular in a specific case (Schmitt 2008b: 266). However, the vital thing for Schmitt’s model of democracy is that such differentiations between government and citizens are maintained only in a manner that, despite occasional controversies, commands widespread ‘public trust’ and ‘the confidence of the people’. In addition, these distinctions must arise and operate within a broadly shared and overarching orientation committed to values of political equality of all citizens, which, for example, precludes apartheid or slavery. They must, therefore, appear as differentiations not between two utterly discrete groupings: the people and their rulers with the latter understood as a selfreplicating ‘ruling caste’. Instead, they must be explicable as strictly relative, contingent and indeed conditional differences within a common, if factually pluralistic, ‘people’. Whilst a leading government public health official may, for instance, be entitled to issue authoritative regulations in relation to, say, a foot and mouth outbreak, he or she remains just another citizen with respect to, say, anti-terrorism emergency powers measures formulated by another expert, and vice versa. In particular, there must not be two separate and discrete classes involving a stark qualitative distinction in kind between a ‘special class’ and the rest. That is, between a stable and self-

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replicating governing elite who have become uprooted from popular sentiment by usurping the idea and institutional practices of ‘the nation’ (and the ‘national interest’) as their own playthings, and the remainder of comparatively second-class citizens whom it is assumed are destined merely to toil and silently obey their superiors: ‘In a democracy, whoever governs does so not because he [sic] possesses the properties of a qualitatively better upper class opposed to an inferior lower class. That would naturally eliminate the democratic homogeneity and identity’ (Schmitt 2008b: 266). It follows that to be democratically legitimate, the distinction between government and the governed must remain explicable as an act or process of political self-determination by the governed themselves, not a selfdifferentiation from their ‘fellow citizens’ by a prior and continuing ‘special class’ (Schmitt 2008b: 266). By reference to this benchmark, insofar as many formerly socialist regimes afforded special privileges to members of the Communist Party, thereby creating a two-tier form of citizenship, their constitutional pretensions to embody a democratic egalitarianism became mythical in practice. Without self-delusion, citizens of a genuine democracy must be able to subjectively feel that it is ‘their’ government that is acting on a ‘commission’, or mandate of principles, which they and fellow citizens have granted, and – if need be – can later withdraw (Schmitt 2008b: 264). For Schmitt, it follows that where a state’s political leadership demonstrates through its act and omissions that it has become unresponsive to, or otherwise out of touch with, expressions of popular sentiment, then a democratic deficit will inevitably arise. What if referenda, petitions and public opinion surveys make clear that the mass of the people favour an extension of the welfare state, whilst the government insists on implementing the opposite policy? In this situation, the democratic ‘contract’ between the governed and the government, the idea that this differentiation has to operate within an overarching commonality, or ‘identity’, will be shattered, probably leading to a legitimacy crisis. Schmitt’s emphasis on ‘democratic identity’ stems from, and positively supports, the classic notion that in a ‘normal situation’ where emergency powers and martial law are unnecessary, democracy entails government of, for and by the people, that is self-government interpreted as a manifestation of a democratic right to self-determination (Schmitt 2008b: 264). Here, ‘identity’ does not mean a purely formal or normative identity of the kind contained in a constitutional declaration handed down from on high and containing abstract definitions of, say, nationality and citizenship rights. Instead, it is a real and concrete existential identity, a shared mode of being that citizens commonly experience and widely define for themselves as subjectively real. Democracy, for Schmitt, thus includes a context where citizens possess a deep-seated ‘sense of belonging’ to a specific and distinctive ‘demos’ to

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which they are personally committed. On this basis, they can – without deception or self-deception – feel part of a distinct and broadly unified people, whose thoughts and actions both exhibit and reiterate a distinct and broadly shared sense of national identity. Members of a democratic state must, therefore, be able to experience themselves not merely as indifferent and universal ‘individuals-in-general’ (as generally demanded by individualistic liberal ideologies), but rather as citizens of a particular nation state with which they identify as their own life-element and medium of belonging. Such ongoing acts of identification, sometimes expressed in support for military forces in combat or national sports teams of various kinds, are not politically neutral. Instead, they participate in a commitment to sustain the perceived integrity and pride of the nation as a whole as their own cultural life-element. It is implicitly recognised by Schmitt that one’s people or nation is not a ‘given’ who’s integrity, cohesion and continued existence can be taken for granted. On the contrary, this status remains an ongoing accomplishment involving its member exercising political will and commitment to sustain and defend it from a range of potential internal and external threats. Every nation can be haunted by the spectre of former nations, that is, once vital and distinctive nations that their citizens allowed to collapse through assimilation, repression or simple abandonment: ‘On the whole and in every detail of its political existence, democracy presupposes a people whose members … have the will to political existence’ (Schmitt 2008b: 264). Hence, where the majority of Scots no longer subjectively identify with a British national identity, and prefer to define, or redefine, themselves as a separate ‘nation’ demanding a distinctly Scottish form of sovereign government, then that is their democratic right. This trumps any statements to the contrary in an ‘Act of Union’ agreed between aristocrats and monarchs alone many centuries ago, or even perhaps accession into the EU. Equally, if the majority of self-defined Scots were later to become disillusioned with the practical realities of sovereign nationhood and national independence, and sought an alternative constitutional arrangement, then that quest would also be an expression of their democratic right of self-determination. Of course, no other nation, least of all the English or Welsh, would be under any particular obligation to accommodate this desire. A democratic form of ‘national identity’ in this sense is not a given, let alone a result of legislative decree or judicial declaration. Instead, it is a distinct nation’s continuous performance and collective accomplishment arising from the ‘bottom up’ as it were, and thus in defiance of all types of top-down imposition. A counter-concept to Schmitt’s notion of democracy was the imperialist practice of the old Soviet Empire in forcing atheist identities upon all citizens of subjugated East European satellite states, requiring them to learn Russian and repress all pre-socialist sources of

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cultural and religious and national identity (as if Polish shipyard workers were proletarians first and foremost). Such imperialistic practices are, of course, the very opposite of that which a Schmittian model of direct democracy from below entails. Hence, military occupation by a foreign power exercising direct rule is an extreme example of undemocratic practice, even where it imposes by force Western liberal institutions, including parliamentarism, upon a largely tribal or clan-based society, such as contemporary Afghanistan. Equally, in a context of near civil war, a strong and properly elected leader may take authoritarian – but highly popular measures – to restore order and public security for all sides, albeit at the expense of familiar liberal constitutional principles and international human rights expectations. In Schmitt’s model, this leader’s actions more closely realise democratic ideals than the policies of an earlier regime which insists that no such decisive actions were legally or constitutionally possible, and that appeasement with internal or external enemies, even those with tyrannical aspirations, was therefore the only possible alternative. For the latter, adherence to ‘liberal democracy’ involves the political myth that a timid, pacifist and weak government that is afraid of going beyond provisional half-measures, and which subjects itself to – and hides behind – a mass of constitutional checks and balances, including review by a constitutional court and deadlocks created by negative parliamentary majorities etc., is somehow democratic Schmitt rejects this liberal constitutionalist claim by objecting that: One cannot generally define a political form according to properties such as mildness and hardness, ruthlessness or humanity. It is the distinctly liberal, Rechtsstaat component, which linked itself with the democratic element of the constitution, that leads to the weakening and softening of the power of the state by a system of controls and restrictions. This tendency is not essential to democracy as a political form; it is perhaps even foreign to it. (Schmitt 2008b: 265–6) Such reluctance to disregard liberal constitutional principles and procedures can be based upon the mythic idea, misinterpreted as a constitutional norm, that, irrespective of what an overwhelming majority of citizens actually demand to be carried out in their name, no such contravention of these principles can ever be permissible within a democracy, at least not without debasing a state’s democratic credentials. For Schmitt, however, this constitutes an unresponsive and essentially elitist orientation, based on the know-it-all presumption that government leaders are, by that fact alone, ‘qualitatively better’ and ‘superior’ to the orientation of the governed. Such an elitist orientation sets up its own self-generated

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standards, endorsed perhaps by subservient ‘experts’, above those clear expressions of popular will. It misrepresents this activity as the fulfilment of liberal democracy, rather than merely that of liberalism at the expense of democracy. Schmitt tries to show that the reverse is the case. Consider a situation where those taking authoritarian actions are ‘still rooted in the substantive similarity of the people’ and ‘receive the consent of and have the confidence of the people, to which they belong’. In this context, even ‘strict and more intense’ extraordinary and ‘decisive’ measures against, for example, an insurrectionary terrorist group, or fascistic, Maoist, anarchist or Marxist political movements seeking to subvert democratic governance from within, can exhibit democratic legitimacy. This is true both at the time of the crisis, especially if such measures are later publicly re-affirmed by a majority during a referendum, and later. By contrast, more cautious and less decisive measures taken by a semi-detached liberal ruling elite fearful of regional or international criticisms of its human rights record may, according to Schmitt’s theory, lack such democratic legitimacy. A truly democratic government may have no choice but to combine continuing popular legitimacy with strength of purpose, and thus a willingness, if need be, to take decisive, even dictatorial, action against internal or external threats to the well-being of the entire people. It follows that the decisive matter concerning democratic legitimacy is not the nature of government actions themselves. It is, rather, the credentials of those exercising sovereign power. It is one thing for a military dictator­ ship to ban a revolutionary communist or fascist party, quite another when this prohibition is carried out by an embattled but democratically-elected leader who is acting in pursuit of an election pledge to safeguard constitutional governance from its most resolute and dangerous foes (Schmitt 2008b: 265). These various points concerning the reality of democracy-in-action provide a benchmark standard against which a Schmittian analysis seeks to distinguish mythic claims based upon fictions, or half-truths, from genuine instances of democracy that, to a greater or lesser extent, realise this idea in practice. Without such a standard and the various differentiations based upon it, studies of myths associated with democracy, including conceptions of ‘counterfeit’ democracy, would lack any conceptual grounding. For instance, the idea of contemporary liberals that parliamentarians ‘represent the people,’ or ‘their constituents’, involves, at best, an ‘indirect’ form of democracy. This is prone to degenerate into a legendary myth, or ‘fiction’, where its claims to embody democracy as such, that is, the people’s self-rule, fail to inspire public trust and confidence (Schmitt 2008b: 264–5). By contrast, Schmitt argues that in a fully developed or ‘true’ democracy, the ‘difference present in other state forms’ (monarchy, theocracy, dictatorship etc) between ‘the governing and the governed’ can operate

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neither as an institutional practice, nor as a constitutional principle. Indeed, it is this feature that distinguishes democracy from other, competing state forms. The liberal belief that the ‘will of parliament’, somehow embodies the ‘will of the people’, and thereby confers an absolute obligation to obey the resulting law, operates as an undemocratic myth. Schmitt points out that parliaments typically comprise a compliant majority of professional ‘representatives’ largely selected and partially controlled by unelected party officials and members. The equation of parliamentarism with democracy rests upon one of liberalism’s major political myths, which deserves to be openly acknowledged as such (Schmitt 1988: 3; Schmitt 2008b: 264). To be clear, a Schmittian critical analysis of liberal democracy’s mythsturned-legends is directed neither to their status as mythic, nor – of course – to the claimed democratic elements themselves. Democratic values and ideals remain the benchmark; it is simply that the institutions of liberal democracy realise their liberalism at the expense of this benchmark. It is this element that makes their claims that democracy attains ultimate fulfilment in the practices of liberal parliamentarism the equivalent of a political myth. A Schmittian critique focuses upon the diminishing credibility of such claims given 20th- and 21st-century constitutional developments. For Schmitt, mass acceptance of liberal constitutionalism has typically been assisted by the interplay of rational and mythic factors, both of which require sympathetic reconstruction and acknowledgement. These include the secularisation of earlier theological dimensions relating to the divine sources and underpinnings of sovereign power. Such power has been reassigned to a particular conception of ‘the people’ (albeit only then to be immediately transferred back to ‘their’ parliamentary representatives). Another factor already noted has been the incompatible – but self-serving – strategic myth that parliamentary forms of liberal democracy, together with other liberal institutions and doctrines, fully exemplify democracy as such (Schmitt 2008a: 256–7). The latter’s mythic character is easily exposed by a reflection of the classic liberal constitutionalists’ principle of the separation of powers. This principle is designed to impede the potential direct expression of popular sovereignty oriented for example towards a redistributive agenda through the effective merger of executive and legislative functions (Schmitt 1988: 36, 39–41). It would be misleading to conclude that recognition of the partially mythic components of the mass appeal of liberal democracy means that a Schmittian perspective must treat democracy itself as nothing but a myth to be purged. We have already noted how Schmitt rejects a myth/non-myth dichotomy that assigns irrationalism to the former side of this opposition and scientific rationality only to the latter. However, and as Kalyvas has shown in admirable detail, Schmitt’s short but disastrous personal involvement with Nazism has forestalled most contemporary scholars from taking seriously the positive theory of democracy both contained in – but

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also presupposed by – many of his key Weimar works. Yet, these remain clearly present nonetheless (Kalyvas 2008: 84–7; ch 4). For Schmitt, the necessity for modern governments to appeal to democratic principles as the grounds for their actions remains an escapable reality and source of state legitimacy, even for comparatively authoritarian regimes (Schmitt 1988: 31–2). In particular, Schmitt’s Constitutional Theory takes it as self-evident that if a constitutional work contains a polemically anti-democratic orientation, then exposure and recognition of this fact is, in itself, sufficient to diminish its quality, contemporary relevance and scholarly standing (Schmitt 2008a: 256). Through a close reading of his analysis of practices of political mythmaking and its various functions, we can clarify whether, and if so to what extent, Schmitt includes such deliberate acts not only as a distinct theme for juristic analysis but also as one part of his own polemical armoury for conducting such analysis. An essential part of democratic renewal requires a sympathetic reconstruction and open acknowledgement of a key mythic underpinning of democracy itself: the ‘demos’. One primarily mythic element of our belief in democracy relates to the idea of the ‘demos’, ‘the people’ as inhabitants of a distinct realm, or ‘homeland’, possessing its own state boundaries distinguishing domestic from foreign affairs, and placing substantial limits on the reach of both court and legislative decisions. Schmitt expressly addresses the mythic elements of our nation as a collective homeland. He suggests that this conception of ‘demos’ – and hence ‘demo-cracy’ – cannot avoid the constitutive role played by a geopolitical spatial dimension, a distinct people inhabiting and controlling its spatially-delimited territory acquired by a nation’s earlier collective act of land appropriation. Of course, the latter’s annexation of territory may expand and redefine the cultural, ethnic and religious characteristics of ‘the nation’ itself. This unavoidably particularistic dimension of nation­ hood, or demos, involving the distinctive qualities of a defined ‘people’, is often shaped by the impact of past military victories, annexations and defeats. It forces itself even upon revolutionary constitutions committed to more universalistic sentiments. In Constitutional Theory, for example, he argues: The French Revolution of 1789, despite its ideas of humanity and the general brotherhood of all peoples, presupposes the French nation as a historically given entity. Its constitutions are linkages of the principles of the bourgeois Rechtsstaat with the democratic principles of the constitution-making power of the people. In the 19th Century, the national idea led to new political formations and to the democratisation of the states through general compulsory military service and the general right to election. The substance of equality, which is part

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of all these institutions, resides in the national component. The presupposition of this type of democracy is national homogeneity. (Schmitt 2008a: 261) Read in context, this is far from being an ominous manifesto for the political exclusion of any or all minority groups. On the contrary, it suggests that whilst democracy can be accompanied by all manner of moralistic and cosmopolitan mythic beliefs in a ‘common humanity’, its modern reality is, nevertheless, centred on a distinct and politically differentiated people. The latter inhabit a definite slice of physical territory they define as their distinctive homeland, and who are administered and defended by a particular nation state to whom they look for guarantees of security. Schmitt insists that ‘all democratic thinking centres on ideas of immanence’ (Schmitt 2008b: 266). This idea is directed against two essentially anti-democratic tendencies of the modern world. These displace all references to ‘the people’ as a source of sovereign power. Instead, they introduce a qualitative distinction not only between supposedly ‘higher’ and ‘lower’ types of law, but also, as its corollary, between superior and inferior citizens. The first variation is a theocratic, even religious fundamentalist state form, where the validity of legislation (and constitutionally authorised government policies) depends upon its compliance with a theologically acceptable understanding of the ‘will of God’ taken as the supreme source of higher law. The meaning of the latter typically depends upon how it is interpreted and applied by a ‘higher’ special class of persons allegedly blessed with unique insight into the significance and implications of holy works. Their interpretative authority (and hence social power) will typically be grounded in factors other than widespread public trust and confidence: ‘The appeal to the will of God contains a moment of undemocratic transcendence. … a state power is exercised even against the will of the people; in this meaning, it contradicts democracy’ (Schmitt 2008b: 266–7). This criticism does not necessarily mean that, as a general rule, religion can only operate as an essentially undemocratic force within modern societies. It suggests that a religious understanding of the ‘will of God’ becomes relevant to constitutional questions only when the particular God in question is clearly one the mass of a specific people themselves accept. This faith-based mythic belief may function as a major source of national identity, as was, for example, traditionally the case with respect to Catholicism within the Irish Republic, at least until recent decades. For his part, Schmitt’s relativist, or social constructionist, position insists that: ‘God cannot appear in the political realm other than as the god of a particular people’ (Schmitt 2008b: 267). There is certainly something illiberal about any constitution (or, perhaps, even domestic criminal law) affording special status to a specific religion to the comparative disadvantage of either its rivals, or to

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secular humanists. Yet, under specific conditions, this privileged status need not necessarily operate in an undemocratic manner. Here, the proviso must be that such entrenchment does not clearly offend the sensibilities of a majority of citizens insofar as these are variously expressed, including through referenda, high levels of voluntary church attendance, and so forth. Within a specific nation state, a widespread belief that traditional Catholic or Islamic doctrine provides a definitive and supreme source and guide to legitimate forms of law-making and legal interpretation, is certainly culturally underpinned by a myth with political implications. However, for Schmitt, a religious belief of this collectively shared kind can, nevertheless, function as a truly democratic aspect of law-making. This may continue to be the case unless and until such beliefs become effectively displaced democratically by, for example, a newly-fashionable public adherence to our secular religion of ‘human rights’, or some other particular ethos. In each of these scenarios, it still makes good sense for constitutional doctrine to affirm that ‘the people’s voice is the voice of God’, even where the government’s own express orientation is itself entirely agnostic, technocratic, or even evangelically atheistic (Schmitt 2008b: 267). In short, the fact that religious myths can underpin the culture of modern democratic constitutional orders does not necessarily subvert their democratic credentials. Indeed, it can even enhance them as an articulation of the principle of immanence. Schmitt argues that there is a second unwelcome form of transcendence: one that fails to meet his democratic benchmark. This is the super­ imposition by unelected transnational or regional bodies of restrictions upon the scope or validity of law-making, where this takes place from a position that is outside an affected people’s processes of democratic willformation. Examples can include the extension of the jurisdiction of international criminal courts claiming a ‘higher authority’ in comparison with their mere domestic equivalents. Another is the UN’s granting of overriding powers to either its own officials or those of non-government organisations to carry out inspections of various kinds within the borders of a nation state, even where the latter has already expressly denied permission for this. Schmitt maintains that not even God can ‘play God’ in the sense of comparative ‘outsiders’ setting themselves up as a supreme world law-maker and policing agency, at least where this clearly amounts to a violation of a nation state’s democratic processes of will formation and decision-making processes that articulates the political will of that specific people. The question is not whether such inspections are in themselves objectionable or desirable – or even over the nationality of the inspectors themselves. The key question is whether the decision to hold them at all is or is not explicable as a democratic instance of self-governance:

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Democratic identity rests on the idea that everything inside the state involving activation of state power and government only occurs within the confines of the people’s substantive similarity to one another … in a democracy state power must derive from the people and may not be set in motion by a person or from a position that is outside of the people and standing above it. State power does not even derive from God. (Schmitt 2008b: 266) Despite his own sometimes unorthodox Roman Catholicism, in this context Schmitt places respect for democracy above that of the Christian version of God. Schmitt’s strong position on this issue stems from his insistence that a nationalistic belief in, and subjective adherence to, ‘this nation as our nation’, the inherently particularistic and distinctive subject of ‘demos’, underpins the very possibility of a viable democracy. All legitimate state power derives ultimately from a mandate given by ‘the people’. Hence, government and legislatures must find credible ways to identify when this collective has spoken, what it is that they have stated, and, finally, its implications for government action. In practice, however, belief in a singular voice of ‘the people’ cannot fully avoid confronting a mythic dimension that underpins its very possibility. For example, Schmitt notes that the results of democratic elections in referenda, local government and parliamentary elections remain binding not only upon those who were outvoted but also upon all others who did or could not vote. This remains the case even where there is only a statistical minority of ‘the people’ who have actively endorsed the decision or policy in question (Schmitt 2004b: 36). In what sense does Schmitt consider the ‘demos’ of ‘demo’-cracy to rest at least in part upon mythic underpinnings? To function institutionally as a democracy, a state must routinely apply a concrete definition distinguishing, say, French citizens entitled to vote, from all others, including temporary residents, overseas diplomats and visitors. Applying such a distinction, in turn, requires the state to have already formulated a singular and particularistic conception of nationality requirements. This may – but need not be – pluralistic in terms of religion, skin colour, regional attachment, language, dialect, ethnicity etc. For example, a newly-liberated South Africa could have decided to exclude former white beneficiaries of apartheid from citizenship rights, or to have adopted a more inclusive, pluralistic or ‘rainbow’ approach to questions of nationality. Either way, some at least formal measure of ‘homogeneity’ (in Schmitt’s sense of this unfortunately deceptive term) would have had to be invoked to distinguish South African citizens from others located in or outside the state’s borders on election day. The key point is that to first emerge and then function as a viable democracy, any nation needs to possess and consistently apply some sense

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of who alone are its nationals, and what are the specific consequences of citizenship for both citizens and the state. The alternative would be to allow anyone in the planet to vote in a South African election, which of course would make a mockery out of the democratic principle of a distinct people’s right of self-governance. Hence, resort to simplifying myths of ‘the nation, our nation’ as a singular and distinct political entity, or living organism differentiated – to some extent – from all others, will frequently – perhaps necessarily – accompany processes of democratisation. Schmitt suggests that there are both distinctly emotional, as well as geopolitical, aspects of the identity politics of making and enforcing the national/non-national distinction and its various constitutional implications. For instance, his Nomos of the Earth argues that a ‘poetics of space’ has historically opened up and continuously recreated the map of the world as a spatial order. Here, specific myths and symbols have played a key role in imagining, delimiting and situating a people’s distinct territorial boundaries equipped with specific legal jurisdictions. These are typically centred around the nation state, clusters of social relationships and political identities. Partly through reliance upon mythic categories of national characteristics that distinguish, say, a ‘true Scot’ from members of every other nation, the ‘nation’ part of the nation state becomes an imagined or fictive community of fellow citizens. This remains the case even though it is only possible for any particular citizen to have personal contact and a sense of affiliation (‘belongingtogether’) with a small faction of his or her ‘fellow citizens’. Hence, his or her sense of what it subjectively means to be Scottish cannot be founded upon a comprehensive and fully representative experience of Scottishness acquired at first-hand. Instead, this must resort at least implicitly to transmitted clichés, idealisations and stereotypical conceptions of national identity, which will – considered sociologically at least – be partly fictive or idealised. Indeed, if considered in terms of overall way of life, a Scottish highland farmer may have more in common with his or her English Cumbrian counterpart than with a fellow countryman or women living in, say, Glasgow. The idea of the nation as a ‘community’ akin to a village writ large where everyone knows everyone else in a first-hand and immediate manner is, in practice, more virtual and hypothetical than actual; it certainly requires creative supplementation by the imagination and rhetoric. Soldiers in battle may be willing to kill and risk being killed ‘for Queen and Country’ in one sense but it is just as likely that the content of their actual ‘sense of community’ is far more localised and concrete, centred on their regiment, for example, or even a particular subset within it. In short, political myths invoking ‘the nation as our nation’, or ‘one nation’, thereby open up the possibility of belonging to a particular nation as a ‘fellow national’ and, as its necessary correlate, ‘an alien’ or non-citizen

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in every other state. This partly mythic element of national identity – with its various politics of inclusion and exclusion – operates as an essential precondition for any viable democracy, even a flawed liberal version that promotes ‘the rights of individuals as such’ devoid of theoretical questions of nationality. Vital to the post-Westphalian transnational international law, which collapsed between 1890 and 1917, was the strategic political myth that sovereign states alone are able to authoritatively define and apply the distinction between ‘friends and enemies’ – the hallmark of ‘the political’, and thereby both start and end interstate conflicts in a legitimate manner. A key political myth here is the nationalist belief that a specific territorial ordering of space possesses a sacred character deserving of respect, and thereby possesses a heightened emotional significance for those who belong to it as their ‘homeland’, ‘land of our fathers’, ‘Mother Russia’, and so on. In turn, an emotionally charged sense of affiliation remains central to questions of personal, as well as collective, identity. Indeed, this can prove sufficient to inspire a willingness amongst citizens to fight and die to protect whatever government leaders define credibly as constituting its integrity (Schmitt 2003: 70; Dean 2006). A Schmittian analysis cannot itself be committed to the promotion of mythic beliefs underpinning any particular nationalistic agenda – as if these were self-evidently true; whilst denigrating as delusional those of every other nation. Instead, it must seek to theorise the historical force and contemporary role of such beliefs in first enabling a nationalistic understanding of nationhood/‘demos’, which – whether one approves of its contents or not – clearly underpins domestic forms of democracy. Indeed, Schmitt’s discussion of ‘democracy’ under the heading of ‘fundamental concepts’ states: Democracy is a state form that corresponds to the principle of the identity (in particular, the self-identity of the concretely present people as a political unity). The people are the bearer of the constitutionmaking power, and, as such, grant themselves their constitution. (Schmitt 2008b: 255) A Schmittian approach to political myths of ‘the nation’ emphasises their particularistic quality of differentiating specific nations from each other within historically specific contexts, and thereby establishing, sustaining and changing cultural and material boundaries and borderlines. As Kennedy’s foreword to a translation of Schmitt’s Constitutional Theory notes: ‘Read with The Concept of the Political, the present text captures the seriousness of constituting this people in this time, not as a set of technical issues in law and electoral strategy, but as a boundary that secures the existential survival of a particular way of life’ (Schmitt 2008a: xvi).

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These various Schmittian understandings of democracy, together with the latter’s constituent elements and rootedness in concrete mythic beliefs of demos/‘the people’, has specific constitutional implications. It suggests, for instance, that a cosmopolitan ideological approach to democracy, international law and constitutional questions, which rejects the significance of nation states and hence the importance of democratic political willformation as a key legitimating source of national sovereignty, will inevitably be flawed. In particular, such approaches will typically exhibit antidemocratic and self-affirming elitist tendencies, which are barely concealed behind a lofty and know-it-all dismissal of mere ‘popularism’.

Myths of national identity For reasons already discussed, the practice of democracy requires citizens of a nation state to identify with its political culture grounded in specific defining myths that shape the prevailing sense of national identity. Revolutionary Marxism promotes an ideology that is entirely incompatible with this model of democracy. The mythic idea that the industrial working classes have come to provide a growing material basis for forms of political unity that are potentially universal, conflicts with the spatially-grounded political myth of ‘one nation, our nation, our state’, on which nationalistic ideologies of the modern democratic state depend. Marxism’s myth that it is possible to identify a revolutionary working class united across national borders, and who identifies its social class characteristic as central to its very identity as a stateless entity and agent of social transformation, has – at least temporarily and partially – qualified the generality of the earlier nationalistic myth. Throughout the majority of the 20th century, a Soviet MarxistLeninist ideology, itself founded partly upon this distinctly modern form of political myth, has helped shape geopolitical developments, before becoming widely seen during that century’s final decades as grotesquely anachronistic and almost incomprehensible. To many contemporaries, images from North Korea appear less the instructive forerunner of future humanisation of global humanity, than an almost satirical museum piece within a cold war exhibition – albeit one possibly armed with nuclear weapons. Such can be the dramatic effects of the implosion of political myths, which once promised a world revolutionary transformation with mass support. Contrary to classic models of liberal democracy rooted in a self-serving and teleological model of historical progress, public authority is – according to Schmitt – not therefore something archaic against which modern democracy, and democratic modernisation, is essentially pitted as its negation. Instead, the very effectiveness of the principles of democracy stem from their ability to directly command widespread authority amongst a plurality of citizens. That is, to become generally understood as something

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authoritative embodying a tradition of institutional practices under whose auspices legitimate forms of politics can become organised and routinely conducted. For Schmitt, the authority of democracy is founded upon, and remains relative to, a cultural tradition’s ‘ethos of belief’. It thus presupposes a measure of ‘public confidence’ in the constitutional system itself, in its effectiveness in translating a specific people’s self-defined ‘popular will’ into tangible and concrete decisions – including appropriate laws and constitutional arrangements (Schmitt 2008b: 138; Schmitt 1996c: 17). Without widespread belief in such effective institutionalisation of the popular will, democratic forms of will-formation cannot be expected to take root and thrive. In turn, this failure would risk disrupting the cultural grounding of the idea that our state is and, despite all inevitable empirical imperfections remains, essentially a democratic one worthy of defence. For Schmitt, it is important that – whatever its cognitive flaws and naïveté – this underlying popular belief becomes not only widely accepted and sustained, but also that counter-evidence is explained away as mere exceptions whose very exceptional status actually proves the rule. Adherence to democracy requires the active promotion of mythic beliefs strategically misrepresented rhetorically as self-evident and necessary truths. Through the rhetorical power of an appropriate mythic symbolisation combining order, as well as a distinctive cultural orientation, a prodemocratic understanding is, according to Schmitt, as likely to be attained and secured within aesthetic, as it is within purely cognitive, experience (Pan 2009a: 92). Indeed, Pan recognises that although questions of the vital role of rhetoric remain unresolved in his early formulations, ‘Schmitt puts together the building blocks of an essentially aesthetic theory of myth … rooted in meaning and values … that would explain its functioning in both the ancient and modern world ...’ (Pan 2009a: 99). A specific person and state office-holder must be generally acclaimed as consistently personifying – and thereby rendering publicly visible – the recognised authority of democracy perceived as something inherently legitimate. Within a democratic state, aesthetic reception is vital to forestall possible legitimacy crises. Hence, to function as a symbolic figure embodying the democratic authority of a concrete nation, he or she must ‘look the part’ in the eyes of most politically engaged citizens as the representation and personification of ‘this, our nation’. This holds good, even though what the requirements actually mean for the mass of citizens typically escapes the sphere of express definition. Such symbolic representation of political unity gives form to the nation state (Schmitt 2008b: 241). The rise of a Hollywood-groomed US President or state governor of California, and the apparent inability of allegedly physically unattractive politicians to ever become elected national leaders, and thereby to symbolise the nation as a whole, can, perhaps, be explained in these cultural symbolic terms. What is required to fill this role is a concrete figure, both popularly perceived and widely accepted as radiating

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an appropriate measure of ‘gravitas’ and ‘dignity’, reflecting back to citizens a sense of the value afforded to their collective self-identity (Schmitt 1996c: 20). Popular acceptance of the idea that the office of the President possesses an inherent dignity over and above that of those individuals who temporally hold this post, is however hardly automatic or even rationally self-evident. For Schmitt, the contribution of political myth-making helps resolve this difficulty. It does so by contributing to the rhetoric of a constitutional narrative, one that re-affirms – at the symbolic level – the supposedly ‘obvious’ truth of this belief as something almost beyond question. For the majority of citizens, the very idea of such a Head of State falling down drunk and swearing profusely on the day of his or her Presidential inauguration (or coronation in the case of a constitutional monarch) thereby becomes almost inconceivable. This is because the cultural tradition in question has already assigned the ‘due dignity’ of the nation to this office as one of the latter’s supposedly inherent qualities. The belief that the personification of one’s nation must always radiate qualities demanding of respect relative to the particular cultural expectations in play within the nation in question, and irrespective of the latter’s actual historical track record, is clearly rooted in a self-affirming collective myth. Even a truly contemptible nation, a corrupt and dysfunctional tyranny for example, which recognises this quality in itself, may still require that its head of state continues to act in ways that command respect. This may be demanded as if it constitutes a basic entitlement of all its citizens, expressing a basic need to feel good about a symbol of their own national identity. Even where there is little evidence that the citizens of a particular nation state typically embody such dignity during their own conduct, the mythic belief that ‘this nation our nation’ needs to express itself through the dignity of ‘our President’, can continue to prevail as self-evidently appropriate, even without the expectation itself being widely questioned. It remains an open empirical question whether there could ever come a time when sustained evidence of crassly undignified behaviour by an actual Presidential figure could ultimately defeat the mythic belief that the office itself still properly embodies the appropriate dignity of the nation. It is possible that many democracies are, in part, sustained by an appeal to nonrational elements of ‘public confidence’ contained in various constitutional narratives richly permeated by political myths. That is, by a ‘constitutional patriotism’ unconcerned with its own cognitive justification through social scientific or historical evidence, and which can, for example in the case of the United States, consider itself to be the ‘land of the free’ despite centuries of slavery, a genocidal relationship to native populations and a long tradition of legally-permitted racial segregation. Such support through mythic belief could be the case even for those flawed examples of states that might otherwise deserve to collapse from within if their citizens ever subjected their system’s claims to legitimacy to

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purely rational cognitive yardsticks and evaluations. In this respect, Schmitt’s theory of how political myths can operate to buttress democracies, even grossly flawed ones, arguably shines a welcome light upon cultural processes that make it possible for rationally questionable constitutional narratives to both secure and sustain their authoritative status as a key part of a nation’s public life. One mythic element contained in Schmitt’s account of democracy refers to a belief in an elected sovereign power somehow located above the fray of pluralistic party political and wider group conflicts within civil society. A mythic image, invested in the figure of a directly elected President is supposed to be able to personify symbolically not only the interests of ‘the people’ and ‘the national interest’, but the nation itself (Schmitt 1932 1988). This explains Schmitt’s claim, which is out of step with his wider theories, that only this elevated and non-political symbolic office-holder is able to ‘guard the constitution’, and to represent the superior claims of ‘we the people’ against the intense particularism of rival factional interests. Schmitt’s political myth may have particular relevance where anti-democratic political movements attract massive popular support. This was the case when he originally published this unfortunately unsuccessful instance of authoritarian political mythmaking supportive of Weimar democracy, directed against its subversion by both communism and Nazism (Schmitt 1932). Schmitt’s late Weimar writings promote the idea of the office of President as an elevated post performing the classical mythic function of rendering the nation visible to itself as the former’s worldly representative. The figure of the President is expected to not only embody but also – in part – operate as an agent for the collective ‘political will’ of the electorate expressed directly through, say, regular referenda. The democratic belief here is that the establishment and reiteration of a particular nation’s political structures and systems of public authority are essentially mediated by ‘the popular will’ of a singular ‘demos’. Such will includes generic principles, such as republicanism and/or liberal constitutionalism. These have been positively affirmed (and thereby at least temporarily legitimated), during earlier processes of constitutional reform or revolutionary transformation. As a result, they are expressive of particularly concerted forms of popular sovereignty. Examples include the French and American Revolutions, the creation of the Weimar Republic in 1919, and the articulations of ‘people power’ that, during the late 1980s and 1990s, saw communism implode within Eastern Europe at least, or the revolutions in Egypt and many of its neighbours during 2011. Once popular sovereignty has affirmed such basic principles, which have become widely accepted, even taken for granted as self-evidently valid over many decades, then these attain a comparatively entrenched – even legendary and metaphysical – status. Hence, it requires more than a fleeting and one-off majority decision,

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such as a temporary bout of fascistic nationalism, to invalidate and/or abolish them at a stroke (Kalyvas 2008: 138–42). For Schmitt, the power of democratic myths and principles of selfgovernance suggests that it has become literally nonsensical, illogical and even self-contradictory to refer to any set of politically invented constitutional principles as somehow ‘inviolable’, ‘sacrosanct’ or ‘fundamental’. To do so implies that the decisions of the dead, even ‘founding fathers of the nation’, could ever eternally govern the living (Schmitt 2004b: 71–3, 77–9). And yet, certainly at the extra-rational level of the representation of the living cultural significance of democratic values and practices, such figurative expressions, reiterating theological beliefs, are entirely intelligible as political myths, even in one sense reasonable. Consider, for example, the near absolute right of freedom of expression of America’s First Amendment, which is widely considered an ‘inviolable’ basic right of citizens – even in the context of extreme pornography, flag burning or genocide denial contexts. The idea that all citizens of this state, ranging from owners of media empires to illiterate homeless persons with no access even to the internet, possess in practice an ‘equal voice’, is clearly ridiculous as a sociological proposition. Yet, the political myth that all Americans possess, as part of their birthright, an equal right to enjoy unregulated freedom of expression, still appears to exert a massive influence in that regime’s political culture: one which may, on balance, and in limited areas of application, strengthen aspects of democracy. Schmitt’s model of political myth provides an account of how even a decisionistic mode of Presidential governance, characterised by wideranging and discretionary forms of law-making and law-enforcement powers including constitutionally authorised emergency measures, can still remain generally bound and constitutionally accountable to overarching trans-generational principles. It suggests that even institutions possessing illiberal and authoritarian powers, such as the prohibition of specific organisations dedicated to the destruction of democracy, can embody democratic principles, and indeed be urgently required for the latter’s defence. For example, following an actual (or cynically staged) terrorist outrage, a political leader may seek to obtain a mandate from a majority vote to ‘do whatever is necessary to ensure public safety’ (and here recent US anti-terrorism measures spring to mind). Yet, on Schmitt’s interpretation, possibly influenced by Savigny, even this open-ended authorisation would not necessarily authorise and legitimate the removal of the long-standing, and by now legendary, principles of ‘presumption of innocence’ and habeas corpus. It is as if their implicit endorsement by numerous generations of a cultural tradition as contextually appropriate to the distinctive features of their ongoing way of life, adds substantial additional posthumous votes to the retentionist side of any debate concerning their replacement.

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Schmitt argues that the defence of democracy must presuppose, or even positively require, deliberate myth-making to supplement more rational forms of justification. This is because historical evidence suggests that every viable ‘demos’ is necessarily delimited by questions of national ‘identity’ and territoriality in some way. Every democratic election, or associated procedures of political will-formation, tend to differentiate between those who are entitled to vote and participate, and the remainder. Such differentiation is typically based on criteria of citizenship and nationality status. Certainly, no national or regional democratic election is ever open to an undifferentiated ‘humanity at large’. For Schmitt, it is not ‘humanity’ who comprises the electorate but a national, regional or even local group of constituents, which is comprised of a plurality of cultural factors, each of which contributes to citizens’ widely-shared sense of belonging together within a common nation of which, to a greater or lesser extent, most feel part of: [A] people individualised through a politically distinctive consciousness. Different elements can contribute to the unity of the nation and to the consciousness of this unity, such as common language, common historical destiny, traditions and remembrances, and common political goals and hopes. … the feeling of national belonging. (Schmitt 2008a: 262) For Schmitt, a modern democratic nation state is thus founded on the ‘nationality principle’: ‘a nation forms a state and a state incorporates a nation’ (Schmitt 2008a: 262). Hence, a democratic nation state is founded upon cultural notions of what it is deemed to mean to belong to a distinct people, or nation. A nation remains subject to the jurisdiction of a particular national government and legal system allowing a broad match between the distinctive orientation and order of the two. It follows that where a state encompasses two or more divergent peoples with different religious and cultural traditions and future aspirations for succession, as was the case in the former Yugoslavia, and with many African former colonies and even Northern Ireland, then democratic unity often becomes more difficult to secure and sustain. In this context, Schmitt argues that prevailing understandings of ‘national identity’ – democratic equality as between fellow citizens – are shaped, to varying extents, upon extra-scientific, mythic constructs. These include a range of nationalistic historical narratives relating to ‘we the people’ and supposedly ‘distinctive’ and emotionally-charged national-cultural or linguistic features, including folk songs, legends and elevated ‘national figures’. It follows that democracy cannot be simply opposed to myth – as if these represent mutually exclusive phenomena. On the contrary, Schmitt expressly recognises the active and inspirational role played by various

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nationalistic myths, including war memorial events and those celebrating national liberation, or other revolutionary struggles. These may even prove sufficiently powerful at the emotive and rhetorical levels to help integrate individuals, even those who do not speak the national language, into a sense of feeling part of a shared nation, into a ‘feeling of national belonging’ (Schmitt 2008a: 262). In this respect, it is important to recognise how specific political myths, symbols and legends, which have a dubious relationship to historical fact, contribute to the ‘conscious willing of this commonality’. A case in point is the British nation’s annual celebration of ‘Dunkirk’ as a triumph of national spirit, rather than an inglorious and unexpected retreat following a series of military failures. Only an extreme type of liberal rationalist could argue that movements towards enhanced self-governing and law-making powers for a Scottish Parliament and Welsh assembly, or previously for Irish self-rule, which are clearly democratic demands in one sense, have not been shaped by various nationalistic chauvinist myths relating to distinct cultural identity of ‘we the people’, or that such influences undermine their democratic credentials. The presence within the ‘United Kingdom’ of self-defined English, Welsh, Scottish, Irish and Northern Irish peoples (together with various deeply-felt internal sub-divisions of multiple kinds) will mean that belief in the idea of a singular and homogeneous ‘British people’ continues to function as a political myth, albeit one vulnerable to decline and fragmentation at the hands of, for example, a distinctly English nationalism. The idea of nationhood also operates mythically insofar as its deployment selectively constitutes an imagined national community. It does so by not only embodying a grossly simplified interpretation of a historical reality but also by filtering out any sense of the essentially pluralistic and discrepant elements of ‘national life’. Such nationalistic conceptions of ‘the nation, our nation’ are constituted, in part, through mythical belief rich in political implications, and understood as a self-evident truth, or even truism. Schmitt expressly recognises that at least from the mid-19th century, essentially political demands for, say, ‘an Irish nation state for the Irish people’, or Palestinian or Jewish states for the Palestinians and Jews, has widely been defined as a ‘normal’ or ‘natural’. This is despite the fact that nature and biology have little to do with the cultural self-differentiation of such peoples unless and until they are actually socially defined as having such a significance, which of course is an entirely contingent matter (Schmitt 2008a: 262). If Schmitt is right in his claims concerning the constitutive role of myths for democratic political cultures and institutions, then such deliberate acts of constructive supplementation of democratic thought with extra-rational, mythic elements hardly merits dismissal as self-evidently anti-democratic (cf Schmitt 2004b: 59–61; Christi 1984; Kalyvas 2008; contra Bottici 2007). Indeed, there is much to be said for his view that neither the idea of

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‘government of and for the people’, nor the pragmatic realisation of ideas of popular sovereignty, can entirely jettison mythic elements. These elements may be more noticeable to foreigners than to those who have grown up with them and more easily take such myths for granted as though they are somehow obvious or ‘natural’ (Schmitt 1988: 31). Controversially, Schmitt argues that, from the mid-19th century onwards, distinctly democratic ideas, particularly specific political mythic beliefs in ‘the people’ as a political unity, have effectively overpowered parliamentary myths. He identifies the modern state’s democratic myth of ‘government of and for the people’, including the idea of a mutual identity between governments and governed as ‘a triumphal march’ across the ‘Western European cultural world’. Partly through the contribution of appeals to this underlying myth of the presumed homogeneity and ‘identity’ of ‘we the people’, democratisation has become identified with historical ‘progress’. In turn, resistance to this movement is widely labelled as inherently regressive: ‘an empty defence, the protection of historically outmoded things’. For Schmitt, democratic ideas have triumphed as ‘an irresistible, advancing and expanding force’, with their truth widely judged ‘selfevident’ and ‘obvious’. Supported in part by the helpful contribution of ‘mythologising’, these ideas have even become ‘plausible to great masses’ (Schmitt 1988: 22–4). Here the idea is of a unified people’s singular will of, that is, ‘the will of the people’, certainly exhibit mythic elements. In particular, this belief abstracts from the reality of a diverse pluralism, a ‘sociologically and psychologically heterogeneous’ collective and, on this basis, it visualises the demos as a merely presumed and fictive ‘homogeneity’, as a ‘national unity’. For instance, following a democratic election a government can, to further legitimate its rule, certainly appeal to some, but not all, of its earlier manifesto commitments as policies endorsed by ‘the will of the people’ that it is duty-bound to implement. The fact that this commitment was drawn up by a handful of unelected party officials and was not even noticed by the majority of those who voted for this party, does not dent such rhetoric. Such appeals to a largely mythic ‘will of the people’ can be expected even where less than 50 per cent of the electorate (which already excludes minors and some categories of adults including resident non-citizens) actually voted for the government party, and if other political parties promoting diametrically opposite policies actually secured more total votes. For example, a conservative party may secure power with 35 per cent of votes cast, with socialist and communist parties obtaining 33 per cent and 32 per cent respectively. In this situation, nearly two-thirds of voters expressed a clear preference for a shift towards a leftist policy agenda. However, the power of the one nation myth means that it remains possible for the resulting government to successfully make its rhetorical claim that ‘the people’ have chosen a conservative government.

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Such rhetorical appeal to ‘the will of the people’ is possible because the will of that minority (or even majority) who voted for various alternative political parties, or refused to vote at all, can either be conveniently ignored, or misrepresented as an implied endorsement. In that sense, the reality of governments endorsed merely by a minority of those citizens who actually voted (which itself is rarely above 80 per cent of those entitled to vote) is strategically misrepresented as a complete totality. If properly recognised free of the impact of the one nation myth, this reality would clearly contradict the idea that the result of this election expresses ‘the will of the people’, where the ‘demos’ is strategically interpreted as a singular homogeneity, that is, ‘the people’ as opposed to ‘our peoples’ in the plural. The point here is neither to criticise any particular electoral system, nor to dismiss this democratic myth as delusional given the undoubted fact of pluralism. It is simply to draw attention to the constructive role specific political myths often play in supplying cultural supports for the institutional practices and ideologies of modern democracies. Given the deplorable track record of most non-democratic regimes, combined with the fragility of purely rational cognitive support for democratic values and practices, there may be good consequentialist arguments for a Schmittian approach to this political myth. In one respect at least, this approach may well both acknowledge and positively welcome the beneficial practical effects of such political myths, albeit without being seduced by their rhetorical messages. On the other hand, the comparison between projected and imagined homogeneity of a specific demos, and actual pluralities within the latter, both opens up and sustains a critical distance between mythic cultural depictions and those palpable empirical realities revealed by social scientific research. Such comparison is conducive to a self-critical form of democratic theory that is no longer deceived by ‘one nation’ myths (Schmitt 1988: 25–6). Indeed, Schmitt states: All democratic arguments rest logically on a series of identities … of governed and governing ... [However] these identities are not palpable reality, but rest on a recognition of the identity. It is not a matter of something actually equal legally, politically, or sociologically, but rather of identification. … they can never reach an absolute direct identity that is actually present at every moment. A distance always remains ... (Schmitt 1988: 27) In short, and following Rousseau, Schmitt thus argues that democracy requires – or perhaps more precisely presupposes – adherence to a widespread cultural belief in a measure of substantive political unity of a singular and distinct people: one which is clearly organised into a spatiallydelimited nation state. Democracy thus has been and remains tied to the political myth that there exists a distinctly identifiable group, or ‘demos’,

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broadly self-identified as ‘we the people’. The latter can be interpreted as the locus of popular sovereignty expressed through a combination of regular plebiscites and a responsive populist – if perhaps still authoritarian – Presidential government. Since the ‘demos’ of democracy is that of a distinctive people, the concept of equal rights takes on a dual character. It remains at least implicitly founded upon a distinction between citizen, considered as equals, and noncitizens legally classified as ‘aliens’, between those who legally belong to a specific demos who can, therefore, claim specific citizenship entitlements such as voting rights, and the remainder of ‘humanity’. Questions of where a citizen currently resides are not strictly relevant to their citizenship status. Democracy thus requires both the recognition of the core principle of ‘equal rights for all citizens’ based upon a presumed or imagined mythic homogeneity, and the sharp differentiation between citizens and noncitizens. For Schmitt, a failure to openly differentiate on this basis may be misrepresented in mythic terms of an anti-discrimination ethos of total inclusiveness which imagines that it can make ‘exclusions miraculously absent’. The myth of total inclusiveness constitutes a dangerous depoliticisation, which risks de-legitimating those who politically dissent, or otherwise oppose, this posited ‘norm’ (Rasch 2005: 255–6). By contrast, the mythic beliefs contained in the ideology of humanity includes a ‘natural’ (or ‘pre-political’) right of equality of all persons considered purely as such. This classic liberal ideology refers not to an existing ‘state form’. Instead, it embodies an ‘individualistic humanitarian ethic and Weltanschauung [worldview]’. According to Schmitt, the idea that individual citizens are first and foremost ‘abstract persons’ and possess basic civil and political rights primarily, or exclusively, upon this basis alone as ‘human’ rights, operates as a distinctly political myth whose implications violate democratic values, with the exception of a collective right to self-determination. In addition, this mythic belief can potentially lead to a cruel deception of, for example, stateless persons: ‘the alien or noncitizen … is not helped by the fact that in abstracto he is a “person”’ (Schmitt 1988: 13). The criteria for making the citizen/alien distinction will typically include a strong – if perhaps implicit – belief in a cluster of specific myths relating to supposedly essential and necessary ‘core’ differences between ‘our people’ and the qualities of comparative ‘outsiders’. For instance, the idea that it is possible to identify viable criteria for distinguishing ‘true Irish people’ from the remainder of humanity. Yet, according to Schmitt, the content of these categories is given not by any biological laws of nature, or supposedly naturalistic ‘racial’ differences. Instead, it derives from an essentially contingent, and even comparatively arbitrary, type of cultural construct relating, for instance, to the interpretation of specific religious, cultural, ethnic or linguistic differences.

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A democratic constitution proclaiming that ‘we the people’ possess full and complete sovereignty represents a fundamental feature of any properly democratic and legitimate modern state. However, this can only arise on the basis of the mythic assumption that ‘the X people as such’ exist as something utterly distinctive and homogeneous – such that immigration, nationality and electoral laws can, in principle, always make a clear-cut and rational distinction between insiders and outsiders (Schmitt 1988: 8–9; Balakrishan 2000: 71). As already noted, Schmitt expressly accepts the existence of collective differences and differentiations within and between nation states whose acceptance can form the substance of specific political myths. What he does call into question, however, is the idea that these presumed and imagined homogeneities are rooted in distinct and unique material qualities, which can be scientifically identified as both essential and necessary. For example, within the United Kingdom, it has become common to refer to the Scottish, English and Welsh ‘nations’, on whose basis a Welsh Assembly and Scottish Parliament have arisen to exercise restricted forms of sovereignty. Yet, the distinctions between ‘the Welsh’ as such, ‘the Scots’ and ‘the English’, and the potential mediating role of both more particularistic and generalised British and European identities, are far from clear-cut or unambiguous. We certainly cannot make such distinctions by reference to fluency in the Scottish, Welsh or English languages and associated cultural forms and affiliations. If Scotland ever attained full independence, it would be a complex – perhaps almost impossible – task for the resulting Scottish government to neatly distinguish and separate out ‘us true Scots’ from the remainder of British citizens – even for nationality and passport purposes. Yet, those who have succumbed to nationalist myths of ‘the Scottish nation’, and even more dangerous biological racist myths of ‘Scottish blood and soil’, can – through their reliance upon a presumed and mythic homogeneity – happily ignore challenging questions posed by a pluralistic social reality. From a Schmittian perspective, this interpretative practice is analogous to how believers in various creationist myths can blithely ignore scientific theories of evolution on the dubious basis that proof by faith alone is sufficient. And yet, insofar as such myths have widespread currency within Scotland for example, they contribute positively to the possibility of an independent and democratic Scottish nation state. Democracy does not require its citizens to exercise rational judgements that outsiders can accept as compelling at a purely cognitive level. In short, according to Schmitt, the exposure of such substantive beliefs in the reality of a singular and homogeneous people as mythic stems from the lived experience that these supposedly essential differences are typically contingent and cultural constructs, which are permanently at risk of mutation, reinterpretation and even total collapse. Evidence from

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a social reality characterised by an irreducible pluralism and evolving heterogeneities regularly exposes the fact that such mythical constructs are merely posited, imagined and presumed homogeneities, on which rests the ‘nation’ part of ‘nation state’, and are therefore always threatened with implosion. Outside the realm of mythic interpretations essential to the belief in a distinct ‘demos’, modern societies at least can no longer be realistically understood as homogeneity without heterogeneity. It is in this sense that a Schmittian approach to public law questions of democratic governance has to clarify the basis on which a ‘demos’ arises from a definitive political myth.

Dangerous political myths: Marxism, Fascism and Liberalism The fact that Schmitt adopts a generally sympathetic orientation towards myths supportive of democracy stems not from their status as mythic phenomena. It arises instead from their presumed beneficial impact, at least when compared with various non-democratic alternatives. Indeed, no viable Schmittian approach can adopt an uncritical orientation towards political myths irrespective of their content, context and the effects of their concrete application. Schmitt recognises that Sorel’s theory of myth is important as a diagnostic tool to understand one of the social psychological well-springs of great historical changes, including Marxist revolutions. However, this does not imply his endorsement of the specific contents of these mythic beliefs. On the contrary, Schmitt sets out a series of criticisms of many of the political myths he addresses from the Leviathan to Sorel’s promotion of belief in a general strike as a gateway to human self-emancipation. He also appears to distinguish problematic forms of political mythmaking, such as that associated with the name of Machiavelli/ ‘Machiavellianism’, from the scholarly study of myths by Vico and others, as already noted, such analysis properly recognises their ‘force and meaning’ within a specific era (Kahn 2003: 74). Schmitt notes that ‘on the basis of his name and his political writings, Machiavelli did become mythic’ (Schmitt 1996b: 84). His name was encoded as a political myth ‘with greatest ferocity’ at the end of the 16th century under the impact of the incredibly monstrous Bartholomew massacre of 1572. For more than 400 years afterwards, the idea of ‘Machiavellianism’, supposedly expressed in disconnected phrases, has operated within religious and political conflicts as a propaganda device, as a ‘moralistic horror picture’. This myth ‘has evoked an embittered and embattled symbol, and for that reason has continued to provoke the image of an especially effective and politically vivid celebrity’. It has been deployed politically as ‘an effective summons to battle’ for Protestant northern European states pitted against Spain, France and other predominantly Catholic southern European

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nations. British propaganda during World War I further demonstrated the ‘propagandistic striking force of this image’: ‘By gathering moral energies that permit themselves to be mobilised in the struggle against “Machiavellism,” the shapers of Anglo-Saxon world propaganda and American President Wilson were able to stage a modern “crusade for democracy” and direct it at Germany’ (Schmitt 1996b: 84). Not only has this myth functioned as propaganda within such conflicts but it has, in return, received additional and more general ‘momentum’ from such deployments, including at the hands of Mussolini’s fascist ideology. The latter embraced this mythic figure as ‘the intellectual originator of a political era, as a conqueror of a moralistic lie and a political cant, and as the exponent of the anti-myth of heroic relevance’ (Schmitt 1996b: 84–5). And yet Schmitt recognises that Mussolini’s own deployment of this activist and nationalistic myth was founded upon the deliberate deception of those who came to believe in it. It constituted an intentional deception which could, for all practical purposes, only operate as a historical ‘truth’ insofar as sufficient people were seduced into accepting and acting unreservedly upon its rhetorical implications to thereby bring about the previously non-existent ‘great nation’. It differed from its liberal counterpart, the deceptive equation of democracy with parliamentarism, only with its emphasis upon wilful action. Both liberal and fascist myths are dangerous for Schmitt because of how their imagery and associations tend to advance a politics of coercive manipulation: one that is founded upon deception expressing a hidden contempt for citizens as a presumably compliant target for propaganda. As Kahn recognises, ‘Schmitt is attentive to the power of aesthetic form to compel the listener or viewer’ (Kahn 2003: 94). Such coercion can – as in the case of liberal parliamentarism – require the encouragement of passivity, although this may not be strictly necessary. For example, the fascistic myths of Mussolini required mass and uniform displays of active acclamation (Schmitt 1985: 76). By contrast, a Schmittian agenda promotes the counter-myth of ‘we the people’. It does so to preserve and advance the preconditions for democratic self-government on the basis of a programme of enhancing what already exists in an unfulfilled state: the capacities for citizens to actively participate in an undeceived form of political self-determination within the institutional context of a strong and coherent modern state capable of defending its chosen way of life. Hence, for Schmitt, the problem with political myths stems less from their mythic elements than from the specific programmes and actions they inspire amongst those who believe in them as fundamental truths. It is simply wrong to set up the issue of whether Schmitt is either for or against the distinctly aesthetic elements of political myths in the abstract, and then attempt to show he was not consistently for or against (cf Kahn 2003: 74).

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This dubious either/or mode of interpretation of Schmitt’s work misses the point of his consequentialist quasi-utilitarian position on political myths as a sociologically interesting cultural device for achieving ideological mobilisation, towards concrete policy goals. The key normative question is whether those goals involve producing something truly life enhancing or merely destructive, a silk blouse or a poison gas. Schmitt relies here upon an undeveloped ethic of the importance of an undeceived and selfconsciously willed type of political action within human affairs free of unrecognised mass manipulation, including processes of depoliticisation and neutralisation. For instance, from at least 1925, Schmitt’s work is consistently critical of US imperialism and the latter’s propagandist ideologies drawing upon Wilsonian liberalism in particular. His analysis of the propagandist deployment of Machiavelli in World War I needs to be read as a forceful critique, not a celebration. Schmitt expressly notes with approval how this image had been intellectually discredited by, for example, none other than Hegel, and yet retained its rhetorical force and momentum well into the 20th century (Schmitt 1996b: 85). Schmitt accepts that republican forms of democracy are the sole mode of legitimate government for a modern nation state, such as Germany, hence, he regards right-wing conservative calls for a return to monarchical government as absurdly conservative and anachronistic. Indeed, from a Schmittian perspective, one danger posed by some but not all political myths is that they can encourage non- or anti-democratic modes of government. In violation of democratic imperatives, such myths promote the irrational exercise of revolutionary violence, even entirely unconstitutional forms of ‘direct action’ (Schmitt 1988: 64). Once such dangerous myths have taken root within a political culture, they exhibit a resistance to rational contestation or refutation, akin to that of a virus with an acquired resistance to antibiotics. The most one can hope for is that the practical results of specific myths are not dangerous: ‘No clear chain of thought can stand up against the force of genuine, mythical images. There is only one question that such myths elicit, and that is: Does its path in the overall march of political destiny develop into good or evil, right or wrong?’ (Schmitt 1996b: 82). There is, therefore, something misconceived in attempting to counteract dangerous political myths, including those with anti-democratic goals, with rational argumentation or scientific evidence alone, as if a mythic belief is akin to a newly falsified scientific explanation. Jurists should be less concerned with the truth-value of the cognitive claims of such myths exhibited by such myths, than with the political implications of the fact that groups believe in them and act upon the implications of their merely perceived truth. Schmitt suggests that to effectively confront dangerous political myths requires instead a measure of utilitarian consequentialism

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and sheer political realism. It is in this context that we need to assess Schmitt’s receptiveness to counter-myths, and sometimes resort to such rhetorical devices as an effort to ‘fight fire with fire’. In relation to Sorel’s myths of the general strike, Schmitt even notes the paradox of trying to critically evaluate and reply to an ‘irrationalist theory as decisive as this one with argument’. In practice, Sorel’s revolutionary agenda validates itself through bypassing even a minimal level of discursive rationality (Schmitt 1988: 72). Any such critical reply that seeks to respond effectively to its mythic claims can only point out contradictions and discrepancies. Amongst these the sheer inevitability that within a postrevolutionary context, original activist myths, tied to the economic sphere, will have to be ‘renounced’ as a price to be paid for the stabilisation and further economic development of the new socialist order. The latter will inevitably require a utilitarian, even bureaucratic, form of state managerialism ‘that is empty of myth’ (Schmitt 1988: 73). In other words, one result of acting upon those socialist myths promoted by Sorel could be the creation of a state of affairs that destroys the foundations of the underlying myth, and which promotes disillusionment and alienation from socialist beliefs. As Gourgouris recognises: Finally, facing the formidable opposition of Sorel, Schmitt takes up two points of critique. The first is of a practical nature, suggesting that the irrationalist insurrectionary tactics of anarcho-syndicalism can never constitute an affirmative politics (as we would say in today’s terms), because inevitably anarcho-syndicalism’s political terms of struggle, at some point, would have to confront the economic sphere. This would lead, by definition, to a certain bourgeois domestication of principles – to a domestic order of rule in the literal sense of oikonomia. (Gourgouris 2000: 1498) To offset the steady decline in credibility of a dysfunctional parliament, Schmitt placed greater emphasis upon governance through a directly elected President, whose policy initiatives had to be regularly endorsed by a plebiscitary ‘direct democracy’ (Schmitt 1994: 59–62, 64, 86, 89). Although illiberal, such proposed reforms were aimed at counteracting the dangerously irrational tendencies towards insurrectionist and violent forms of ‘direct action’ by mass movements, particularly communism and fascism. In part, these tendencies were each inspired by rival, if equally ‘dangerous’, political myths (Schmitt 1988: 64, ch 4). Hence, and as will be discussed more fully below, Schmitt’s own work implies a need to recognise provisional distinctions between comparatively harmless and dangerous myths, between rational, non-rational and irrational mythic beliefs, and between practically effective and ineffective political myths. Furthermore, in a discussion of ‘irrational’ deployments of

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direct action, Schmitt quotes a speech by Mussolini (itself clearly influenced by George Sorel) appealing to an openly acknowledged ‘myth of the great nation’ with an expansionist entitlement as a mobilising device for revolutionary transformation. This serves as confirmation that mythical images can exercise dangerous political implications – even when their proponents are openly agnostic as to the entire question of whether they are true or false (Schmitt 1988: 75–6). In turn, this raises the question of whether Sorel’s promotion of socialist myths concerning a general strike as the key revolutionary act, or that of ‘the great nationalism’ mobilised by fascists and nationalists more generally, can be considered to be ‘rational’? Schmitt suggests that the decision to deploy such political myths can be considered rational only in an instrumental sense of technical thinking, of an ‘effective’ propaganda technique to strive for a situation that cannot itself be rationally justified independently of the belief system itself, akin to the technical ‘rationality’ and ‘effectiveness’ of an electric chair as an efficient killing device. Schmitt is often bitterly critical of such purely instrumental rationality, for whom questions of the ‘effectiveness’ of a measure in moving from situation A to desired situation B, becomes an end in itself. This is because of the latter’s fundamental indifference to the question of whether B, the ultimate goal and end result, is for instance the production of either a beautiful silk blouse, or a deadly poison gas (Schmitt 1996c: 15). More generally, Schmitt recognises that dangerous political myths often generate and project various hate figures. He gives as examples a specific image of ‘the bourgeois’ as the alleged public enemies of humanity, as world historical figures of ‘absolute inhumanity’, and Machiavelli as a horror image. In turn, these inspire attacks from all quarters, with Schmitt noting: ‘I believe that the history of this image of the bourgeois is just as important as history of the bourgeoisie itself’ (Schmitt 1988: 73–4; cf Schmitt 1996b: 85). One version of Sorel’s theory of myth appears amongst radical right-wing theorists, such as the Spaniard Donoso-Cortes. The latter’s attacks upon liberal republicanism knew few bounds. He also responded to anarchism through the mythic idea that this movement was evil personified (Schmitt 1988: 70). Schmitt’s writings are generally critical of all modern forms of ideological ‘demonisation’, including those made in the name of ‘humanity’ and its alleged pre-history under capitalism. It is reasonable, therefore, to generalise this critical stance in relation to the Marxist demonisation of the capitalist middle classes, or ‘bourgeois’ (Schmitt 1988: 74). Cognitive recognition of the theoretical importance of myth for the task of incisive historical analysis and explanation of events is – as Sorel rightly claims – the very opposite of ‘living the myth’ in the mode of a disciple, or even practitioner. Indeed, it remains all too easy to quote Schmitt’s paraphrases of Sorel as if these statements constitute an uncritical

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affirmation of political myth-making across the board. This dubious interpretation conveniently ignores the fact that his discussion takes place under the chapter heading ‘Irrationalist theories of the direct use of force’, and is followed by a series of sharp criticisms of irrationalistic elements of Sorel (cf Bottici 2007). Schmitt certainly expresses various marked reservations in relation not only to Mussolini’s insurrectionary myth of the ‘great nation’ as a call to battle, but concerning Sorel’s projection of the socialist myth of the general strike as the industrial workers act of selfliberation from class-based oppression. In a specifically Marxist version of the ideology of humanity, this strike is supposedly destined to end the ‘prehistory’ of humanity (Schmitt 1988: 68). The myth of ‘national identity’ may co-determine the possibility of democratic forms of domestic politics. However, Schmitt clearly recognises that the cognitive basis of nationalistic sentiments cannot be rationally justified – least of all by reference to pseudo-scientific naturalistic criteria of ‘race’ or racial descent. Hence, a Schmittian approach must remain sharply critical of those political myths whose contents naturalise distinctly cultural determinations, as in the case of pseudo-biological myths concerning ‘race’ and ‘racial difference’. Indeed, one of the attractions of Schmittian analysis is that it relativises such dubious interpretative cultural constructs. It thereby implicitly opposes their naturalisation by fascistic and racist ideologies as something racial and biological. Schmitt’s analysis of Hobbes, particularly the leviathan myth, defends him from the charge that his doctrine that ‘authority not truth is the source of law’ is little more than ‘a slogan of irrational despotism’ (Schmitt 1996b: 44). Viewed consequentially, it re-affirmed a pragmatic and qualified form of political rationalism, the wisdom of realising that in a context of massively destructive European religious ‘just wars’ centred on sectarian questions of ‘the truth’ of competing religious doctrines, the modern state and its positive laws must remain essentially agnostic recognising formal equality between competing religious doctrines. The greatest good for the greatest number lay in defusing, not aggravating or participating in, such disastrous religious sectarianism by finding a form of legitimation independent of religion. Schmitt positively welcomes Hobbes’ overall political rationalism on this point in that it promoted peaceful coexistence whilst still seeking additional (extra-rational) forms of popular support from the Biblical myth of leviathan. As I have already noted, Schmitt’s criticism of Hobbes focuses upon his choice of an inappropriate and ultimately counter productive type of myth. His decision to opt for this model of state and legal authority and to bolster it with additional support from mythic sources was, in the original context, entirely rational. Hobbes merits criticism according to Schmitt for not being sufficiently reflective or sociologically aware of the implications of the particular myth he selected because this inappropriate choice undermined

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the fulfilment of his own political rationalism, and was only in that sense ‘irrational’ (Kahn 2003: 76). In sum, the fact that Schmitt devoted nearly half of his book on Hobbes to the myth of leviathan does not, by that fact alone, align a Schmittian agenda with the forces of irrationalism. On the contrary, much of his analysis, including his obvious appreciation of Hobbes’ own political rationalism and his efforts to demonstrate a compelling case with a combination of argumentation and historical evidence, exemplifies an unremarkable form of scholarly rationalism. It is on this basis that Schmitt can critique the irrationality of specific and political myths of liberal parliamentarism, Marxist revolutionaries and Fascists because of their dangerously irrational impact, without risking well-grounded charges of hypocrisy. There are other aspects to questions of rationality raised by political myths. Our concrete attachments to a distinct place, ‘sense of nation’ and national ‘differences’, and of ‘belonging to a community with a common fate or destiny’, operate primarily as non-rational and emotional affiliations (Schmitt 1988: 75). Such cultural factors supportive of nationalism and patriotism remain at risk of mobilisation (and ‘naturalisation’) in favour of distinctly anti-democratic movements – hence Schmitt’s discussion of them in The Crisis of Parliamentary Democracy under the heading ‘irrationalist theories’. Given that a Schmittian approach recognises that democratic criteria operate as the benchmark for the legitimacy of modern states, to remain consistent it must reject fascistic and Marxist mobilisation of political myths. And yet it must also take seriously the sociological question of their comparative rhetorical power and specific effects in relation to the perceived legitimacy of state actions. Schmitt notes that both extreme conservative nationalists and revolutionary socialists bent on extra-constitutional forms of social transformation, typically rely upon common political myths and mythic projections of the qualities of shared enemies, such as freemasonry (Schmitt 1988: 75). This calls into question their self-image of representing diametrically opposite political movements. It suggests, perhaps, that both exemplify an equally irrationalist and theoretically unacceptable form of totalitarianism. In both cases, the employment of political myths designed to usurp the state’s monopoly upon the use of armed force, risk destabilising every aspect of existing social order in favour of only one segment of society. If this occurs, then in practice unknown and potentially dangerous consequences can arise. In addition, such deployments can undermine the state’s vital role of providing a unifying centre for political life. The state is responsible for not only holding together an overall and internally unified institutional framework supporting a healthy plurality of divergent sub-cultural formations albeit within a broadly shared politicallegal and constitutional culture, but also for allowing a measure of

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cooperation between them. Whilst one constructive role of myth is to encourage a sense of community, public spiritedness and joint responsibility for a shared fate, political myths can also operate in a double-edged manner by subverting this achievement. One example is when each collective group mobilises its distinct interests and concerns around a particular insurrectionary myth, in which a particular agenda is misrepresented as that of the whole of society. Where this ideological strategy achieves a measure of success, it can inspire imitation from groups with an equally particularistic agenda of interests and concerns. In turn, this escalation of fake universalisations of particular interests may lead to an unravelling of hard-won social cohesion. Indeed, if this fragmentation escalates out of control, it risks culminating in a permanent civil war between irreconcilable interests. Here, Schmitt notes: ‘Of course the abstract danger this kind of irrationality poses is great. The last remnants of solidarity and a feeling of belonging together will be destroyed in a pluralism of an unforeseeable number of myths’ (Schmitt 1988: 76). Schmitt opposes a number of political myths directed against Germany’s Weimar democracy. He certainly expresses sympathy neither for revivals of monarchical myths, nor for those promoting the fictions of Italian fascism as providing a blueprint for Europe-wide transformation. He also opposed proposals for a pro-Catholic military dictatorship. Schmitt also rejected the myth promoted by Junger, and other right-wing German theorists, of the worker–soldier state involving the radical mobilisation for a single militaristic cause. He characterised this as a form of ‘quantitative’ total state characterised by limitless public sector intrusions into civil society (Schmitt 1988: 1–2; Balakrishan 2000: 75–6, 133–4, 306). Schmitt addresses political myth as a vital ingredient within the potentially irrational context of mass politics, where questions of the distribution and redistribution of relations of wealth and power are rarely determined by the force of better argument alone. He recognises that Sorel devised a model of political myth as a creative supplement to a revolutionary Marxism. The latter affirms the possibility for somehow fully overcoming capitalism. However, Schmitt criticises this approach for its overly deterministic and materialistic framework. It is linked to the idea that ‘iron laws of necessity’ exert their own dialectical logic upon human events. By reducing historical complexity to a simple idea of a final class conflict between capitalist economic classes and the proletariat, which the latter was somehow predestined to win, Marxism creates a mythic interpretation of history as the second coming of communism – albeit one capable, under specific circumstances, of exhibiting great rhetorical and motivational power. However, through its overly-deterministic, allegedly scientific and materialist model, Marxism risks undermining the practical realisation of socialism unless, and until, it is supplemented by a fresh and distinctly activist myth of ‘direct action’ focused upon a decisive ‘general strike’ (Seitzer 1998: 285).

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Schmitt’s criticism of Sorel – and Marxist-Leninism more generally – thus includes the claim that underlying its rhetorical appeal to social science, more specifically the alleged ‘science’ of dialectical materialism, lays a redemptive myth. The latter presumes that – by means of the wise leadership of the ‘dictatorship of the proletariat’ – society will finally liberate itself from the evils of capitalism through uncompromising forms of class struggle aiming to exterminate pre-eminent capitalist classes (Schmitt 2005b: 68, 72; Balakrishan 2000: 72). According to Schmitt, the Marxist myth assigns a saviour role to its own projected conception of the vanguard of the ‘working class’ and its epic destiny as the bearer of liberated humanity as such. This is linked to an inspirational (if empirically dubious) philosophy of history, which as already discussed is oriented towards an apparently secular form of redemption. Both these elements deploy mythic images and mythic conceptions of a ‘universal humanity’ (or species-being) to effectively ‘demonise’ the ruling classes of capitalism and their collaborators as obstacles to the ending of humanity’s ‘prehistory’. Schmitt highlights the mythic element of Marxist philosophies of history, their over-determination by pre-conceived philosophies at the expense of the findings of concrete historical research. When carried out outside this mythic philosophy of history, the latter actually provides little evidence for teleological models oriented towards a predestined and redemption goal projected by Marxist political humanism. In a number of post-war essays, Schmitt argues that one political conception that revolutionary Marxism shares with its polarised class enemy, liberal capitalism, is a common belief in a supposedly utopian ideal of ‘world unity’. This is to be achieved primarily through the application of scientific technique. Marxism thus claims to embody the ‘progressive spirit’ of a scientifically managed form of industrial modernisation destined to become a global phenomenon. Ideals of technological ‘progress’, together with associated notions of modernisation and ‘international development’, have become a secular religion, the object of mass evangelical belief and crusading practices akin to pre-modern myths. Stalin’s brutally implemented policy of rapid industrialisation and the later ‘space race’, illustrate this wider underlying tendency, rich in metaphysical beliefs, to measure the value of human life in terms of its utility for technical scientific ‘progress’ and ‘modernisation’. For Schmitt, there is a liberal constitutionalist variant of this myth. Namely, one that projects liberal values and institutions, including a specific interpretation of ‘human rights’ and the globalisation of unregulated (or ‘free’) world trade and economic investment, as a criteria of ‘international development’. These projections operate as an equally redemptive ideal and high point of societal evolution in ways that, in form at least, are broadly comparable to their Marxist counterparts.

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In sum, Schmitt claims that both these variants of political myth reconstruct a model of historical ‘progress’ in their own image, and then purport to be able to identify and differentiate ‘progressive’ from ‘regressive’ developments on the basis of criterion, which may themselves include mythic elements. And yet, in the absence of such redemptive myths, much of the entire cultural framework – including its apparently rationalistic and scientific dimensions – would collapse for lack of support. Both of these major redemptive myths of ‘progress’ also operate as a counter-myth. This occurs insofar as each castigates its counterpart as – relative to itself – ‘regressive’, and hence destined to an unrecyclable fate within the proverbial ‘dustbin of history’. In this way, Schmitt recognises that the political myths of liberalism and Marxism mutually condemn each other as anachronistic and regressive. Liberals, for example, are often happy to celebrate the collapse of Soviet socialism as marking the ‘end of history’, as the triumphant fulfilment of their own myth-based model of historical ‘progress’ supposedly creating a ‘new world order’ free of ideologically polarised oppositions and international power-blocs (Schmitt 2003). According to Schmitt’s essay ‘Die Einheit der Welt’, both liberalcapitalist and Marxist redemptive myths are impossibly universalistic. For example, each purports to speak for the future of a certain projected conception of humanity at large; and thereby aspire to world domination. Neither can tolerate pluralistic and peaceful co-existence with the other as shown by their creation of well-funded propaganda and psychological warfare campaigns directed against the ideological vulnerabilities of the other (Schmitt 1995: 504). For Schmitt, the shared mythic belief in world unification through scientific technique, including the domination of an instrumental form of rationality Schmitt terms ‘technical thinking’, necessarily carries with it the technocratic project of global depoliticisation and neutralisation, addressed in his ‘The Age of Neutralisation and Depoliticisation’ (1929) (Schmitt 1993). The latter suggests that modernity includes a projection of the idea that technique, and not politics, represents the destiny of humanity – an idea that makes it possible to consider the problem of world unity as having been settled. Yet, to remain consistent with the main thrust of his overall position, Schmitt must nevertheless reject such a belief as essentially mythical. This is because the very ideological projection of a depoliticised world demands to be recognised as a political event since the ‘central problem of the nature of world order is always a political problem’ (Schmitt 1995: 599). Despite sometimes being attacked as an irrationalist, Schmitt insists that the strategic political mobilisation of both revolutionary Marxist and Fascist myths also brings with it the ‘danger of irrationality’. This includes nihilistic resort to insurrectionary activism, armed struggle and related violence: political violence carried out virtually for its own sake – as if direct action

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was somehow its own justification. From the perspective of militant believers in such dangerous myths, which have both socialist and fascistic versions, institutional forms of politics and associated trains of diluting pragmatic compromises, appear as a ‘betrayal of myth and the great enthusiasm on which everything depends’. Such activism reiterates in pseudo-secular form, the apocalyptic Christian mythology, based upon simplistic either/or distinctions, of a final battle between metaphysical good and evil to be fought prior to the advent of heaven on earth. Indeed, Schmitt claims: ‘Against the mercantilist image of balance there appears another vision, the warlike image of a bloody, definitive, destructive, decisive battle. … absolute antitheses now appear’ (Schmitt 1988: 69). In comparison to such dangerously intoxicating rhetoric, the option of striving for stable social change through the gradualism of institutionalised democratic reforms and incremental legislative schemes, which are often shaped by compromises between political parties, appears somewhat lame. Such a moderate democratic alternative is clearly opposed to myth-driven and unrestrained ‘direct action’ by the self-appointed evangelists of a ‘new order’ (Schmitt 1988: 64). The latter target that which they take to be the underlying cause of the issues in questions that allegedly can be solved only through immediate revolutionary transformation (Schmitt 1988: 11, 13, 17). With considerable prescience, Schmitt warned that the likely upshot of the decay of public confidence in mainstream politics and governance, and the related emergence of extremist ‘direct action’ movements, could be extremely dangerous. It could lead to an escalating civil war, the triumph of the totalitarianism of a ‘quantitative’ total state, and the collapse of any form of democracy (Schmitt 1988: 64). However, such myths exert this impact by means of a strategically vital and concealed displacement of the cognitive dimension: one that threatens to treat a belief as no more than a claim to truth requiring validation at some level before it can be accepted. For example, invoking the socialist myth and symbolism of a heroic general strike as part of humanity’s self-realisation, is precisely designed to orient us away from any entirely reasonable set of empirical questions. For example, on past historical experience, do general strikes tend to make matters better or worse, even for the intended beneficiaries? Can the realisation of socialism in, for example, forced collectivisation of farms, really be intelligently equated with ‘humanisation’ and, if so, how and in what precise sense of this abstract term? Are the myths relied upon by revolutionary socialists superior, in terms of their practical effectiveness as mobilising devices, to those deployed by conservative-nationalism and fascists? By raising these entirely sensible empirical questions, Schmitt emphasises that, in the field of a simple and unreflective belief in the truth and justice of a political message and mission devoid of self-critical tendencies, a true believer is one who brackets out the question of the truth of his or her

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belief, or deals with this question in a manner that still presupposes its validity. The resulting emotive and rhetorical force will generally overpower the cognitive truth-status of whatever mythic beliefs are being relied upon (Schmitt 2005b: ch 3). If the bypassing of rational self-criticism is a structural necessity for political myths to exert their optimal effects upon an intended audience, then this raises the complex question of the relationship between political myths and unreflective aspects of cultural life more generally. It is not possible for every cultural category to be perpetually ‘up for grabs’, to be considered problematic and in need of express clarification and intellectual justification. Hence, to a greater or lesser extent, members of cultural traditions will need to take for granted the validity, meaning and appropriateness of a range of values, assumptions, prejudices and stereotypes. This includes a proportion of those making up the core of prevailing interpretative frameworks embodied in their linguistic and other conventions. The most deeply entrenched cultural prejudicial beliefs may not even exhibit themselves as prejudices precisely because they are so regularly taken for granted and accepted as a matter of course. Such beliefs thereby provide the lens through which experience ‘takes shape’ but without themselves often coming into view as a whole, and thereby becoming revealed for what they are. Notoriously, the prejudices of others, together with those associated with different cultural traditions, are easier to identify as such and criticise than our own. Thus, foreign residents often find it difficult to avoid making judgements about the comparatively ‘strange’ and ‘abnormal’ practices of their new country, in comparison with whatever they have previously deemed to be ‘normal’ and ‘familiar’. In this sense, political myths belong in part to the unavoidable interpretative realm of ‘the prejudicial’. That is, the preconceived and already entrenched as apparently self-evident or otherwise ‘obvious’ to our ‘common sense’. Through their practical application, such myths reiterate the beliefs most characteristic of this realm. The exposure of one myth may even take place through its substitution by another. This occurred, for example, when the metaphysical and religious element of natural law became undermined by a form of legal positivism still unaware of its own entanglements in the mythology, metaphors and secularised theological commitments of scientific ‘enlightenment’ (Schmitt 1993). These basic hermeneutic points concerning the constitutive role of the contents of indigenous cultural traditions, provide the wider context for a Schmittian model of myth relevant to jurisprudence. Myths, mythic symbols and images are a subset of operational cultural beliefs and representations. These are a subset of those understandings that comprise the content of specific cultural traditions, their ‘nomos’. The extents to which groups and institutions are expressly and consciously oriented

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towards specific religious, secular or national myths will, of course, vary considerably both cross-culturally and over time (Pan 2009a: 79). However, the degree to which an official ideology claims to be expressly guided by myths, or to have ‘progressed’ beyond them, is not decisive. This is particularly clear in a context where the belief in a process of linear progress towards enlightenment from prejudice and myth, is itself largely mythical. Could it be that small-scale ‘traditional’ societies – characterised by religious belief and subsistence agriculture – are more able to exhibit an open and honest relationship to their guiding myths and mythic images, than citizens of modern industrial societies? This may be a possibility where secular, consumerist and technological orientations have come to dominate affairs. The latter’s materialism and belief in, and commitments to, a teleological model of ‘progress’ render them especially vulnerable to being caught up in a state of denial concerning the enduring power and functioning of their own myths, fable and legends: a more sophisticated naïvety.

Taking stock of general lessons: a Schmittian concept of the mythical? It may be possible to extract some more general lessons from the conclusions to the various case studies this chapter has just addressed, and to use these to formulate an outline of a generic ‘Schmittian theory of the mythic’. This project goes beyond the ambitions of Schmitt himself, and requires considerable supplementation. Schmitt insists that legal scholarship needs to take myth seriously as an academic topic. It does not follow that – for this reason alone – Schmittian analysis is committed to producing and promoting its own myths in an indiscriminate fashion. On the contrary, such analysis is capable of retaining a distinction between the objects and subjects of such knowledge. Schmitt’s analysis of political myth mainly operates at a macro-cultural level, focusing upon this political myth’s changing social appropriation, reinterpretation and influence. The central task he sets himself involves ‘ascertaining the influence of the political myth as an arbitrary historical force’ (Schmitt 1996b: 26). The choice of the expression ‘arbitrary’, which conveys distinctly negative associations for Schmitt, alerts us to the potential for political myths to generate dangerous, even counterproductive, outcomes. This should have prevented his more attentive critics from claiming that a Schmittian approach necessarily involves an uncritical ‘affirmation’ or ‘celebration’ of the mythic as part of a wider programme of political existentialism and irrationalism (Wolin 1992). Schmitt does not use the term ‘myth’ only as a story depicting the origins of a people or state, but as an interpretive means of grasping contemporary trends. More importantly, to express them in such a way as

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to greatly enhance ideologically suppressed antagonisms, and to provide an orientation for action. Schmitt’s approach to the political theory of myth is closely related to his interpretation of political theology as a methodology for uncovering the operative role of latent mythic and other beliefs within the ongoing interpretation of social action taking place within specific cultural traditions (Stirk 2005: 12–13). In the mid-1930s, Schmitt began to combine his ideas about the constitutive power of myth and his approach to the definition of the enemy, and the ideological deployments of such definitions. His work on international law addresses how powerful states purposefully construct myths in order to undermine the legitimacy and integrity of their enemies. Such a strategy was illustrated by his characterisation of the Anglo-Saxon powers, and especially the United States, as imperialist hegemons claiming an unrestricted right of arbitrary intervention in the name of the universal ideas of humanity (Stirk 2005: 16). Schmitt recognised the mythic beliefs and distinctions that historically European colonial powers had deployed to legitimate their power over colonies and protectorates, by reference, for instance, to the distinction between Christian and non-Christian peoples, and subsequently by the distinction between civilised, half-civilised and uncivilised states. He argued that forms of American imperialism had arisen that employed other distinctions and legal doctrines, particularly mythic categories contained in the international law device of ‘intervention treaties’ (Stirk 2005: 22–3). Schmitt illustrated this point with an example from the Spanish–American war of 1898, where the United States redefined the phrase ‘freedom’ as part of a strategy of both legitimating and securing hegemonic power: The world was initially astonished by the generosity with which a great people undertook a war for the freedom of another people and thereby solemnly guaranteed the sovereign freedom of the Cuban Republic’ (Schmitt 1932/1988: 170). The myth of American altruistic military intervention to secure Cuba’s ‘freedom’ was sharply contradicted by the small print of the resulting treaty. This meant the latter became obliged, whilst American troops were still on its soil, to agree to give the United States a right to intervene in Cuba in order to maintain its independence, to ensure the existence of a government capable of maintaining order and security, and so on. He also noted the provision of facilities (including oil and coke depots) to aid rapid American military intervention wider afield. He was particularly impressed by the American insistence that the treaty be incorporated into the Cuban constitution (Stirk 2005: 23). In this imperialist context, myths of America as a state whose foreign policies reflect that of a freedom loving people, dovetail into the

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ideological deployment of words and international law devices, whose rhetoric disguised self-interested and higher particularistic material realities. The mythical quality of these such assertions is evident in that they serve to concentrate and heighten attention to one set of preferred qualities with a questionable ground in empirical realities, whilst detracting attention from pivotal aspects of real-life events that could have more critical implications if they were attended to more closely (Stirk 2005: 40). Legal decision-making is never based on the objective knowledge of a given situation, nor is it determined by a purely rational and quasi-scientific application of established existing laws. Instead, such a decision requires a subjective interpretation of such laws that inevitably reflects the particular cultural beliefs, latent and implicit myths and customs of a given society. In this respect, legal decision-making is not based upon scientifically verifiable knowledge but in part at least, on myth defined as a long-standing type of intuitive knowledge immune from empirical or logical verification or revision. Questions of the status of knowledge claims about law are interpreted as ethical cultural questions capable of being answered not in the abstract, but rather by locating them within the concrete historical life situation of a given people’s way of life. Legal decision-making requires a culturally established medium in order for it to become intelligible as a decision in the first place, and the same point applies to knowledge of this activity (Strathausen 2010: 22–3).26 Every cultural tradition defines its immediate situation through the perspective opened up by its deployment of a distinctive interpretative schema, including a cluster of myths and mythic symbols, it follows that its own principles and values cannot exist independently of their practical realisation in specific contexts. Hence, insofar as international human rights articulate a distinctly Western liberal orientation and individualistic values, then their relevance and contextual appropriateness may be limited to cultural traditions that already possess a basic affinity towards such an orientation. The fact that such ideals are defined by international law as ‘universal’, to embody ‘the rights of man’, is not enough to render them universal (Rasch 2003). This is because it is the manner in which their realworld manifestation are made sense of by, and to, a plurality of cultural traditions that is truly decisive. Where the cultural traditions of other regimes embody the values, symbols and myths of more communitarian ‘Asian values’, for example,

26 See also David Pan and Russell A. Berman, ‘Introduction’ (Spring 2008) 142 Telos 3; David Pan, ‘Carl Schmitt on Culture and Violence in the Political Decision’ (Spring 2008) 142 Telos 49–72.

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or where Anglo-American comparative law deployed an crudely un­ differentiated notion of ‘socialist legal systems’ to characterise Eastern European regimes of the communist era, then such impositions may not be widely experienced there as a liberation. Instead, they can appear as selfevidently an imperialistic assimilation and territorial cultural annexation (Rasch 2003; Pan 2009a: 80, 85). This suggests that various nationalistic and regional myths and symbols relating to what it typically means to be ‘American’, ‘European’, ‘Western’, ‘Asian’, ‘African’ etc, can be distinctly particularistic and self-affirmative in an exclusionary sense. As such, they can be resistant to that spatially-uprooted form of abstract universalism characteristic of liberal cosmopolitan legality. If this is true, then the Schmittian critique of the myths and ideology of liberal cosmopolitanism cannot itself be a universalistic one, a global dismissal of human rights values as mythic, even in relation to specific and clear imperialistic tendencies. Instead, his critique has to be in terms of contextual inappropriateness. This, of course, leaves open the possibility that such liberal individualistic values may well have become entirely appropriate to the context of, for example. the cultural traditions and political cultures of the United States, Britain and the bulk of continental Europe, where it is realistic to expect them to be widely – but perhaps not universally – interpreted as self-evident and universal truths devoid of any noticeable mythic elements. Schmitt’s pluralism provides no compelling grounds for claiming that the decisions made by a sovereign ‘political will’ within any particular state lack moral legitimacy in an absolute sense, or relative to abstractly universalistic standards. This remains the case even where, for example, a state is sufficiently entranced by its own mythology and righteous missionary zeal to seek to reconstruct the entire world in its own image because its particular orientation is misrepresented as somehow universally applicable. According to Schmitt, it is not the contents of a particular orientation itself that is objectionable providing it is being applied to contexts where it is broadly indigenous. A broadly defined genocide denial law formulated in and for the context of Rwanda may be widely defined as contextually appropriate, perhaps regrettably necessary. Its contextual appropriateness is entirely unaffected by the fact that a similar restriction on ‘the right to freedom of expression’ would almost certainly be strongly opposed if it were introduced into, for example, the political culture of the United States. Instead, what merits critique from a Schmittian perspective are those imperialistic actions giving practical effect to a mythic orientation that the entire world constitutes an ‘open frontier’ for an abstract form of pseudo-universalism, such as human rights fundamentalism. There may well be difficult normative paradoxes here that a philosophical approach would need to address. Schmitt’s model of political myths implies that it is far from straightforward to differentiate myths from the other, non-mythical contents of a cultural

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tradition’s interpretative framework. In the context of historical change and fluidity affecting both the form and content of all social categories, he suggests that any effort to distil a singular and unchanging ‘essence’ of myths in general as X, the ‘essence’ of ideology as Y, and the relationship between them as Z and nothing but Z, is likely to prove fruitless – and indeed a possible source of gross distortion. From a mainstream perspective, this could appear as Schmitt’s scholarly failure to properly define and clarify his own terminology (which of course is not ‘his’ terminology but that of an entire cultural tradition). However, from another viewpoint informed by a hermeneutic sensibility, his refusal makes perfectly good sense as a prudent, even intellectually well-founded, move to resist distortion by reductive classification and simplistic labelling. A Schmittian approach to myths relevant to legal analysis can, however, at least raise some pertinent questions: At what point if any does a recent myth take on a legendary status, indeed become identifiable as a legend? Alternatively, are the words myth and legend two expressions for the same underlying phenomena? Or is it possible to identify beliefs that are clearly mythical even though they have yet to establish a legendary status, or to single out specific legends lacking any mythic elements? (Schmitt 2008a). Equally, whilst Schmitt and others regularly deploy the terms ‘ideology’ and ‘myth’ in rather loose ways, to what extent do distinctly ideological beliefs in, for example, the universal appropriateness of ‘free’-market economics as the ultimate goal of world history, also contain mythic aspects? If myths are specific cultural beliefs widely held to be self-evidently true but which have not been, or could not be, independently verified, then does this possible definition overlap with that of ideology? Of course, one might argue here that Schmitt’s usage implies that ‘ideologies’ are disguised rationalisations of particular interests and concerns, often strategically misrepresented as universal and/or ‘natural’ – akin to purposeful forms of propaganda; whereas myths lack this element of deliberate and self-interested rationalisation. Indeed, this book has explored Schmitt’s discussion of both specific political myths and imperialistic ‘ideologies of humanity’. However, it would be difficult to establish that a clear-cut distinction between Schmittian conceptions of myth and ideology is in play here. For example, it is not as if ideologies alone rationalise concrete institutional or other material interests. Indeed, religious myths, such as those concerning the birth, death and resurrection of Jesus, provide the underpinnings for a massive cluster of near-global economic enterprises associated with the highly commercialised celebration of ‘Christmas’ and ‘Easter’. Nor is it the case that those phenomena Schmitt expressly identifies as ‘true myths’, such as the Hamlet legend, entirely lack any ideological elements in relation to their original and later political and geopolitical contexts (Kahn 2003; Ben-Shai: 2009). On the contrary, for Schmitt, Hamlet articulates two specific taboos but then immediately silences

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them. These taboos stem immediately from – and can only be explained by reference to – ‘its concrete situation’ (Schmitt 2009: 5, 11–18). In addition, it is far from clear that, on Schmitt’s reading and as a matter of conceptual necessity, there are no mythic elements to, for example, imperialistic ideologies of humanity. On the contrary, Schmitt’s analysis of Sorel’s socialist myths specifically emphasises the latter’s resort to belief in a truly ‘humanised’ humanity blossoming in a future socialist society, in comparison to which working-class life under capitalism appears irremediably ‘dehumanised’, if not exactly zombified (Schmitt 2005b: ch 4). If one focuses on their actual operation within the thoughts, interpretations and action of those who both believe in myths and ideologies and orient themselves according to their messages, it may be more difficult to make a clear-cut or either/or distinction between them. In one sense, both myths and ideologies are extra-rational – not necessarily irrational – co-determinants of social action. Each supplies motivations for even dangerous activities, such as seeking revolutionary transformations in society (Schmitt 2005b: ch 4). Perhaps we can make a credible distinction between true and false cultural understandings and, which is less problematic, between beliefs generally accepted as true by insiders and those they generally and currently reject as false. If so, then such distinctions still only appear of limited use for differentiating ideology from myth. For example, those who believe that the earth is flat, that cigarettes are healthy, or that the world was created by God in six days, are clearly accepting myths in the sense that their claims are flatly contradicted by a mass of unambiguous and scientifically verified evidence in favour of alternative – indeed opposite – explanations. Here, a scientifically falsified belief that is still held to be true can be described as mythic. But that is still insufficient to distinguish mythic from ideological beliefs. No amount of even the most rationally compelling type of empirical evidence that, for example, cross references the standard of living of the working classes in capitalist regimes with those under pre-1989 socialist states characterised by central planning and command and control economies, is likely to convince a Marxist revolutionary that their ideological beliefs and associated commitments have now become falsified. Furthermore, those committed to racist ideologies typically immunise themselves from rational counter-arguments concerning the dubious status of ‘race’ as an underlying and founding naturalisticbiological category. Hence, we must continue to ask: Are myths independent of ideologies, or is one a subset of the other, and if so which? Or are they as much overlapping as distinct? Whilst a Schmittian approach can certainly raise such questions, it is far from clear that Schmitt’s works contain definitive answers. Similar questions arise in relation to the distinctions and affinities between categories of myth and rhetoric (Pan 2009a: 99).

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At this point, it may be useful to raise an issue whose implications may prove decisive for a scholarly analysis of mythic elements of modern law. Is it possible that as empirical phenomena related to concrete activities, we cannot neatly separate out legal theory and myth as if they constitute two mutually exclusive practices? If so, then jurists can no longer presume that ‘progress’ in legal theory ought ultimately to diminish the presence and effectiveness of myth as a determinant of both legal theory and law itself. In part, is this assumption driven by Plato’s all too captivating metaphor of philosophical ‘illumination’ driving out obscurity and darkness? If this poetic imagery has begun to lose its rhetorical grip upon contemporary scholarship, must scholars now consider whether legal theory and mythmaking are best viewed not as mutually exclusive but rather mutually complicit? Could it be that – as Schmitt suggests – even the most extreme proponents of the truly scientific status of Kelsen’s neo-Kantian ‘pure theory of law’, for example, both presuppose and covertly reiterate their own strategic myths – including a belief in the possibility of a myth-free legal science? Perhaps it is necessary to at least explore what may be involved in such a jurisprudential reconsideration, understood as a game in which what it means to be a jurist is itself at stake. Against many of Schmitt’s leftist critics, we can, however, make one general point with certainty: Schmitt’s model of political myth is rooted not in intrinsic naturalistic phenomena akin to gravity. Instead, he treats this phenomenon by means of a historically informed analysis of culture and changing patterns of cultural reinterpretation. His approach is thus relativistic and historicist, rather than naturalistic in the sense of oriented towards questions of, say, biology or race. Any distinction between norms or ‘natural’ mythic beliefs and ‘abnormal’ ones would, therefore, appear to be a matter of interpretation, not given fact. Schmitt’s analysis of myth thus both benefits and suffers from the well-known strengths, limitations and normative moral deficits of cultural relativism and historicism more generally, particularly for those who seek from Schmitt a coherent theoretical system of a traditional philosophical type. One starting point for a Schmittian model of myths is the phenomeno­ logical and hermeneutic theme – found throughout Schmitt’s work – of the necessary mediation of our experiences by distinctive cultural forms, images and symbols that are peculiar to the orientations of historically specific traditions (Schmitt 1996c; Schmitt 2009). In common with legal and cultural anthropology, his pluralistic approach emphasises that every distinct cultural tradition is likely to possess its own specific ‘nomos’, an orientation and principle of spatial order and ordering. Abstractly universalistic approaches to international and public law ignore this vital element at the cost of both their credibility and explanatory power (Schmitt 2003: 78). Our experience is forever mediated by interpretative practices. These are themselves mediated by a collective and typically evolving

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framework of ideas, beliefs, categories of meaning, distinctions, values, linguistic and visual symbols, which comprise the constituent elements of the overall ‘nomos’ that is particular to the context of a specific and particularistic ‘way of life’. By emphasising this distinctly cultural dimension, which includes rivalry between different, and sometimes incompatible, sub-cultures including those founded upon social class and other forms of collective social conflict, Schmittian analysis re-affirms its pluralistic orientation. This emphasis upon the need to recognise and respect difference is directed polemically against liberal cosmopolitan attempts to homogenise all cultures and peoples through the deployment of abstractly universalistic categories of a presumed higher ‘monoculture’, such as ‘humanity’, the ‘rights of man’ or ‘international human rights’ (Rasch 2003; Pan 2009a: 78–9). Indeed, Schmitt’s emphasis, in Nomos for example, on the grounding of political and legal orders on historically specific and spatially-located acts of land appropriation operating as founding acts, actively promotes a pluralistic framework of cultural interpretation. This is hostile to all abstract appeals of myths of ‘free humanity’ in a way that distinguishes his approach from that of Theodor Adorno (Pan 2009a: 78–80). As Pan’s commentary notes: If ideals such as law, reason, and humanity are posited as general and universal, they no longer refer to any specific set of principles and traditions but in fact become placeholders for the rule of a hidden sovereign. … and thereby demonises all other cultures that would defend their own particularity. (Pan 2009a: 83) For Schmitt, such ideals are not names, and thereby lack the element of publicity, visibility and ceremony that counteracts the tendency for power to operate secretly and in an anonymous manner (Schmitt 2003: 83). Hence, and in polemical opposition to the assimilationist tendencies of liberal cosmopolitanism, a Schmittian analysis of political myths operates with an initial assumption in favour of interpretative pluralism and diversity of divergent and possibly incompatible interpretative frameworks. It must initially presume that these myths operate both within and between different national contexts, with their empirical contents changing from one era to another. Arguably, this is a more realistic starting assumption for the study of legally relevant mythical beliefs than the opposite presumption of unchanging structural sameness and uniformity. Schmitt thus argues that the basis for any nation’s cultural tradition and ethos lies not in a vision of ‘universal humanity’, but rather a particular cluster of values, customary practices, prejudices and commitments. These, in turn, arise out of, and then sustain, a specific but ongoing historical situation (Pan 2009a: 78).

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For example, and in various ways, even the political culture of technologically advanced industrial capitalist societies, such as the United States, pay continuing homage to the ultimately genocidal practices of land appropriation from Native American tribes. Hence, the ‘founding of the nation’ remains linked to the politically strategic self-affirming myths of ‘discovery’, ‘the new world’, ‘Pilgrim Fathers’ and primary ‘settlement’ of a ‘frontier’ as an advance in global ‘civilisation’. The legitimacy of these notions ultimately rests upon mythic beliefs, including those originally sanctioned theologically as a missionary task by Papal authority (Schmitt 2003: 79, 209, 237). The policy of seizing large blocks of land, followed by the creating of territorial borders distinguishing specific ‘homelands’ from foreign states, and then establishing diverse types of relations with other nation states, certainly functions as a founding practice for a nation. Schmitt’s key point is that religious and other mythic beliefs can play a decisive role in both the motivation and legitimation of such activities even – or perhaps especially – where the founding of a nation involves the genocidal displacement and destruction of indigenous peoples as in Australia, Palestine and both North and South America (Schmitt 2003: 70). Political myths of this legitimating kind help generate and sustain an imaginary basis for citizens’ experience of belonging to, and being integrated into, a ‘common nation’, to a particular collectively shared way of life distinct from – and always in potential opposition to – every other nation state or alliance of states. Such myths are related to, and one founding aspect of, ‘the logic of the political’, that is the differentiation of collective friends from enemies – and thus the identification of comparative neutrals (Schmitt 1996a). In this respect, political unities, such nation states, are thus ordered by specific founding myths. In particular, there is the myth of ‘the nation as our nation’, supposedly a worthy cause to honour and defend with our lives if need be. Here, symbolic acts of flagburning by citizens may appear as a form of treason, a violation of a general obligation towards constitutional patriotism, even a secular form of blasphemy. It is only to be expected that nation states characterised by divergent cultural traditions, including contrasts between Islamic, Christian, Hindu and secular humanist traditions, will generally define and deploy key different mythic symbols and images in distinctive and divergent ways. The political leaders of these states will typically constitute – through acts of selective reinterpretation – a concrete sense of who really are their nation’s friends, enemies and neutrals. This takes place in a manner that exemplifies, and may be peculiar to, their distinctive orientation and emotionally charged affiliations, and which can only be properly appreciated ‘from the inside’ as it were. As a result, there are difficult constitutional issues raised by the burning of the American flag and blasphemous depictions of revered religious figures, including Jesus Christ and Mohammed.

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From a wholly extrinsic perspective of a cultural outsider, such issues can prove difficult to address and appreciate. These need to be understood not solely from the universalistic liberal idea of ‘freedom of expression’ as a generic and international ‘human right’. Instead, and at least initially, a proper appreciation of what is at stake here is likely to require us to take into account the ‘internal’ perspective, one capable of grasping the subjectively real offence such acts of symbolic desecration cause to devout believers in such legendary figures. It follows that even apparently purely technical doctrinal and strictly rational questions concerning the limits of a right to ‘freedom of expression’ under X constitutional provision, presuppose an appreciation of the emotive power of symbolic myths and legends as ‘emblems of belonging’. As discussed, Schmitt’s study of Hamlet suggests that politically charged myths constitute a key part of whatever metaphysical framework currently prevails, and thereby – from a public law perspective – help expose and articulate the particular character of a historically specific epoch. In turn, this framework’s discursive and conceptual resources provide the conditions for the political acceptance, or rejection, of specific constitutional arrangements (or political compromise ‘settlements’), such as parliamentary democracy, liberal constitutionalism and the welfare state. Inevitably, certain myths become institutionally entrenched within authoritative practices and associated texts that enter into the legal sphere. These include not only the conflation of liberalism and democracy in the oxymoronic idea of ‘liberal democracy’ but also the positivist idea of law as a closed and selfsufficient system of technical rules that has largely dominated mainstream legal education within 20th-century Britain. Through their constant re-enactment as ‘basic truths’, such myths thereby become ‘legends’ (Schmitt 2008a: 38–9). This transformation from myth to legend is possible even for scholarly works of legal theory, which owe their legendary status to the manner in which ‘they haul out and solemnly declare a commonly accepted conclusion as the result of their erudite research’. Once such works obtain legendary status, they ‘are only used and … not read any more’ (Schmitt 2008a: 38). In other words, they mutate into entities that are commonly held to be self-evident or ‘obvious’, and thus taken for granted as a matter of course and part of ‘common sense’ (Salter 1992).27 Where a strategic myth has succeeded in becoming a legend, and irrespective of the content of its ‘message’ it comes into its own as an

27 Schmitt’s Political Theology II deploys the expression ‘legend’ in this sense in both its subtitle and each of the three chapter headings in relation to the myth that, for Christians at least, theology remains autonomous from political analysis, thus negating the idea of the political theology from the ground up (Schmitt 2008b).

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essentially conservative political phenomena,28 it is no longer critically read and explored, but rather merely cited affirmatively – as though it constituted a definitive truth and basis for obviously correct actions. In turn, such acts of citation become symbolic public expressions that their author holds resolutely to a specific position, a gesture of ‘belonging to’ a particular commitment, such as to particular ‘schools’ of natural law, legal positivism, feminist jurisprudence or Marxist sociology of law. Public statements at conferences and the publishing of articles can thereby become analogous – at least at the symbolic level of emblematic modes of belonging – to proudly waving a national flag during an international soccer match (cf Schmitt 2008a: 31). The affirmation of the central claims of one school of jurisprudence in a context of disputations where all sides ought to recognise that there can be no possibility of independent resolution from a higher, more objective ‘third party’ position, still makes good sense as a gesture of tribal belonging, of standing up and being counted. The key general point is that Schmitt’s orientation is essentially collectivist, even communitarian, such that his analysis of myth approximates the broad orientation of a cultural historian. That is, a researcher who recognises that even decisions as to war and peace, the identification of existential threats to an entire nation, presupposes a prior attachment to cultural resources, categories and distinctions. These both include, and are often shaped by, operative myths and overarching metaphysical principles widely assumed to be both self-evidently true and contextually appropriate. There is no scholarly basis for making normative appeals to notions of ‘individuality’ or ‘humanity’ supposedly existing in a mythical pre-political state. That is, in a condition prior to their cultural reinterpretation by a concrete and particular cultural tradition operating with its own distinctive interpretative framework of categories, symbols and myths. Every social order continuously establishes and reinvents itself, including its sense of belonging to a particular nation for example, by reworking the political and symbolic aesthetic resources of its own framework. Concrete actions involve the translation of relevant ‘slices’ of this overall framework into concrete realities, including the realisation of mythic symbols, legends and political myths (Pan 2009a: 86). It would require little effort to analyse a range of familiar courtroom interactions in these symbolic terms, not least the widely accepted fiction that judges merely declare and faithfully apply a pre-given system of legal rules, such that it is the objectively given meaning

28 Of course, this notion of ‘conservatism’ has nothing necessarily to do with the idea or reality of Conservative Party politics, which on occasions can appear more ‘radical’ in relation to the status quo than those of other mainstream political parties anxious, for example, to defend the post-war consensus on the desirability of the welfare state.

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of the latter that actually determines the outcome of legal disputes in particular cases. From a Schmittian perspective, even urgent life-and-death questions relating to the distinction between a state’s friends, enemies and neutrals, with enemies understood as those who pose an existential threat to the nation’s entire way of life, operate on the basis of indigenous cultural understandings mediated by mythic beliefs. These may relate to the question of what the expression ‘national security’ – and hence myths of a singular ‘nation’ – now signifies at this time and place. In this respect, even the decision to take military action can be understood as articulating a distinctive form of cultural belonging potentially shaped by mythic beliefs (Pan 2008). As Pan clearly recognises: Schmitt … understands law and politics as inextricably tied to a cultural context of myth and tradition that helps define such a way of life as a collective vision that predetermines the individual subject as always more than its bare life. … Violence can only be political once it is linked to a symbolic field of oppositions that can define enemies. This definition is not simply a reaction to an existential threat to physical survival but a determination of what counts as cultural survival. This ‘mythic’ basis of law is not merely an instrument for maintaining power that can be turned on and off at will ... but an independent realm of cultural dynamics that follows its own logic and is not subject to simple instrumentalization. It is to this realm that Schmitt turns in order to understand the forces that underlie political conflicts and upheavals. (Pan 2009b: 42) In short, for Schmitt, myth is linked to different ways of ‘belonging’ to shared cultural traditions through the medium of their interpretative and symbolic frameworks riddled with beliefs of various kinds. Such modes of belonging include extreme forms of alienation, opposition and rebellion at one extreme, and intense forms of identification, integration and total assimilation at the other. To avoid or minimise a sense of alienation and social exclusion, citizens may need to feel some measure of immediate affinity with ‘their state’ functioning both as an executive committee of ‘their nation’ and as an enduring political association. However, this subjective need to feel at home with and within one’s ‘own people’, community and national institutions is hampered by the state’s material invisibility and impersonal anonymity. In this context, specific political myths and symbols of ‘the nation’ – functioning as visual and spatial forms of cultural representations – can appear as a near magical solution (Schmitt 2003: 70; Pan 2009a: 78). For instance, the physical appearance of offices containing, for example, the Home Office or MI5 do not adequately symbolise – and thereby render

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immediately meaningful – ‘our state’ to the imagination of British citizens. More generally, and taken as an organic whole, the modern state is a series of invisible and technical mechanisms for tax-collecting, industry regulating, law enforcing etc, which is made up of somewhat mundane – and often visually uninspiring – component parts. According to Schmitt, one of the things that is needed to combat alienation and assist with the project of social cohesion, is the deployment of a credible and effective political myth, which is able to optimally engage with the sensibility of those most closely affected. That is, a coherent representation, or ‘visualisation’, of a living individual or collective embodiment of sovereign power. He claims that: ‘To represent means to make an invisible being visible and present through a publicly present one’ (Schmitt 2008a: 243). In this respect, a constellation of cultural representations, including of course myths, makes a specific nation’s distinctive political form – pre-eminently the state – publicly and emphatically visible to its citizens. Myths thereby contribute to the heightening of the presence of a distinctive idea of the nation state to the nation itself, its public crystallisation and realisation as something demonstrably real and embedded. Of course, only those ideas to which ‘the people’ are generally already receptive and which harmonise with established constitutional principles including democratic expectations, and thereby exhibit an ‘authoritative’ status, can function as the content of relevant political myths and legends. Insofar as political myths relating to democracy include symbols that rise to meet this challenge, then a Schmittian analysis recognises the operation of a distinctly aesthetic, even theatrical, dimension to the process of political will formation. Recall, for example, the aesthetic, theatrical and performative aspects of those mass rallies and demonstrations of ‘people power’ that, over the past three decades, have toppled unpopular dictatorships of various kinds, the passionate speeches, colourful banners, strident slogans and overall sense of being part of something with organic solidarity. The image of the Berlin wall being sundered as East German border guards, who formerly shot escapees, simply watched on in a bemused state, can itself function as a mythic representation and symbolic visualisation for the implosion of communism in general. In one sense this is akin to how imagery depicting the epic storming of the Russian Winter Palace once played out within earlier communist political myths and iconography. In short, for Schmitt, the audience for political myths legitimating the authority of democracy must be able to exhibit an aesthetic – as well as cognitive and affective – receptivity towards their form and content, otherwise they will lack perceived validity (Pan 2009a: 91–2). Perhaps a workable Schmittian distinction is between those figures created for a specific purpose but which, perhaps unexpectedly, ‘strike a

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chord’ and ‘resonate’ with others over many generations, and thereby acquire without pre-planning, the status of myths-turned-legendary figures, and other figures. The second group could be characterised as those that were created and then controlled precisely to achieve this status, such that their effect is explicable by reference to a programme of ideological manipulation. On another reading, the idea of ‘authentic’ myth could be taken as little more than an expression indicating that not everything popularly termed a myth deserves to be recognised as such by academic analysis; and that scholars, therefore, need to be careful not to adopt a loose, vague and overly broad definition that fails to distinguish myths from similar, but nevertheless different, phenomena. For Schmitt, the analysis of mythic figures and associated beliefs, even literary ones such as Hamlet, requires receptiveness to the influence and power exerted by specific political events at the time of both their creation and subsequent re-creation. As Schmitt’s study of Hamlet suggests, specific aspects of such events may need to be clothed in darkness and left obscure, if only out of a concern not to alienate segments of the intended audience who might be seriously offended if these elements were ever clarified unambiguously. For instance, in the case of Hamlet, there is the taboo this play casts over the potential complicity of Hamlet’s mother in the murder of his father, and her rapid remarriage to the probable murderer. Where later generations no longer share this particular sensitivity but may have acquired new ones, such changes need to be addressed during the analysis of this myth’s later interpretative trajectory. In addition, where such historical factors engender a taboo in relation to both the writing and reception of a mythic figure, then we cannot ignore its impact upon both the tragic and dramatic qualities of the piece of work in question. Given the rhetorical power of political myths, legends and symbols, it would be irrational for these to be ignored by any realistic scholarly approach to either jurisprudence or, more broadly, the politics of domestic and international law. Instead, I suggest such approaches should take seriously the various distinctions between myths, counter-myths, political mythic symbols, and constitutional doctrines premised on mythic beliefs set out in this book, together with its Schmittian immanently critical analysis of specific constitutional and insurrectionary myths. If fairly appropriated, Schmitt’s analysis could open up avenues rich in future research potential within both domestic and international law. In particular, the role of mythic beliefs in both the curious politics of depoliticisation, and the latter’s connection to specific and evolving ideologies, merit further investigation. The same holds true for the possible relations between legal and secularised theological concepts, which constitutional scholars may be able to extend far wider than sovereignty. I would also argue that a similar extension could be fruitfully pursued concerning the rhetorical hold specific political and political theological

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myths continue to exert upon Schmittian scholarship, and the reflexive issues and opportunities for self-critical analysis that this opens up. Certainly, Schmitt insists that: ‘For no train of thought, however lucid, is able to compete against the power of true, mythical images’ (Schmitt 2009: 123). He suggests that constitutional and other political myths are aesthetic effects of real historical forces whose close analysis can uncover specific truths that might otherwise go unnoticed. Such myths are, in one sense both self-generative and self-authenticating. They are not so much opposed to legal knowledge, but constitute one aspects of its inner core (Strathausen 2010: 22). One lesson that can be drawn from this chapter is the importance of distinguishing between the following: 1 2

3 4 5 6

7

8

Schmitt’s analysis of those expressly identified myths that are of direct relevance to legal scholarship. His criticisms of specific public law doctrines associated with liberal constitutionalism, such as beliefs in the ideas and rationale of parliamentarism, leading to the conclusion that these beliefs need to be reinterpreted as closer to mythic legends, rather than as realistic scholarly descriptions of law in action. Schmitt’s general characterisations of political myths could, perhaps, be applied to beliefs in those legal and constitutional doctrines that he did not expressly address. Political myths, defined as deliberately created images and symbols, which are designed to achieve a specific rhetoric effect in the modern world, as opposed to ancient or classic mythical figures. Strategically well-chosen political myths that largely realise their intended rhetorical effect, as opposed to others that yield counter­ productive results. Political and classic myths that, over time and through their repetition, acquire an entrenched legendary status, as opposed to the remainder whose life-span fails to transcend the immediate context of their emergence. Legally relevant beliefs that are ‘pure myths’, that is, sociologically uninteresting forms of falsified ideas meriting only rejection by scholarly analysis, are distinguishable from those that can be particularly revealing about how aspects of constitutional governance continue to be legitimated rhetorically. Political myths that are broadly supportive of democratic values and practices by insisting that all political power derives from ‘the people’, or ‘demos’, as opposed to those which encourage and endorse totalitarian modes of governance. In the latter, the source of power stems from, say, divine right or its secular equivalents, or eligibility for political leadership on a dynastic.

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These themes, differences and distinctions could provide building blocks for later scholarly research within law broadly defined. Future research could start with the reflections and suggestions on literary myths contained in Schmitt’s Hamlet study, and then compare these systematically with his sympathetic discussions of Sorel’s analysis of political myths in Political Theology. The results of such comparison might help further refine a Schmittian model of myth capable of casting fresh light upon a range of public law, jurisprudence and international law doctrines. These include the status of Marxist legal theory in terms of its reliance upon a mythically redemptive philosophy of history involving the presumed ‘withering away’ of law in a socialist society. A second field comprises those questions concerning the idea of a European democratic constitution, specific constitutional issues raised by the definition of ‘the people’ and ‘democracy’ in recently independent but former Soviet-bloc states that do not possess an entrenched liberal tradition, and the extension of universalist categories and jurisdictional claims by, for instance, the International Criminal Court claiming to act on behalf of ‘humanity’.

Conclusion

Towards a critical appraisal of a Schmittian approach to law To date, I have attempted to develop a sympathetic interpretation of my version of a Schmittian approach to modern law: one that possesses relevance to a number of contemporary debates in jurisprudence and both constitutional and international law. And yet even if this book succeeds in this objective, it must be frankly conceded that for many of the constructive readings set out above, it would have been equally possible, perhaps easier, to have developed hostile and destructive interpretations more in keeping with the literature that dominated discussions until the mid-1990s at least. Only where it seemed especially important have I engaged with criticisms in the secondary literature. This is partly explained by my conviction that, within the contemporary context, the selective clarification of what a Schmittian approach to modern law entails is of more pressing concern than its point-by-point critical evaluation in the light of every actual or conceivable objection. Perhaps no credible evaluation of a legal theory (or perhaps anything?) is possible until the critic has clarified, in an optimally undistorted manner, just what it is that he or she is assessing. All too often critics of theoretical positions make life straightforward for themselves by developing a questionable interpretation of their target, the proverbial straw-man, set up only for the purpose of easily knocking it down again. The previous chapters, however, risk accusations of being too distant from the polemical spirit of radicalism that, to a greater or lesser extent, informs many of Schmitt’s own texts – albeit in ways that, when taken to an extreme, sometimes result in otherwise avoidable difficulties. Indeed, evaluation and perhaps only a partial justification for the account of a Schmittian approach to law as outlined above cannot be permanently deferred.29 It is difficult to intensely research a book on juristic writings 29  This task may well form a later follow-up project merely prefigured in the following brief conclusion.

Conclusion 265

without becoming increasingly aware of their internal difficulties, inconsistencies, gaps, ambiguities and distorting ‘prejudices’. In response, this ‘critical appraisal’ pulls together my sense of many of the limitations of the ‘Schmittian approach’. This chapter seeks to identify and illustrate the various discrepancies, contradictions and confusions that, I believe, can be found within Schmitt’s works.30 These need to be emphasised to balance out the otherwise onesidedly affirmative nature of this book’s earlier chapters. Without such cautionary nuance and qualifications, these chapters could be taken as an uncritical and cheerleading advocacy of the totality of Schmitt’s works: ironically of a type that his own writings properly resisted, even when analysing major precursors such as Hobbes. Furthermore, the materials quoted and analysed in this book develop those interpretations that, in my judgement, continue to possess relevance to contemporary debates. But, of course, this represents only a small fraction of what Schmitt actually wrote. Perhaps, it should not be taken as somehow representative of the whole. In other words, in writing this book I have silently filtered out a mass of materials of lesser value and relevance. Perhaps I can be accused of giving a sympathetic interpretation to only the least problematic aspects of Schmitt’s work. However, if so, then perhaps this stands as an important corrective to the rival strand of discussion contained most strongly in the writings of Wolin, Scheuerman and others. In some measure, these appear to be engaged in the very opposite, and surely less helpful, exercise. A major question concerns the extent to which Schmitt’s claims in relation to both liberalism and American imperialism depend wholly upon the wider perspective of a disappointed German conservative nationalist reacting negatively to his state’s defeat during two world wars. If so, then does this suggest his writings lack any wider relevance? And yet even if this is the case, it does not follow that the arguments and evidence he mobilises to make his case lack any wider pertinence to other contexts, including for those who deploy contrary perspectives. And yet it is doubtful whether, in this context, it is possible to make a clear-cut distinction between the effective rhetoric Schmitt deploys when making this critique, and the specific arguments and evidence that he cites in support of it. At the very least, and perhaps this is of wider relevance, for many of the arguments and pieces of evidence Schmitt cites it is possible to identify counter-arguments

30 Kam Shapiro for examples recognises: ‘Rather than a consistent position or a linear progression, Schmitt’s political and theoretical arguments display recurrent, at times sharp vacillations. These inconsistencies are treated here as symptoms of conceptual and political aporias more than psychological or biographical idiosyncrasies’. See Kam Shapiro, Carl Schmitt and the Intensification of Politics (Lanham: Rowman & Littlefield, 2008), xvii.

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and evidence that could be deployed to make the opposite – or at least quite different – case. If Schmitt’s works had displayed a more discursive theoretic style of debating and weighing up the import of arguments and counter-arguments, evidence and counter-evidence, then it would be possible to put more faith in his conclusions. The same point holds true for his refusal to really clarify the underlying methodological basis for his research. This is despite the fact that much of his work on the ‘essence’ of ‘the political’ and sovereignty for example, clearly relies heavily upon the phenomenological and hermeneutic approaches to the conduct of research stemming from the pioneering work of Edmund Husserl.31 Instead, many of the positions he advances on liberalism and imperialism are outright polemics relying heavily on the rhetoric of bold formulations, clever rhetorical devices and evocative examples that – in keeping with phenomenological imperatives – have an intuitive and experiential resonance.32 These formulations share the major limitations of the phenomenological approach to legal research, which I have discussed and illustrated elsewhere.33 In short, Schmitt generally avoids attempts to justify his own methodological and substantive theoretical premises, preferring to focus on the topic in question. Yet, it can hardly be argued that evading theoretical responsibility for the underlying and implicit premises of his own express claims and positions makes these any more convincing. On the contrary, this tendency generates an understandable frustration, and even suspicion that more sustained reflection could reveal real problems that endure precisely because they are not being addressed. Carsten Strathausen quotes a comment by Professor Hepp during a German symposium on Schmitt: ‘Who among us would claim to be unfamiliar with the odd feeling when reading this author that you are being fooled by a pseudo-lucid argument?’ (Strathausen 2010: 9 n 4). There are other possible difficulties. Schmitt’s analysis of the various constitutional myths discussed above clearly presuppose a specific understanding of ‘the mythical’ in general, akin to how his interesting

31 I have tried to explain this approach in the following earlier studies: ‘On the Beginnings of Foundational Legal Research into Legal Discourse’ (April 1987) 9(1) Liverpool Law Review 23–43; ‘Towards a Programme of Foundational Legal Research’ (May 1988) 19(2) Journal of the British Society for Phenomenology (JBSP: Philosophy Journal) 250–8; ‘Towards a Phenomenology of Legal Thinking’ (1992) 23(2) Journal of the British Society for Phenomenology (JBSP) 167–82; ‘Common Sense and the Resistance to Legal Theory’ (July 1992) 5(2) Ratio Juris 212–29; ‘On Heidegger’s Account of Interpretation’ (Spring 1994) 17 New Comparisons 150–69; (Co-authored with Dr Chris Harris), ‘On the Idea of a Legal World’ (Winter 1994) 1 Int ‘I Jnl of the Legal Profession 283–310. 32 Cf Helmut Quaritsch (ed), Complexio Oppositorum-Über Carl Schmitt (Berlin: Duncker & Humblot, 1988), 258. 33 M. Salter, ‘A Dialectic Despite Itself: Overcoming the Phenomenology of Legal Culture’ (1995) 4 Social and Legal Studies 453–76.

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discussions on the politics of law rely upon his more expressly developed conception of ‘the political’. However, with the exception of some ad hoc statements in his Hamlet study, Schmitt fails to expressly develop this understanding, or even explain his reasons for not doing so. He cannot claim credit for the express elucidation of the concept of the political as providing a conceptual theoretic foundation for his more concrete analyses of the politics of law, whilst – at the same time – also suggesting that this is unnecessary with respect to his concept of ‘the mythical’: a conception that clearly structures his studies of Hobbes, Hamlet and parliamentarism. I would now suggest that in places Schmitt’s writings appear to have become either carried away with the implications of specific myths, or invoke them in a way that is ideological in the most negative sense of this term. Perhaps influenced by the originally Jewish mythology of a primordial clash between the sea monster (Leviathan) and a land monster (Behemoth), symbols which Schmitt’s study of Hobbes address expressly, the policies and ambitions of Anglo-Americans are recast almost as if they belong to a different and incompatible species from the peoples of continental Europe. This leads to a grossly reductive reading of the entirety of world history in terms of an elemental – even metaphysical – clash between land-based and maritime powers (Schmitt 1997: 3). On the one hand, Schmitt’s analysis of the role of myths appears broadly hermeneutical and social constructionist, giving emphasis to the cultural relativity of myths. On the other, there are passages where he seems committed to the more dubious proposition that certain mythic structures are somehow elemental. In particular, he views myths associated with sea and land, and maritime and terrestrial monsters, as exhibiting a transcontextual significance, almost as if they are hardwired into human nature. Elements of this tension can perhaps be discovered in contrasting the following passages from Land and Sea: Man is a terrestrial, an earthling. He lives, moves and walks on the firmly-grounded Earth. It is his stand­point and his base. He derives his points of view from it, which is also to say that his impressions are determined by it and his world outlook is conditioned by it. Earth-born, developing on it, man derives not only his horizon from it, but also his poise, his movements, his figure and his height. That is why he calls Earth the star on which he lives, although, as it is well known, the surface of the planet is three fourths water and only one fourth firm land; even the largest continents are but huge floating islands. And since we found out that our earth is spherically shaped, we have been speaking quite naturally of the ‘terrestrial sphere’ or of the ‘terrestrial globe.’ To imagine a ‘maritime globe’ would seem strange, indeed. All our existence down here, our happiness, our misfortunes, our joys and our pains are the ‘earthly’ life for us, that is to say, a paradise or a valley

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of tears, depending which aspect is taken into consideration. Thus, it is easy to understand why earth is represented as the primal mother of mankind in a great many myths and legends that give expression to the oldest memories and the innermost trials and tribulations in the lives of nations. She is considered the oldest of all the deities. Sacred writings tell us that man, emerging from earth, would return to earth. The earth is his maternal support, because he himself is the son of the earth. He sees in his siblings his ground-brothers, the inhabitants of the same earth. Among the four elements (earth, water, air and fire), it is the first which is vowed to man and which leaves its mark on him to the fullest. The idea that he could be marked as strongly by any of the other elements appears quite chimerical at first sight: man is neither fish nor bird, and even less a being of fire – were one to exist. Are we to surmise from all this that human existence and the human being are essentially and exclusively earthly and earth-oriented, while the other elements are but accessories of a secondary rank? ... In people’s deepest and often unconscious memories, water and the sea are the mysterious and primordial source of all life. In their legends and in their myths, most peoples conjure up deities and human beings emerging not only from the ground but also from the sea. All speak of the sons and daughters of oceans and seas: Aphrodite, for instance, the goddess of feminine beauty, had been born out of the foam of the billows. (Schmitt 2011: 1) On this interpretation, specific myths concerning the cultural significance of land and sea are almost perennial because they are both rooted in, and give expression to, a core aspect of what it means to be human located, perhaps, in a collective subconscious. Yet a later passage appears to revert back to the idea that even these myths and mythic symbols are historically contingent and culturally specific, subject to historical transformation in ways that are incompatible with the claim that they somehow possess an ‘elemental’ status: Then a new maritime power emerged in Christian Europe, as a result of the Crusades: Venice. With her, a new mythical name entered the grand stage of world history. For almost half a millennium, the Venetian Republic symbolized the domination of the seas, the wealth derived from maritime trade and that matchless feat which was the conciliation of the requisites of high politics with ‘the oddest creation in the economic history of all times.’ All that the Anglophiles admired in England, between the eighteenth and the twentieth centuries, had already made the fame of Venice: the great wealth, the diplomatic superiority by which the maritime power was exploiting the rivalries among the Continental powers and made others fight its wars, the

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aristocratic system of government which seems to have resolved the problems of internal, political order, the forbearance of philosophical and religious notions, the asylum extended to the political emigration and the ideas of independence. To all these may be added the magic attraction exerted by sumptuous festivals and by artistic beauty. One of those festivities had caught people’s fancy in particular and helped to make Venice world-famous: the legendary ‘marriage to the sea,’ the socalled spozalizio del mare. … The Venetians themselves, their neighbors, and even people from afar saw in that gesture a manifest sign that gave its mythical consecration to a power and a wealth that had been surging from the seas. We shall see what was really behind this beautiful symbol as soon as we probe its deeper meaning. (Schmitt 1997) In addition, Schmitt’s decisionism, which inverts the major dichotomies on which Kelsenian positivism and liberal constitutionalism more generally rest, leads to a critique of this position’s uncritical acceptance of any content for legal norms as falling outside the scope of theoretical debate. However, the undeniable power of this argument against legal formalism becomes counter productive in that, in effect, Kelsen’s position involves an extranormative decisionism as to the sources of legal norms, they are valid because an authoritative interpreter, such as Parliament, has decided that hereafter they shall be held and widely recognised as valid. Schmitt’s Legality and Legitimacy (1932/2004b) makes a powerful critique of the implications of this position, which in effect claims that ‘might makes right’; and that normativism relies upon essentially extra-normative foundations, including public acts of faith in the political process. However, Schmitt’s strong and generally convincing polemic clearly rebounds back upon the largely decisionist theory expressed most strongly in his Political Theology (Schmitt 2005a, cf. Schmitt 2004a: 21, 48). In a related point, the first chapter of this book has largely rejected the extravagant claim that Schmitt’s Weimar writings promote an essentially fascistic ideology. However, there still remains a serious point here. Schmitt’s works, particularly The Concept of the Political and Political Theology, attempt but – in my view – fail to provide an entirely analytical account of law and its relationship to domestic power politics manifested through the decisions of those exercising various forms of sovereignty. They purport to provide a descriptively accurate account of these topics free from the superimposition of moral, political or religious value-judgements. For example, Schmitt emphasises that, on his reading, the friend/enemy distinction, the hallmark of ‘the political’, need not relate to any specific moral or economic or aesthetic distinctions. In addition, the emphasis he places upon a core of ‘homogeneity’ as lying at the core of the political unity of a nation, which in extremis may need to be secured through the

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removal or elimination of incompatible form of heterogeneity, refuses to prescribe any specific moral, ethical, religious, political or racial content to homogeneity, and hence heterogeneity. This leaves a normative vacuum. In his defence, and at one level, one could argue that, as a matter of historical and sociological fact, there is a well-documented tendency for human societies, institutions and sub-cultures to solidify in-group (or ‘insider’) status through the identification and displacement of out-group (or ‘outsider’) qualities. Perhaps, no religion can entirely dispense with the actual and potential application of categories such as ‘heretic’, ‘blasphemy’ and ‘infidel’, any more than a modern state can dispense with legal conceptions such as ‘treason’, ‘sedition’ and ‘alien’ (in the sense of a resident who lacks ‘nationality’). It is simply false to claim that Schmitt’s analysis provides positive and express theoretical support for, and advocacy of, negative treatment of any specific religious, ‘racial’ or political minority groups. On the other hand, these formulations in the Concept of the Political fail to sufficiently guard themselves against such a ‘misinterpretation’. They can be read as suggesting that the persecution of some – in fact any – minority group that is demonised as the ‘enemy within’, constitutes a basic fact of life within any society that seeks to maintain or enhance its political unity. It is, therefore, all too easy to misinterpret these formulations as if they signified affirmations of an ‘iron law’ of nature prescribing that every society needs to scapegoat some type of minority as the enemy within. It is unrealistic for any minority group to consider itself entitled to constitutional human rights guarantees to protect itself from this threat. Hence, attempts to oppose or resist this supposedly invariant law of the political through, for instance, the creation of constitutional safeguards, are therefore useless. The fact that later editions of the Concept of the Political contained revised formulations of the nature of the political is relevant here. These respond, without acknowledgement, to the critique contained in Hans Morgenthau’s doctorate by removing expressions suggesting that ‘the political’ was a separate realm, as distinct from a degree of intensity of association and disassociation within each and every sphere of social relations. Since later editions clearly reflect the results of a self-critical learning process in this respect, then it is difficult to justify the omission of a corresponding revision to these potentially dangerous formulations concerning homogeneity and heterogeneity, particularly in post-war and post-Holocaust editions of this book. It would have been better had at least later second and third editions of The Concept of the Political either prefaced, or immediately balanced and thereby qualified, its potentially dangerous analyses and statements concerning homogeneity, with countervailing claims found in other parts of his work, including within his studies of Hobbes and constitutional issues. For example, it would have been more responsible to have juxtaposed his claims that even tyrannical measures directed against minorities that have

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been ‘lawfully’ enacted lack constitutional legitimacy because they violate established and core constitutional principles; and that only a state that is practically committed to securing the physical security of all its citizens can legitimately demand they forego their ‘right to resistance’ (Schmitt 2004b 29, 31, 39–40, 45–6, 52–60, 77–8, 87; Schmitt 1996b: 46–7, 53, 59, 71–2) Schmitt failed to do this. This failure is perverse because, taken as a whole and read in context, Schmitt’s writings certainly draw attention to many bloody historical episodes of the persecution of minorities. His works expressly address and invariably characterise in negative terms the murderous religious wars of the 15th and 16th centuries and the genocide by Europeans colonialists of the Native Americans and indigenous peoples in the so-called ‘New World’ (Schmitt 2003: 199, 220–1). Hence, there can be no defence for Schmitt that the omissions already noted are explicable because these writings consist of abstract theoretical jurisprudential studies, which are disconnected from empirical sociological or historical issues, such that a measure of empirical naïveté regarding the persecution of minorities is only to be expected. On the contrary, many of Schmitt’s writings possess a remorseless empirical realism and enhanced sensitivity to real-life legal and constitutional dilemmas. Hence, they can hardly be accused of naiveté regarding many of the most morally and ethically problematic features of human history, including crisis tendencies in liberal democracies, the threat posed by constitutionally unrestrained Marxist or Nazi dictatorship, and civil and interstate warfare. Schmitt’s apparent affirmation of any form of genuinely political stance, whether it be that of Sorel’s revolutionary socialism or Mussolini’s distinctive form of fascism, as both superior to and more honest than, mere liberal depoliticisations and resulting neutralisations, has proved problematic. It has led one phase of Schmitt’s work at least into a normative blind alley. Here, the affirmation of the form of the political (as distinct from its concrete content in particular cases) appears to displace any empirical concern for the normative qualities of the specific object or goals of politics itself. Once again, Schmitt’s critique of Kantian formalism, including that manifested in Kelsenian jurisprudence, potentially feeds back upon his Concept of the Political. This is something that Schmitt may have realised but never articulated expressly in a self-critical way, or even acknowledged implicitly in later editions of his Weimar works. For example, his Constitutional Theory (1928/2008a), The Guardian of the Constitution (1931) and Legality and Legitimacy (1932/2004b) are interesting in this regard. Each exhibits a far more measured element of respect for established constitutional law principles, and for the importance of constitutional adjudication to respect the basic collective outcomes of earlier articulations of popular sovereignty. This renewed quest for democratic groundings of constitutional affairs, for the preservation of a type of stable order secured

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in part by such constitutional continuities and wider ‘concrete orders’, is light years away from the decisionism and quasi-political existentialism evident in Political Theology for example. And yet Schmitt’s works rarely contain any self-critical reflections that honestly explain their various shifts in stance in response to revealed and accepted problems within earlier positions. In this sense, they are unacceptably dogmatic as contributions to jurisprudence where, in my view, a measure of self-critical reflexivity remains a basic – if too often ignored – scholarly obligation. My own synthetic reconstruction has sought as far as possible to defuse, if not neutralise, problematic fascistic appropriations of a Schmittian model of ‘the political’. This has involved giving particular emphasis to specifically normative elements of Schmitt’s writings that are clearly incompatible with permanently unrestrained dictatorship and tyrannical governance. Indeed, it is even possible to cite parts of this book whose clear invocation of ethical and moral values in relation to war is clear: No program, no ideal, no norm, no expediency confers a right to dispose of the physical life of other human beings. … There exists no rational purpose, no norm no matter how true, no program no matter how exemplary, no social ideal no matter how beautiful, no legitimacy nor legality which could justify men in killing each other for this reason … The justification of war does not reside in its being fought for ideals or norms of justice, but in its being fought against a real enemy. (Schmitt 1996a: 48–9) Schmitt simply asserts that there can be no moral or other normative justification for war, perhaps because resort to military action to safeguard our homeland at the expense of another has no greater extrinsic moral worth than the acts of those enemies who are threatening this homeland. If all human life possesses moral value and every person’s life is of equal value, then no morality or other normative system can ever justify its destruction. Only a political and ‘existential’ justification founded upon life-and-death struggles against an enemy threatening to destroy a people’s entire ‘way of life’, can possibly suffice (Schmitt 1996a: 49). Schmitt thus rejects John Locke’s Christian argument that defensive wars are morally justified because human life is itself a gift entrusted to us by God (Slomp 2009: 436). Indeed, the above quotation also amounts to a potentially credible and distinctly moral argument concerning the immoral nature of acts of killing committed outside the context of collective self-defence. These and other passages show that efforts to entirely disentangle a realist analysis of domestic politics/geopolitics from ethical value-judgements is a fraught exercise. This is because such values inevitably re-appear from within the zone of political analysis itself. Slomp recognises an important distinction here when she notes:

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To say that Schmitt rejects the possibility of any moral justification for hostility and conflict does not imply that Schmitt refrains from taking a moral position on the issue. On the contrary, his condemnation of wars fought for economic advantage or prestige, his sarcasm in denouncing wars fought to impose supposedly ‘higher values’ such as human rights or democracy, his insistence that his own theory does not recommend bellicosism …, and his open disapproval for cruel and intense wars reveal Schmitt’s moral stand. But for Schmitt, moral views on war do not provide moral justifications for war. (Slomp 2009: 445) It is surely helpful to insist upon a relative distinction between moral and political analysis, and to criticise the misrepresentation of political conflict as a struggle between a metaphysically conceived good versus evil. However, Schmitt’s appeal to the autonomy of politics surely goes too far, and possibly merely inverts Kelsen’s attempt to isolate a politics-free realm of ‘pure’ legal norms amenable to a strictly objective and scientific form of analysis. If this argument has merit, then a contemporary form of Schmittian analysis must be as open to the possible mediation of distinctly geopolitical and international law themes, such as waging war and making peace, by moral and ethical factors, as it is to the mediation of legal themes by political ones. It is possible to accept Schmitt’s critique of the potential dangers stemming from the ‘moralisation’ and ‘juridification’ of essentially political disputes, including the danger that the resulting depoliticisations and neutralisations can generate counterproductive outcomes. And yet it does follow from this that we have to accept that morality and ethics have no jurisdiction whatsoever over political affairs. As the above quote makes clear, Schmitt claims that demanding soldiers to risk their lives for an overseas war of colonial expansionism for example cannot be justified in moral and/or ethical terms. Such a demand, he implies, is itself morally grotesque. Of course, this is a dogmatic, unreasoned and grossly under-theorised ethical claim, which defenders of humanitarian intervention to preserve human rights in contexts of actual or emerging genocide would robustly challenge. Nevertheless, decisive passages of Schmitt’s writings frequently both presuppose and implicitly contain an all too suppressed ethical dimension: one that contemporary Schmittian scholarship would do well to elucidate attentively, rather than rejecting in the name of a cynical and amoral ‘realism’ concerning international geopolitics. Nevertheless, it is hard to resist the conclusion that it remains all too easy to selectively cite and reconstruct extracts that, when read in isolation or otherwise out of context, potentially create the very opposite impression to that presented in the earlier chapters. Schmitt repeatedly, and for good reasons, attacks liberalism for naïvely promoting doctrines and constitutional interpretation, such as unrestricted freedom of association and ‘equal

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chance’, for lending unintentional support to anti-democratic Communist and fascistic movements clearly bent on the destruction of constitutional governance per se (Schmitt 2004b: 28–36, 48, 88, 94, 98). Hence, it is even more difficult to explain why we ought to exempt his own far more realistic writings from an analogous ‘Schmittian’ critique concerning their lack of ‘dictator-proof’ qualities – to use an apt if clumsy phrase. My study addresses Schmitt’s critique of that which he took to be manifestations of Anglo-American imperialism within international law and relations, including imperialistic aspects of the ideology of humanity. Undoubtedly, Schmitt’s critique of, for example, the Versailles Treaty, the resulting French occupation of the Rhineland, and the Nuremberg trials, is highly selective. He subjects British and American policy agendas of this time to a particularly severe form of scrutiny from which – as a firm German nationalist – he exempts Germany, even with respect to a postwar assessment of Hitler’s genocidal policies of military conquest and territorial annexation. It does not follow from Schmitt’s selective application underpinned by a clear nationalistic bias, that his published critique of Anglo-American imperialism is essentially and wholly misguided. Nor does such selectivity discredit the question of whether current US foreign policy in, for example Iraq and Afghanistan, remains susceptible, in whole or part, to a renewed Schmittian critique. On the contrary, any criticism we might now want to make of Schmitt’s writings on this score is meaningless unless it is informed by a spirit of even-handed criticism of the difficulties faced by those on the receiving end of any form of imperialistic practice, from whatever source. Undoubtedly many corrupt state and corporate officials evade detection and prosecution for all manner of questionable reasons. However, a demonstration of the existence of such unfortunate selectivity and evasion still provides no reason for discounting the grounds and arguments made against those cases which have been successfully exposed and prosecuted. In other words, the initial problem lies with the selective and unduly narrow application of Schmitt’s critique of imperialism within international law and relations, not with the contention that imperialistic practices are themselves problematic and merit critical examination. If we conclude that aspects at least of a Schmittian critique of Anglo-American economic and cultural imperialism can be shown to possess a continued relevance, as many contemporary neo-Schmittians have argued, then there is every reason to seek to identify analogies in other regions and from other sources, including those towards which Schmitt himself might have been more sympathetic (Ulmen 1987a; Mouffe 1999b, 2005). There is no contradiction in reconstructing a Schmittian approach to legal critique, which targets specific aspects of Schmitt’s own writings on, for example, international law or particularly one-sided elements of his advocacy of ‘decisionism’ directed against Kelsenian normativism. The

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practice of deploying ‘Schmitt against Schmitt’ is the opposite of either an uncritical affirmation or a dismissive and/or inappropriately ‘external’ form of critique. Indeed, an overly ‘defensive’ type of Schmittian approach, which seeks to block itself off from a self-critical awareness of its own current limitations, difficulties and internal inconsistencies, is barely worth keeping. This is because it surrenders the scholarly potential of a vital dynamic of self-correction found within Schmitt’s own work. It is also worth outlining a series of substantive criticisms of a number of Schmitt’s concrete claims. In key places Schmitt’s interpretation disregards implications of ideas and even clear doctrinal elements that do not fit his preconceived argument. This criticism also applies to how his model of the traditional Eurocentric system of international law (JPE) appears to downplay the sphere of contested dynastic and church-state politics of this period, together with range of important material technological factors, such as the role of the industrialisation in the transformation of Britain into a major power. Schmitt recognises that whilst the JPE largely ‘neutralised’ earlier forms of bloody religious strife, it allowed the non-European world to become a site for unrestrained and bloody conflict between the major European powers. In this specific context, and despite the apparently generalised critique of depoliticisation and neutralisation as wholly negative aspects of liberalism and legal legality, Schmitt appears to give a positive significance to these ideological practices when it comes to the JPE (Schmitt 1996b: 47–8; Schmitt 2003: 62–5). Once again, it is hard to avoid the conclusion that Schmitt over-generalises his critique of depoliticisation and neutralisation in works such as Political Theology and The Concept of the Political, only to have to reverse his position when confronted with the self-evidently positive humanitarian gains stemming from the legal suppression – through ‘neutralisation’ – of the source of the 15th- and 16th-century religious wars. Schmitt’s attempts to avoid any moralistic discrimination between different occasions for political conflict including war breaks down because, for good historical as well as moral reasons, he recognises the ethically positive humanitarian qualities of at least some types of depoliticisation and neutralisation. In one sense, it is strange indeed to level the charges of idealisation and depoliticisation against Schmitt of all writers, or to exempt his account of the JPE from a Schmittian critique of formalism and normativism contained within his Weimar works. With respect to the criticism of setting up an idealised model as a rhetorical foil for a critique of an alleged ‘fall from grace’, Schmitt deployed this rhetorical tactic in his The Crisis of Parliamentary Democracy (1923/1988). Schmitt needed to avoid the understandable temptation of providing an over-inflated and exaggerated model of these ideals. I would argue that Schmitt’s deployments of immanent criticism in these contexts sacrifice methodological rigour for enhanced rhetoric effectiveness, bordering on polemical myth-making.

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In addition, even a sympathetic reader cannot avoid identifying a series of inconsistencies in Schmitt’s orientation towards certain values of classic liberalism. Schmitt defends authoritarian suspensions of specific basic rights and parliamentary governance during periods of emergency rule as necessary to preserve the democratic core of constitutional governance. Schmitt always gives an ethically negative connotation to the idea of ‘tyranny’ and ‘tyrannical’ governance. His distinction between the temporary and constitutionally authorised form of ‘commissarial’ dictatorship and ‘sovereign dictatorship’ that permanently negates constitution governance altogether, tends to support this contention. Yet, the radical theoretical framework of The Concept of the Political appears to provide little or no support for such moral or ethical critiques of any models of governance providing the rulers expressly recognise their own sovereign power by making the distinction between collective friends, enemies and neutrals. Here, it is precisely liberal modes of constitutional governance that are attacked on strictly realist grounds that they are structurally incapable of making such distinctions. As noted above, these regimes thereby open themselves up to subversion by fascistic, communist and theocratic movements willing to exploit the ‘equal chance’ opportunities liberal democracies provide to seize power with a view to abolishing any form of democratic governance. Schmitt’s more detailed legal studies on constitutional questions, in particular, Constitutional Theory and Legality and Legitimacy, originally published in 1928 and 1932 respectively, articulate a defence of a democratic form of constitutional governance and provide ample material for his defenders to counter charges that there is an essentially fascistic core (as distinct from potential authoritarian fascistic implications) in Schmitt’s Weimar works. Nevertheless, this stance of relative conservative and defensive moderation directed against both communist and Nazi movements, appears inconsistent with the radical implications of the Concept of the Political and Political Theology. Recognition of this tension cannot be side-stepped by making biographically oriented references to supposedly more ‘mature’ reflections correcting difficulties in earlier works. This is because their later editions preserved the sources of these difficulties by generally confining such self-critical aspects, which Schmitt rarely makes as express self-criticisms, to brief comments in mere prefaces. For example, whilst Schmitt’s Three Types of Juristic Thought makes powerful criticisms of both decisionism and Kelsenian normativism, it does not identify which specific aspects of the decisionism of his earlier Political Theology need to be repudiated and for what specific reasons. In addition, many Schmittians would applaud the idea of politically engaged scholarship that renounces pretensions of neutrality and objectivity. However, Schmitt’s own polemics, including his claims regarding the inappropriateness of allowing constitutional courts – as opposed to an

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elected President – to act as a ‘guardian of the constitution’ develop some curiously ‘unschmittian’ and distinctly formalistic arguments. Schmitt’s Guardian of the Constitution work of 1931 provides an account of the nature of legal decision-making. Here, he reverts to a type of formalism involving the mechanical subsumption of facts under given and determinate legal norms that even Kelsen himself could reject as overly formalistic and mechanical and, insufficiently attentive to the discretionary and decisionist aspects of law in action. The implications of these arguments may, perhaps, have served a defensible position within the immediate political institutional context towards which they were directed. However, they are barely consistent with the overall thrusts of the remainder of Schmittian legal theory’s criticism of legal formalism and normativism. The credibility of the latter ought not to be reducible to whatever arguments are most ‘effective’, that is, instrumental as a means to a given end, within any immediate and transient context. Allowing Kelsen, of all theorists, to undermine one’s arguments on the grounds that their formalism underplays the role of discretion within legal decision-making, borders on the grotesque, almost an unbelievable role reversal. A similar point concerning internal discrepancies is apparent concerning Schmitt’s various analyses of the deployment of humanity, understood as primarily an ideological construct of liberal cosmopolitan. Although not addressed directly in the present work, it is possible to show how many of his works contain a concerted attempt to recuperate a positive, ethicallycharged conception of humanity as a regulative idea. This can be identified in concrete contexts as a prevailing humanitarian ethos that participants within specific concrete orders widely experience as a binding obligation to afford respect to, for example, wounded or captured enemy military personnel. I would argue that international law recognition of such manifestations of humanity not only falls outside the scope of a viable interpretation of Schmitt’s critique of the ideology of humanity but are positively supported by a Schmittian approach to international law. Nevertheless, perceptive critics of my efforts to make this argument will probably have already noticed the considerable amount of creative supplementation demanded by its substantiation. Schmitt’s unduly unrestrained and unqualified formulations of his critique of the ideology of humanity make life much easier for his critics than for sympathetic commentators. Again, I suspect Schmitt’s writings are more effective as largely destructive polemics than as immanent criticisms that carefully distinguish, by reference to theoretical and ethical arguments, between defensible and indefensible aspects of international law conceptions of humanity, human rights and humanitarian law. In this respect, the spirit of iconoclastic radicalism that many contemporary scholars, particularly leftists, ex-Marxists and poststructuralists, find so attractive, probably works against the credibility of Schmittian scholarship.

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In short, the main thrust of this book has aimed to provide a descriptively convincing and sympathetic account of how a Schmittian approach to law addresses questions of law as politics, ideology and strategic myth. However, it also suggests that to remain consistent, a suitably self-critical approach must also arise that is willing and able to subject its own claims to the same level of intensive scrutiny that Schmitt himself subjected the works of others, even Hobbes. The results of such criticism must inform the ongoing process of revision and the jettisoning of outdated or otherwise problematic positions and claims. If there was a time when it made sense to be either for or against Schmitt, this has long past as this writer has begun to take his place within the list of modern classics of legal theory, including Bentham, Hegel, Hobbes, Kelsen and Rawls, and needs to be assessed accordingly without either taboo or uncritical celebration. In its own way, I hope my book will be recognised as contributing to this process.

Bibliography

Agamben, Georgio, 1998, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen, Stanford, CA: Stanford University Press ——2005, State of Exception, trans. Kevin Attell, Chicago: University of Chicago Press Aravamudan, Srinivas, 2005, ‘Carl Schmitt’s The Nomos of the Earth: Four Corollaries’, in Rasch 2005: 227–36 Asprey, Michele M., 2003, Plain Language for Lawyers, Federation Press Balakrishnan, Gopal, 2000, The Enemy: An Intellectual Portrait of Carl Schmit, London: Verso Axtmann, R., 2007, ‘Humanity or Enmity? Carl Schmitt on International Politics’, International Politics, 44(5): 531–51 Beaseley-Murray, 2005, ‘Tyrants and Pirates’, in Rasch 2005: 217–25 Bendersky Joseph, 1979, ‘The Expendable Kronjurist: Carl Schmitt and National Socialism, 1933–36’, Journal of Contemporary History, 14(2) (Apr.), 309–28 ——1983, Carl Schmitt: Theorist for the Reich, Princeton: Princeton University Press. ——2007, ‘Carl Schmitt’s Path to Nuremberg: A Sixty-Year Reassessment’, Telos 139: 6–34 Ben-Shai, Roy, 2009, ‘Schmitt or Hamlet: The Unsovereign Event,’ Telos 147: 94–8 Bertold, Lutz, 1993, ‘Wer halt zur Zeit den Satan auf? Zur Selbstglossierung Carl Schmitts Leviathan’, Zeitschrift fur Sozialwissenschaft 21: 285–99 Best, Werner, 1941, ‘Grundfragen einer deutschen Grossraum-Verwaltung’, Festgabe fur Heinrich Himmler, Darmstadt: L.S. Wittich Verlag, 33–60 Blindow, Felix, 1999, Carl Schmitts Reichsordnung: Strategie für einen europäischen Großraum, Berlin: Akademie Verlag Böckenförde, E.-W., 1998, ‘The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory’, in Law as Politics. Carl Schmitt’s Critique of Liberalism, D. Dyzenhaus (ed.), Durham, N.C.: Duke University Press, 37–55 Boer, Roland, 2009, Political Myth: On the Use and Abuse of Biblical Themes, Durham, N.C.: Duke Univeristy Press Bosteels, Bruno, 2005, ‘The Obscure Subject’, in Rasch 2005: 296–305 Bottici, Chiara, 2007, A Philosophy of Political Myth, Cambridge: Cambridge Univeristy Press ——2009, ‘Philosophies of Political Myth, a Comparative Look Backwards’, European Journal of Political Theory 8(3): 365–82 Breuer, Stefan, 1982, Anatomie der konservativen Revolution, Darmstadt: Wissenschaftliche Buchgesellschaft

280  Carl Schmitt: Law as politics, ideology and strategic myth Brown, C., 2007, ‘From Humanized War to Humanitarian Intervention: Carl Schmitt’s Critique of the Just War Tradition’, in The International Political Thought of Carl Schmitt. Terror, Liberal War and the Crisis of Global Order, L. Odysseos and F. Petito (eds), Abingdon: Routledge, 56–69 Buck-Morss, Susan, 2008, ‘Sovereign Right and the Global Left’, Cultural Critique 69: 145–71 Burchard, Christoph, 2006, ‘Interlinking the Domestic with the International: Carl Schmitt on Democracy and International Relations’, Leiden Journal of International Law 19: 90 Byers, Michael, 2003, ‘Preemptive Self-defense: Hegemony, Equality and Strategies of Legal Change’, in The Journal of Political Philosophy 11: 171–91 Caldwell, Peter C., 1997, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism, Durham, N.C.: Duke University Press ——2005, ‘Controversies over Carl Schmitt: A Review of Recent Literature’, The Journal of Modern History 77(2): 357–87 Carty, Anthony, 2001, ‘Carl Schmitt’s Critique of Liberal International Legal Order Between 1933 and 1945’, Leiden Journal of International Law 14, 25–76 Cassirer, Ernst, 1979, Symbol, Myth and Culture, New Haven: Yale University Press ——1974, The Myth of the State, New Haven: Yale University Press Chandler, David, 2008, ‘The Revival of Carl Schmitt in International Relations: The Last Refuge of Critical Theorists?’, Millennium: Journal of International Studies 37(1): 27–48 Christi, 1984, “Hayek and Schmitt on the Rule of Law,” Canadian Journal of political Science, (17):521-35. Cohen, Jean, 2006/7, ‘The Role of International Law in Post-Conflict ConstitutionMaking: Toward a Jus Post Bellum for Interim Occupations’, New York Law School Review 51: 497–531 Connery, Christopher L., 2001, ‘Ideologies of Land and Sea: Alfred Thayer Mahan, Carl Schmitt, and the Shaping of Global Myth Elements’, Boundary 2 28(2), 173–201 Cristi, Renato, 1998, Carl Schmitt and Authoritarian Liberalism. Strong State, Free Economy, Cardiff: University of Wales Press Dean, Mitchell, 2004, ‘Politics and the Nomos of World Order’, in Wendy Larner and William Walters (eds), Global Governmentality: Governing International Spaces, London: Routledge ——2006, ‘Political Mythology of World Order: Carl Schmitt’s Nomos’, Theory Culture Society 23: 1–22 Dellavalle, Sergio, 2008, ‘The Necessity of International Law’, in Russell A. Miller and Rebecca M. Bratspies (eds), Progress in International Law, Leiden, Boston: Martinus Nijhoff Publishers Diner and Stolleis, 1999, Hans Kelsen and Carl Schmitt: a juxtaposition, Tel Aviv, Bleicher. Dotti, J.E., 1999, ‘From Karl to Carl: Schmitt as a Reader of Marx’, in Mouffe, 1999: 92–117 Douzinas, 2009, Costas Douzinas: ‘Polis, State, Cosmopolis’, Bedeutung Magazine, Issue 3: Life & Death.

Bibliography 281 Duncan, Kelly, 2004, ‘Carl Schmitt’s Political Theory of Representation’, Journal of the History of Ideas 65(1): 113–34 Dyzenhaus, David, 1994, ‘“The Machine Runs Itself”: Carl Schmitt on Hobbes and Kelsen’, Cardozo Law Review (August) 16: 1–29 ——1997, Legality and Legitimacy. Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press ——2006, The Constitution of Law. Legality in a Time of Emergency, Cambridge: Cambridge University Press Escorihuela, Alejandro Lorite, 2003, ‘Alf Ross: Towards a Realist Critique’, EJIL 14(4): 703–66 Fitzpatrick, Peter, 1992, The Mythology of Modern Law, London: Routledge Gadamer, 1989, Truth and Method, 2nd edition, London, Sheed and Ward Galli, 1996, Carlo Galli, Genealogia della politica. Carl Schmitt e la crisi del pensiero politico moderno, il Mulino, Bologna Ghaleigh, Navraj, ‘Into a Brightly Lit Room: Braving Carl Schmitt in “Europe”’, in Joerges and Ghaleigh 2003: 43–53 Gottfried, Paul, 1990, Carl Schmitt: Politics and Theory, NY: Greenwood Press Gourgouris, G., 1993, Does Literature Think?, Stanford University Press Gourgouris Stathis, 2000, “Symposium: The Concept of The Mythical (Schmitt with Sorel)” May, 2000 21 Cardozo L. Rev. 1487 Groh, R., 1998, Arbeit an der Heillosigkeit der Welt. Zur politisch-theologischen Mythologie und Anthropologie Carl Schmitts, Frankfurt am Main: Suhrkamp Gross, Raphael, 2007, Carl Schmitt and the Jews. The ‘Jewish Question,’ the Holocaust, and German Legal Theory, trans. Joel Golb, Madison: University of Wisconsin Press Habermas, Jurgen, 1998, The Inclusion of the Other, Cambridge MA: MIT Press Hardt and Negri, 2004, Multitude, London: Penguin Hell, Julia, 2009a, ‘Anselm Kiefer’s Twin Towers and the Trope of Imperial Decline’, The Germanic Review 84(1): 84–93 ——2009b, ‘Imperial Ruin Gazers, or Why Did Scipio Weep?’, in Ruins of Modernity, (eds), Julia Hell and Andreas Schoenle, Durham, N.C.: Duke University Press ——2009c, ‘Katechon: Carl Schmitt’s Imperial Theology and the Ruins of the Future,’ The Germanic Review 88(4): 283–327 Hofmann, H., 2002, Legitimität gegen Legalität. Der Weg der politischen Philosophie Carl Schmitts, Berlin: Duncker & Humblot Hohendahl, Peter-Uwe, 2008, ‘Political Theology Revisited: Carl Schmitt’s Postwar Reassessment’, Konturen, 1: 1–28 Holmes, Stephen, 1993, The Anatomy of Antiliberalism, Cambridge, MA: Harvard University Press Hooker, William, 2009, Carl Schmitt’s International Thought: Order and Orientation, Cambridge: Cambridge University Press Jabri Vivienne, 2007, War and the Transformation of Global Politics. Palgrave Macmillan. Jacobson, Arthur and Schlink, Bernhard, 2002, Weimar: A Jurisprudence of Crisis, Berkeley: University of California Press Jameson 2005, “Notes on the Nomos” South Atlantic Quarterly Spring 2005 104(2):199204. Joerges, C. and Ghaleigh, N., 2003, Darker Legacies of Law in Europe, Oxford: Hart

282  Carl Schmitt: Law as politics, ideology and strategic myth Jürgen Habermas, 1999, ‘Bestiality and Humanity: A war on the bored between law and morality’, Die Zeit, 54, (18): 1–8. Kahn, Victoria, 2003, ‘Hamlet or Hecuba: Carl Schmitt’s Decision’, Representations, 83 Kalyvas, Andreas, 2008, Democracy and the Politics of the Extraordinary, Cambridge: Cambridge University Press Kant, 1790, “Critique of Judgement” OUP Oxford; Revised edition, 2008 Kaufmann, M., 1988, Recht ohne Regel? Die philosophischen Prinzipien in Carl Schmitt’s Staats-und Rechtslehre, Freiburg: Karl Alber. Kelsen, Hans, 1911, Hauptprobleme der Staatsrechtslehre, [Main Problems in the Theory of Public Law], Tubingam ——1922, The Sociological and Legal Concepts of the State ——1920, Das Problem der Souveranitat,Tubingen: Mohr, 320 ——1967, Pure Theory of Law, Berkeley, Calif.: University of California Press ——1968, Der soziologische und der juristische  Staatsbegriff. Kritische. 21 Acta Philosophica Fennica 83. ——1992, Introduction to the Problems of Legal Theory, Oxford: Clarendon Kennedy, Ellen, 1987, ‘Carl Schmitt and the Frankfurt School’, Telos 71: 37–66 ——1988, translators introduction to Schmitt 1988 ——2004, Constitutional Failure: Carl Schmitt in Weimar, Durham, N.C.: Duke University Press Kervégan, Jean-Francois, 1992, Hegel, Carl Schmitt. Le politique entre spéculation et positivité, Paris: Presses Universitaires de France ——1999, ‘Carl Schmitt and World Unity’, in Chantal Mouffe (ed.), The Challenge of Carl Schmitt, London: Verso, 54–74 Khanna, Ranjana, 2005, ‘On Asylum and Genealogy,’ in Rasch 2005: 371–80 Klickovic, Sava, 1968, ‘Benito Cerano: Ein Moderne Mythos’, in Epirrhosis: Festgabe fur Carl Schmitt, vol 1, Berlin: Dunker & Humblot, 265–73 Koenen, Andreas, 1995, Der Fall Carl Schmitt. Sein Aufstieg zum ‘Kronjuristen des Dritten Reiches’, Darmstadt: Wissenschaftliche Buchgesellschaft Koselleck, Reinhart, 1985, ‘The Historical-Political Semantics of Asymmetric Counter-concepts’, in Futures Past: On the Semantics of Historical Time, trans. Keith Tribe, Cambridge: MIT Press Koskenniemi, Martti, 2000, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law, 17 ——2004, ‘International law and Hegemony: A Reconfiguration,’ Cambridge Review of International Affairs, 2004) http://www.helsinki.fi/eci/Publications/MHegemony.pdf ——2005, ‘International Law in Europe: Between Tradition and Renewal’, The European Journal of International Law 16(1): 113–24 Krisch, Nico, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, European Journal of International Law 16 Levinson, Brett, 2005, ‘The Coming Nomos’, in Rasch 2005: 205–15 Leyte, Arturo, 2005, ‘A Note on the Nomos of the Earth’, in Rasch 2005: 285–93 Lorberbaum Menachem, 2007, Making Space for Leviathan: On Hobbes’ Political Theory Hebraic Political Studies, Vol. 2, No. 1 (Winter 2007), 78–100 available from http://www.hpstudies.org/20/admin/pdfs/4fbba1e0-e4e2-46b1-815af9c0766be177.pdf

Bibliography 283 Löwith, Karl, 1995, ‘The Occasional Decisionism of Carl Schmitt’, in Karl Löwith, Martin Heidegger and European Nihilism, Richard Wolin (ed.) and G. Steiner (trans.), New York: Columbia University Press: 37–69 Luoma-Aho, Mika, 2000, ‘Carl Schmitt and the Transformation of the Political Subject,’ The European Legacy: Toward New Paradigms 5(5): 703–16 Mauss, Inger, 1980, Bürgerliche Rechtstheorie und Faschismus. Zur sozialen Funktion und aktuellen Wirkung der Theorie Carl Schmitts, München: Wilhelm Fink ——1998, ‘The 1933 Break in Carl Schmitt’s Theory’, in Dyzenhaus 1998: 98–216 Marramao, Giacomo, 2000, ‘The Exile of the Nomos: For a Critical Profile of Carl Schmitt’, in Cardozo Law Review, 21(3)–(4), 1583–7 Maschke, Gunter, ‘Die Zweideutigkeit der Entscheidung – Thomas Hobbes und Juan Donoso Cortes im Werk Carl Schmitts’, in H. Quartisch, Complexio Oppositorum 193–221 McCarthy, Thomas, ‘Introduction’, in Schmitt 1988 McCormick, John P., 1994, ‘Fear, Technology, and the State: Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany’, Political Theory 22(4): 619–52 ——1997, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology, Cambridge: Cambridge University Press ——1990, ‘Dilemmas of Dictatorship’, in Dyzenhaus 1998: 217–51 ——2003, ‘Carl Schmitt’s Europe’, in C. Joerges and N. Ghaleigh, Darker Legacies of Law in Europe, Oxford: Hart Mehring, Reinhard, 1989, Pathetisches Denken. Carl Schmitts Denkweg am Leitfaden Hegels: Katholische Grundstellung und antimarxistische Hegelstrategie, Berlin: Duncker & Humblot ——2009, Carl Schmitt: Aufstieg und Fall. Eine Biographie, München: C.H. Beck ——1996, ‘Karl Lowith, Carl Schmitt, Jacob Taubes und das Ende der Geschichte’, Zeitschrift fur Religions- und Geistesgeschichte (48)3: 231–48 ——1998, ‘Liberalism as a Metaphysical System,’ in Dyzenhaus 1998: 131–58 ——2008, ‘“Raumrevolution” als Rechtsproblem. Zum politischen Kontext und Wandel von Carl Schmitts Grossraumdenken’, in Grossraum-Denken, Carl Schmitts Kategorie der Grossraumordnung, (ed.), Rudiger Voigt, Stuttgart: Franz Steiner Verlag, 99–118 Meier, Heinrich, 1998, The Lesson of Carl Schmitt. Four Chapters on the Distinction between Political Theology and Political Philosophy, Chicago: University of Chicago Press ——2006, Carl Schmitt and Leo Strauss: The Hidden Dialogue, Chicago: University of Chicago Press Melchers, Carl, 2008, Carl Schmitt als ‘Imperialismustheoretiker’: Zur Renaissance der Vorstellung von der imperialen Souveränität der vereinigten Staaten, Saarbrucken: VDM Verlag Dr. Muller Melville, Herman, 2008, Benito Cereno, Brooklyn: Melville Moreiras, Alberto, ‘Against Cultural-Political Closure’, in Rasch 2005: 263–75 Mouffe, Chantal (ed.), 1999a, The Challenge of Carl Schmitt, London: Verso ——1999b, ‘Carl Schmitt and the Paradox of Liberal Democracy’, in Mouffe 1999 ——2005, ‘Schmitt’s Vision of a Multipolar World Order’, in Rasch 2005: 245–51 Müller, Jan, 1999a, ‘Carl Schmitt’s Method: Between Ideology, Demonology and Myth’, Journal of Political Ideologies 4(1): 615

284  Carl Schmitt: Law as politics, ideology and strategic myth ——1999b, ‘Myth, Law and Order: Schmitt and Benjamin read “Reflections on Violence”’, in History of European Ideas, vol 29 ——2000, ‘Carl Schmitt and the Constitution of Europe’, 21 Cardozo Law Review 1777 ——2003, A Dangerous Mind. Carl Schmitt in Post-War European Thought, New Haven: Yale University Press Neumann, Volker, 2002, ‘Carl Schmitt’, in Jacobson and Schlink, Weimar: A Jurisprudence of Crisis, Berkley: University of California Press, 280–90 Noack, Paul, 1993, Carl Schmitt. Eine Biographie, Berlin/Frankfurt: Propylaen Verlag Norbert, Roland, 1994, Legal Anthropology, London: Athlone Press Norris, Andrew, 2000, ‘Carl Schmitt’s Political Metaphysics: On the Secularization of “the Outermost Sphere”’, Theory & Event 4(1): 1–33 ——2007, ‘Sovereignty, Exception, and Norm’, Journal of Law and Society 34(1): 31–45 Nunan, Timothy, 2011, Carl Schmitt Writings on War, Cambridge: Polity O’Beebee, Thomas, 2006, ‘Carl Schmitt’s Myth of Benito Cereno’, Seminar: A Journal of Germanic Studies 42(2): 114–34 Odysseos, Louiza and Petito, Fabio (eds), 2007, The International Political Thought of Carl Schmitt: Terror, Liberal War and the Crisis of Global Order, London: Routledge Ojakangas Mika, 2006, A Philosophy of Concrete Life: Carl Schmitt and the Political Thought of Late Modernity, 2nd edn, Peter Lang Palaver, Wolfgang, 2002, ‘Carl Schmitt, Mythologue Politique’, in Leviathan dans la doctrine de l’etat de Thomas Hobbes, Paris: Seuil Pan, David, 1987, ‘Political Aesthetics: Carl Schmitt as Hamlet, Telos 72: 3539 ——2008, ‘Carl Schmitt on Culture and Violence in the Political Decision’, Telos 142: 49–72 ——2009a, ‘Afterword: Historical Event and Mythic Meaning in Carl Schmitt’s Hamlet or Hecuba’, in Schmitt 2009: 69–119 ——2009b, ‘Against Biopolitics: Walter Benjamin, Carl Schmitt, and Giorgio Agamben on Political Sovereignty and Symbolic Order’, German Quarterly 82(1) Pan, N. and Berman, R.A., (2008). ‘Introduction’, Telos 3, 142. Paulson, Stanley, 1993, ‘Continental Normativism and its British Counterpart: How Different Are They?’, Ratio Juris 6: 227–44 Pearson, Geoff and Salter, Michael 1999, “Getting Public Law Back into a Critical Condition: The Rule of Law as a Source for Immanent Critique” Social & Legal Studies 8:483-508 Piccone, Paul and Ulmen, Gary, 1990, ‘Schmitt’s “Testament” and the Future of Europe’, Telos 83 (spring): 3–34 Pourciau, Sarah, 2005, ‘Bodily Negation: Carl Schmitt on the Meaning of Meaning’, MLN 120(5) December (Comparative Literature Issue): 1066–90 Puchalska-Tych, Bogusia and Salter, Michael, 1996, ‘Comparing Legal Cultures of Eastern Europe: the Need for a Dialectical Analysis’, Legal Studies (The Journal of the Society of Public Teachers of Law) 16(2): 157–84. Quartisch, Helmut (ed.), 1988, Complexio Oppositorum-Uber Carl Schmitt, Berlin: Dunckler & Humblot Rasch, William, 2000, ‘Conflict as a Vocation: Carl Schmitt and the Possibility of Politics’, Theory, Culture, and Society 17(6): 1–32

Bibliography 285 ——2003, ‘Human Rights as Geopolitics: Carl Schmitt and the Legal Form of American Supremacy’, Cultural Critique 54 ——2004a, Sovereignty and Its Discontents, London: Birkbeck Law Press ­——2004b, Judgment: The Emergence of Legal Norms Cultural Critique, 57, pp. 93 – 103. ——2005, ‘Enmity as a Structuring Principle’, South Atlantic Quarterly (2005) 104(2), 253–61 (special issue on Schmitt’s The Nomos of the Earth edited by Rasch and cited as Rasch 2005) ——2008, ‘Anger Management: Carl Schmitt in 1925 and the Occupation of the Rhineland’, New Centennial Review 8(1): 57–79 Rawls, J, 1993, ‘Political Liberalism’, New York: Columbia University Press, pp. xxv – xxvi Rigaux, Francois, 1998, ‘Hans Kelsen on International Law’, 9 Eur J International Law 325–43 Rust and Lupton, ‘Introduction’, in Schmitt 2009 Rüthers, B., 1990, Carl Schmitt im Dritten Reich: Wissenschaft als Zeitgeistverstärkung?, München: C.H. Beck Salter, M, 1992, ‘Common  Sense  and  the  Resistance  to legal Theory’, Ratio Juris 5(2), p.212 ——1995, ‘A Dialectic Despite Itself: Overcoming the Phenomenology of Legal Culture’, Social and Legal Studies, 4, pp. 453 – 76 Salter, Michael, 1999, ‘Neo-Fascist Legal Theory on Trial: An Interpretation of Carl Schmitt’s Defence at Nuremberg from the Perspective of Franz Neumann’s Critical Theory of Law’, Ratio Juris 5(2) 161–93 Salter and Twist, 2007, “The Micro-Sovereignty of Discretion in Legal DecisionMaking: Carl Schmitt’s Critique of Liberal Principles of Legality” 3 Web JCLI . Sartori, G., 1989, ‘The Essence of the Political in Carl Schmitt’, Journal of Theoretical Politics 1(1): 63–75 Scheuerman, William, 1995, ‘Is Parliamentarism in Crisis? A Response to Carl Schmitt’, Theory and Society 24: 135–58 ——1996, ‘Legal Indeterminacy and the Origins of Nazi Legal Thought: The Case of Carl Schmitt’, History of Political Thought 17(4): 571–90 ——1999, Carl Schmitt: The End of Law, New York: Rowman & Littlefield ——2004, ‘International Law as Historical Myth’, Constellations 11(4): 537–50 ——2006, ‘Carl Schmitt and the Road to Abu Ghraib’, Constellations 13(1): 108–24 Schmitt, Carl, 1912, Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis ——1914, Der Wert des Staates und die Bedeutung des Einzelnen ——1916, Theodor Däublers‚ Nordlicht: Drei Studien über die Elemente, den Geist und die Aktualität des Werkes ——1921, Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf ——1926, Die Kernfrage des Völkerbundes, Berlin ——1928, Verfassungslehre ——1931, Der Huter der Verfassung [The  Guardian of the Constitution] (1931) Berlin, Duncker & Humblot. (reissued 1996) ——1931/1996, Der Hüter der Verfassung (1931), Berlin: Duncke & Humblot, 1996 ——1932/1988 ‘Voelkerrechtliche Formen des modernen Imperialismus’ [1932], in Schmitt 1988: 162–80 ——1938, Die Wendung zum diskriminierenden Kriegsbegriff

286  Carl Schmitt: Law as politics, ideology and strategic myth ——1938, Die Wendung zum diskriminierende Kriegsbegriff, Munich: Duncker & Humblot ——1939a, Völkerrechtliche Großraumordnung und Interventionsverbot für raumfremde Mächte. Ein Beitrag zum Reichsbegriff im Völkerrecht ——1939b ‘Grossraum gegen Universalismus: Die volkerrechtliche Kampf um die Monroedoktrin’, in Schmitt 1940/1988 ——1940, Positionen und Begriffe im Kampf mit Weimar- Genf- Versailles 1923–1939, Berlin: Duncker & Humblot, [1940], 2nd edn, 1988 ——1940a, ‘Die Raumrevolution: durch den totalen Krieg zu einem totalen Frieden’, Staat, Grossraum, Nomos 388–91. Print ——1940b, ‘Raum und Grossraum im Volkerrecht’, 24 Zeitschrift fer Volkerrecht, 145–64 ——1941, Volkerrechtliche Grossraumordnung, Berlin: 29 ——1942/1981, Land und Meer. Eine weltgeschichtliche Betrachtung, 3rd edn, Cologne: Maschke ——1942/1997, Land und Meer. Eine weltgeschichtliche Betrachtung, Berlin, Duncker & Humblot ——1942, ‘Raumrevolution: vom Geist des Abendlandes’, Deutsche Kolonialzeitung 12: 219–21 ——1942/1995, ‘Beschleuniger wider Willen, oder: Problematik der westlichen Hemisphare’, reprinted in Schmitt 1995: 431–6 ——1943, ‘Die letzte globale Linie’, in Schmitt 1995: 441–8 ——1947, Ex Captivitate Salus, Erfahrungen der Zeıt 1945/47, Cologne: Greven Verlag ——1950a, Donoso Cortes in gesamteuropäischer Interpretation ——1950b, Ex captivitate salus. Erinnerungen der Zeit 1945/47, also Paris: Vrin 2003 ——1952, ‘Die Einheit der Welt’, Merkur 6: 1–11 ——1955, ‘Die geschictliche Struktur des heutigen Welt-Gegensatzes yon Ost und West’, in Freundschaftliche Begegnungen: Festschrift fur Ernst Junger zum 60. Geburtstag (Frankfurt a/M: Vittorio Klostermann, 1955), 147. ——1965, ‘Die vollendete Reformation: Bemerkungen und Hinweise zu neuen Leviathan-Interpretationen’, in Der Staat 4: 51–69 ——1970, Politishe Theologie II. Die Legende von der Erledigung jeder Politischen Theologie ——1985, in Schmitt 2005 ——1986, Political Romanticism, trans. Guy Oakes, Cambridge: MIT Press, Original publication: Politische Romantik, 1919, 2nd edn 1925 ——1987,‘The Legal World Revolution’, Telos 72: 73–90. ——1988, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy, Cambridge: MIT Press, Original publication: Die geistesgeschichtliche Lage des heutigen Parliamentarismus, 1923, 2nd edn 1926 ——1988a, Positionen und Begriffe im Kampf mit Weimar- Genf- Versailles 1923–1939, Berlin: Duncker & Humblot ——1988b, ‘Grossraum gegen Universalism’, in Schmitt 1988a ——1988c, ‘Die Rheinlande als Objekt internationaler Politik’, in Schmitt, 1988a: 26–33 ——1988d, ‘Der Reichsbegriff im Volkerrecht’, in Schmitt 1988: 303–12 ——1991a, ‘Volkerrechtliche Grossraumordnung mit Interventions verbot fur raumfremde Machte’, Berlin: Duncker & Humblot [1941], 2nd edn

Bibliography 287 ——1991b, Glossarium. Aufzeichnungen der Jahre 1947–1951, hrsg.v. Eberhard Freiherr von Medem ——1993, ‘The Age of Neutralizations and Depoliticizations [1929]’, Telos 96: 134 ff ——1994 Die Diktatur, Berlin: Duncker & Humblot ——1995, Staat – Großraum – Nomos, Arbeiten aus den Jahren 1916–1969, (ed.), Günter Maschke, Berlin: Duncker & Humblot ——1995a, ‘Raum und Grossraum im Volkerrecht’, in Schmitt 1995: 234–68 ——1995b, ‘Die Einheit der Welt’, in Schmitt 1995: 219–33 ——1996a, The Concept of the Political, trans. George Schwab, New Brunswick: Rutgers University Press. There is also a University of Chicago Press; Expanded edition 2006, with an Introduction by Tracy B. Strong. Original publication: Der Begriff des Politischen, in Archiv für Sozialwissenschaften und Sozialpolitik 58/1927, 2nd book edn 1932 ——1996b, Roman Catholicism and Political Form, trans. G.L. Ulmen, Westport, CT: Greenwood Press. Original publication: Römischer Katholizismus und politische Form, 1923 ——1996c, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, trans. George D. Schwab and Erna Hilfstein, Westport, CT: Greenwood Press. Original publication: Der Leviathan in der Staatslehre des Thomas Hobbes, 1938 ——1999, ‘Ethic of State and Pluralistic State’, in Chantal Mouffe (ed.), The Challenge of Carl Schmitt, London: Verso: 195–203 ——2003, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G.L. Ulmen, NY: Telos Press. Original publication: Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum, 1950 ——2004a, On the Three Types of Juristic Thought, trans. J.W. Bendersky, Westport, CT: Praeger. Original publication 1934 ——2004b, Legality and Legitimacy, trans. Jeffrey Seitzer, Durham: Duke University Press. Original publication: Legalität und Legitimität, 1932 ——2005a, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George D. Schwab, Cambridge: MIT Press, 1985 / University of Chicago Press; University of Chicago edn, 2005 with an Introduction by Tracy B. Strong. Original publication: Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 1922, 2nd edn 1934. ——2005b, Frieden oder Pazifismus? Arbeiten zum Volkerrecht und zur internationalen Politik, (ed.), Günter Maschke, Berlin: Duncker & Humblot ——2005c, ‘Die Rheinlande als Object internationaler Politik’, in Schmitt 2005b, 26–50 ——2007, Theory of the Partisan: Intermediary Commentary on the Concept of the Political, trans. G.L. Ulmen, New York: Telos Press. Original publication: Theorie des Partisanen. Zwischenbemerkung zum Begriff des Politischen 1963, 2nd edn, 1975 ——2008a, Constitutional Theory, trans. J. Seitzer, Durham, NC: Duke University Press. Original publication: Verfassungslehre, 1928 ——2008b, Political Theology II: The Myth of the Closure of Any Political Theology, trans. Michael Hoelzl and Graham Ward, Cambridge: Polity Press ——2009, Hamlet Or Hecuba: The Intrusion of the Time into the Play, trans. David Pan and Jennifer R. Rust, NY: Telos Press. Originally published: Hamlet oder Hekuba. Der Einbruch der Zeit in das Spiel, 1956

288  Carl Schmitt: Law as politics, ideology and strategic myth ——2011/1994, ‘The International Crime of the War of Aggression and the Principle “Nullum crimen, nulla poena sine lege”’ (1945) in Nunan 2011: 125–98. Originally published as: Das international-rechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum crimen, nulla poena sine lege”, ed. with notes and an epilogue by Helmut Quaritsch, Berlin: Duncker & Humblot, 1994 Schwab, George, 1987, ‘Enemy or Foe: A Conflict of Modern Politics’, Telos 72 (Summer): 187–93 ——1989, The Challenge of the Exception. An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936, Westport, CT: Greenwood Press Seitzer, Jeffrey, 1998, ‘Carl Schmitt’s Internal Critique of Liberal Constitutionalism’, in Dyzenhaus, 1998: 281–312 ——2001, Comparative History and Legal Theory: Carl Schmitt in the First German Democracy, Westport, CT: Greenwood Press Slomp, Gabriella, 2009, Carl Schmitt and the Politics of Hostility, Violence, and Terror, Basingstoke: Palgrave Macmillan Sombart, Nicolaus, 1991/1997, Die deutschen Männer und ihre Feinde: Carl Schmitt, ein deutsches Schicksal zwischen Männerbund und Matriarchats mythos, Munich: Hanser, 1991; 2nd edn, Fischer TB, Frankfurt, 1997 Strauss, Leo, 2007, ‘Notes on Carl Schmitt, The Concept of the Political’, trans. H.J. Lomax, in C. Shapiro, Kam, 2008, Carl Schmitt and the Intensification of Politics, Lanham: Rowman & Littlefield Stirk, Peter, 2003, ‘Carl Schmitt’s Enemy and the Rhetoric of Anti-Interventionism’, The European Legacy 8(1): 21–36 ——2005, Carl Schmitt, Crown Jurist of the Third Reich On Preemptive War: Military Occupation and World Empire, Lewiston, NY: Edwin Mellen Press ——2006, Twentieth-Century German Political Thought, Edinburgh: Edinburgh University Press Strathausen, Carsten, 2010, “Myth or Knowledge? Reading Carl Schmitt’s Hamlet or Hecuba, Telos, pp. 7-29 Strong, Tracy, 2006, ‘Foreword’ to Chicago University Press edition of Schmitt 1996: 1–14 Suganami, Hidemi, 2007, ‘Understanding Sovereignty through Kelsen/Schmitt’, Review of International Studies 33: 511–53 Surin, Kenneth, 2005, ‘World Ordering’, in Rasch 2005: 185–97 Toscano, Alberto, 2008, ‘Sovereign Impunity,’ New Left Review II: 50 Tregenza, Ian, 2002, ‘Leviathan as Myth: Michael Oakeshott and Carl Schmitt on Hobbes and the Critique of Rationalism’, Contemporary Political Theory 1(3) (October): 349–69 Tralau, Johan, 2010, ‘Thomas Hobbes, Carl Schmitt, and Three Conceptions of Politics’, Critical Review of International and Social and Political Philosophy 12: 261–74 Türk, Johannes, 2008, ‘The Intrusion: Carl Schmitt’s Non-Mimetic Logic of Art’ 142, Telos 142:83 Turner, Brian S., 2002, ‘Sovereignty and Emergency: Political Theology, Islam and American Conservatism’, Theory, Culture & Society 19(4): 103–19 Ulmen, Gary, 1987a, ‘American Imperialism and International Law: Carl Schmitt on the US in World Affairs’, Telos 72: 43–71

Bibliography 289 ——1987b, ‘Return of the Foe’, Telos 72: 187–93 ——1996, ‘Toward a New World Order: Introduction to Carl Schmitt’s “The Land Appropriation of a New World”’, Telos 109 ——2001, ‘The Military Significance of September 11’, Telos 121: 174–84 Ulmen, Gary, 1991, Politischer Mehrwert: Eine Studie iiber Max Weber und Carl Schmitt, Weinheim: VCH Acta humaniora Ulmen, Gary and Picone, Paul, 1990, ‘Schmitt’s Testament and the Future of Europe’, Telos 83: 21–32 Vagt, Detlev, 1990, ‘International Law in the Third Reich’, AJIL 84: 661–704 Vagts, Detlev F., 2002, ‘Carl Schmitt in Context’, CDZLR 23:2157, 2158–9 Van Laak, D., 2002, Gespräche in der Sicherheit des Schweigens. Carl Schmitt in der politischen Geistesgeschichte der frühen Bundesrepublik, Berlin: Akademie Verlag Voigt, Rudiger, 2001, Mythos Staat: Carl Schmitt’s Staatsverstdnis, Baden-Baden: Nomos ——2008, (ed.), Grossraum-Denken. Carl Schmitts Kategorie der Grossraumordnung. Stuttgart: Franz Steiner Verlag von Hayek, 1944, The Road to Serfdom, London: Routledge Watson, Janell, 2005, ‘Oil Wars, or Extra-State Conflict Beyond the Line’, in Rasch 2005: 349–57 Weigel, Sigrid, 2009, ‘The Sovereign, the Martyr and “Just War” beyond the Dilemma of Political Theology, Discussed via Carl Schmitt and Walter Benjamin’, in Globalization, Political Violence and Translation, (ed.), Esperanza Bielse and Christopher W. Hughes, London: Macmillan: 88–113 Weiler, Gershon, 1994, From Absolutism to Totalitarianism: Carl Schmitt on Thomas Hobbes, NY: Hollowbrook Pub Werner, Sombart, 1991, Die deutschen Manner und ihre Feinde: Carl Schmitt, ein deutsches Schicksal zwischen Mannerbund und Matriarchatsmythos, Munich: Hanser Wolin, Richard, 1992a, The Terms of Cultural Criticism, New York: Columbia University Press ——1992b, ‘The Conservative Revolutionary Habitus and the Aesthetics of Horror’, Political Theory 20(3): 424–47 Zarmanian, Thalin, 2006, ‘Carl Schmitt and the Problem of Legal Order: From Domestic to International’, Leiden Journal of International Law 19(1): 41–67 Zolo, Danilo, 1997, Cosmopolis: Prospects for World Government, London: Polity ——2002, Invoking Humanity: War, Law and Global Order, London: Continuum

Index

Agamben, Georgio 22, 34, 279 Anti-Semitism 162 Schmitt’s opposition to Nazi race theory 12, 13 Aravamudan, Srinivas 91, 140, 154, 162, 279 Audiences of myths as their coauthors 202-3 Authority, law as an expression of 92-113 Axtmann, Richard 82, 84, 279 Balakrishnan, Gopal 128, 234, 243, 279 Behemoth, myth of. 147, 149, 153, 154, 168, 170, 266 Bendersky Joseph 10-13, 279 Benjamin, Walter 10, 12, 16 Ben-Shai 279 Bentham, Jeremy as a pioneer of positivism 2, 57, 107, 277 Bosteels, Bruno 124, 279 Bottici, Chiara, 122, 124, 231, 140, 278 Britain 2, 61, 78, 81, 135, 153, 170, 173, 183, 185, 251, 257, 274 see also imperialism Brown, Christopher 24, 36, 83, 86, 280 Burchard, Christoph 23, 72, 77, 280

Caldwell, Peter C. 2, 54, 57, 109, 113, 280 Carty, Anthony ix, 95, 280 Catholicism 10-12, 26, 71, 122, 126, 195, 200, 220, 222, 285 Chandler, David 3, 20, 37-8, 91, 280 Civil disobedience 63-4 Colonialism 89 see also Monroe Doctrine Concrete orders 95-6, 99, 111, 271, 276 Conservativism 25 Schmitt as a conservative Hobbesian thinker and political activist 10 Constitutionalism i, 4, 29, 37, 40, 119, 127-8, 133- 143, 162-4, 209-10, 212, 218, 228, 257, 262, 268, 279, 286 See also critique of Marxism and Nazism Constitutional crisis 189 see also Prince Hamlet, sovereignty Constitutional Theory 209-10 Cosmopolitanism 2-3, 5, 20, 24, 34, 37-8 78 82, 87, 91-2, 250, 255 see also liberal/Kantian forms of 2-3 Counter-Myths see also political myth vi, 122, 128-9, 149, 236-8, 261

Index 291

Cristi, Renato 281 Critical legal studies 15, 114 Criticism of Schmitt 238 anachronistic or politically irresponsible work, i.e. Concept of the Political and Political Theology compared to Constitutional Theory and Legality and Legitimacy 264-5, 268, 273-4 conclusion, 263ff conflict between essentialist and social constructionist aspects of his analysis of myths 266-8 dogmatic-polemic discursive style 265 dogmatic refusal of explicit textual self-criticism 269-70, 275 flawed practice of immanent critique 274 immunisation of the political from moral/ethical critique 272-3 inconsistencies within his affirmation of democracy and critique of both legal formalism and “humanity” 275-7 inconsistency of general theoretical claims re “the political” but not “the mythical” 266 internal difficulties, gaps and inconsistencies 264 lack of reflection upon his own methodology 265 nationalistic dimension of his critique of imperialism? 264, 273 problems of moral relativism/ nihilism stemming from his

theory’s decisionistic dimensions 268-72 seduced by myths of behemoth and leviathan, water and land orientations as somehow elemental 266-7 selective critique of depoliticisation cf JPE 274 selective critique of persecution of minorities cf Holocaust 270 Culture, judicial 69 Dean, Mitchell 123-4, 146, 148, 153, 161, 224, 280 Decisionism 16, 23, 62-3, 67-8, 71, 76, 96, 100-102, 104-9, 114, 195, 271, 273, 275, 281 as a necessary corrective to abstract normativism but itself qualified by concrete order thinking 96-7, 102-3 decisionism within the public choice of constitutional form of governance 106-7 see also Hamlet, Sovereignty, Judicial role Demos 139, 156, 214-6, 219, 222, 224, 239, 232, 235, 262 see also Democracy, Nation Democracy, vi, 4, 11-12, 21, 23, 33, 38, 52 , 60, 77-78, 91, 122, 127-8, 131- 135-139, 156, 166, 173, 179 , 207-225, 222-6, 228-230, 232, 240, 242-44, 246, 248, 250, 252, 254, 256-58, 260, 262, 272, 274, 279-82, 285-6 and/as political myth 219, 231 as a genuine political concept 211 authoritarian democracy as opposed to liberal natural law and parliamentary approaches 216-9

292  Carl Schmitt: Law as politics, ideology and strategic myth

based on belief in citizens’ equal rights and self-government 211, 213-214, 219-20, 234-5 connection to rise of modernity and real institutional practices 211-12, 231-3 contradictions of “liberal democracy” 210-12, 231-2, 257-8 democracy vs liberalism and the contradictions of “liberal democracy” 210-12, 231-2, 257-8 direct democracy 217, 233-4 direct/popular vs. indirect parliamentary forms 137-9, 212-3, 226-9 myths and extra-rational and aesthetic legitimation and stabilisation of both democratic and nondemocratic practices 207-9, 226-7, 231-2, 260-1 need for immanent criticisms of pseudo-democracies 212 over-extension of the concept at the cost of its specificity 210 popular sovereignty 212-13, 218-9, 222, 232-3 see also nation, demos and national identity Depoliticisation v, vii, 27-31 35-6, 53, 68 71-76, 87, 120, 123-4, 156,173176, 191, 193, 234, 237, 245, 261, 270, 272, 274 chapters two and three see also politics of depoliticisation, and Hamlet 193-4 myth of total “inclusiveness” re democracy 234-5 Derrida, Jacques 15-17 Determinacy as qualified and limited in practice 42, 46, 50, 56-61

see also legal doctrine, normativism, legal certainty, welfare state measures, liberalism Dichotomies (of liberalism) 39-40, 44, 78, 203 see also voluntas/ratio, law/ politics Discretion, in legal decision-making i, v, 20, 29, 39-40, 42-46, 51, 57 60-4, 68, 71-72, 75-8, 100, 102 105, 109-10, 118, 120, 185, 191 109-11 liberal hostility to “lawless” administrative forms 43-45, 51, 61-63, 68 see also judicial role Douzinas, Costas 22-23 Dualism/dualistic vi, 37, 72-3, 84, 90, 96, 138, 155, 157-160, 162, 164, 167, 169-70, 199, 201-2, 245 see also legal positivism, legal positivism, dichotomies Dyzenhaus, David 13, 24, 77, 164-68, 281 Emergency powers 34, 98-9 and “normal situation ” 98-9, 103-4 Enlightenment as a rejection of myth in the name of modern science 4 Equal chance doctrine of liberalism and Schmitt’s critique 11-12 Existentialism 125, 193, 248, 271 Fascism vii, 72, 124, 128, 140, 165, 208-9, 236, 239, 243, 270 see also dangerous political myths, Mussolini, nationalism. Fitzpatrick, Peter 2, 281 Foe 17, 81, 84, 119, 163, 217, 286-7

Index 293

see also friend/enemy distinction, politics, demonisation, ideologies of humanity Formalism, legal 44-5, 52, 56-7, 75, 78, 101-2, 108, 112, 115-16, 268, 270, 274, 276 see also normativism, Kelsen Fraenkel, Ernst 10 Freedom as ideologically abused notion 73 Freedom of conscience, Hobbes and as a fatal concession to liberal individualism Friend/enemy distinction 12-3, 21, 32-3, 58, 75-6, 115, 119, 129, 145, 149, 156, 204, 224, 256-58, 268, 275 and essence of “the political” 30-32 see also politics, foe Geopolitics 18-19, 27, 87-8, 91, 116, 124, 271-2, 284 Gerber, Carl von as a pioneer of legal positivism 2 Ghaleigh, Navraj 2, 281 Goering, Hermann’s defence of Schmitt against SS attack 13 Gottfried, Paul 140, 150-1, 153-4, 170, 180, 281 Gourgouris, G. 123-24, 239, 280 Groh, R. 124, 281 Habermas, Jurgen 17-18, 28, 281 Hamlet or Hercuba: The Intrusion of Time into the Play vi, vii, 16-17, 122-3, 127, 132, Chapter six, 256, 260, 262, 266, 280, 283, 286 Hamlet as a corrective mythic symbol compared to Leviathan 173-4

Hamlet as high-ranking political myth and religious schism 176, 184-185 Hamlet as instructive case study for the study of myth 174-176 its implications for crises in sovereignty 185-186 Hamlet-James couplet 183-184, 203 sovereignty as decisionist 190-191 see also Prince Hamlet Heidegger, Martin 14-17, 266 Hell, Julia 26, 124, 281 Hobbes, Thomas. vi, 2, 11-12, 15, 26, 29, 46, 63-4, 77, 89, 107, 119-120, 122, 127, 132, 140-171 chapter five, 174, 177, 186, 191, 193 195, 197, 241, 264, 266, 269, 278 failure to appreciate implications of leviathan myth 144-5 Humanity i, vi, viii, 1-4, 19-20, 23-4, 28-30 33-8, 80, 80-92, 120, 210, 219, 225, 230, 234-5, 240, 245-6, 248, 252, 258, 262, 273 see also ideologies of, and crimes against Humanitarian intervention i, 2-3, 24, 36, 83-4, 86, 272 Human rights fundamentalism i, 2-3, 18, 24, 32-3, 35-6, 38, 51, 55-6, 72, 78-9, 84-87, 137, 116, 221, 234, 244, 250-1, 254, 269, 272, 276, 283 Husserl, Edmund 12, 266 see also phenomenology Ideology - Schmitt’s interpretation of. i, iii, v, 1-2, 4, 7, 10-16, 18-24, 26-121, 123, 129, 135, 137, 139, 141, 143, 145, 147, 149, 151, 153, 155, 157, 159, 163, 165, 167, 169, 170-71, 175, 177, 179, 181, 183, 185,

294  Carl Schmitt: Law as politics, ideology and strategic myth

187, 189, 193-5, 197, 201, 203, 205, 207, 209, 211, 213, 217, 219, 221, 223, 225. see also depoliticisation Ideologies of humanity 19, 82-92, 234-5 contradictions of 87-8 as counterproductive 82-4 as cover for economic globalisation/liberalisation 91-2 as demonisation of political enemies 82-4, 92 as depoliticising practices 234-5 as disguised political devices of imperialism 82-6, 90-1, 216-7 and “just war” rhetoric 91 lack of empirical realism concerning pluralism 89-92, 85-6 and legitimation strategies and moralistic depoliticisations 87-8 as over-generalisation of particular interests 85-6 as pseudo-progressive enlightenment 88-90 relevance to criminalisation 83, 89, 91-2 as social control mechanisms 84-7 and unilateral humanitarian intervention 86 Ideologies of legality 37-41 Ideological use of legal language 58-61 Immanent criticism 27 see also parliamentarism, methodology Imperialism 19-23, 58, 79-81 see also United States, ideologies of humanity

Individualism 90-1, as counterpole to an equally unmediated “hunanity” 90-1 as liberal ideological abstraction 90-1 Interpretative nature of the legal process 69-70, 100-104 vs. mechanical/slot machine models Jews 12 Judicial role, declarative or creative? 46, 65-72, 104-9 see also determinacy, decisionism Kantianism 37-8 See also cosmopolitanism, dichotomies, universalism, formalism Kahn, Victoria 140-1, 156, 162, 165, 168, 174, 180, 182, 237, 242, 282 Kalyvas, Andreas 209, 211, 218, 228, 231, 282 Kaufmann, M. 12, 30, 282 Kelsen, Hans 1-2, 13, 24-5, 28, 40-41, 52-7, 62, 65, 68-9, 72-7, 79, 93-94, 96, 98-118, 120, 253, 268, 270, 272-3, 275-77, 279-80, 282 see also Kelsenian positivism, legal formalism, normativism and legal positivism Kennedy, Ellen 10, 16, 124, 224, 282 King James 175, 183, 187, 189-90, 201, 203-4 see also Hamlet-James couplet Kircheimer, Otto 12 Klickovic, Sava 124 Koenen, Andreas 1, 10-11, 282 Koskenniemi, Martti viii, 58-59, 282

Index 295

Laband, Paul and positivism 2 Law and “concrete orders” of society 94-5 Law as authority, interpretation and power 92-119 Law vs. politics dichotomy 35-6, 43, 53, 68, 74 Law as science, scientific discipline? 65 Schmitt’s contextual/ interdisciplinary view vs. both lawyers’ law and normativist approach 93-95, 99, 103-4 understandings of law as tied to specific myths 258-9 Law/fact distinction 47-8, 103-4, 107-9 Law general rules/norms cf ad hoc administrative measures 45 Law in action, as vital contextual element of law 105-6, 109-10 its exclusion by normativism and formalism 40, 44, 52-4 Law in books 40, 52-3, 109-10 see also normativism and the interpretative nature of legal process Legality 42-43 see also liberal ideologies, and legitimacy Legal certainty 48-50, 99-100 see also determinacy, judicial role Legal doctrine as but one aspect of law 98-9, 101-2 as an allegedly closed system of rules 42-45 see also determinacy, rule of law belief Legal formalism see also normativism 40, 44 Legal judgement 67-8 extra-normative criteria for validity 98-9

see also decisionism, discretion, judicial role cultural relativism Legal positivism 2, 23-4, 47, 55, 93-5 see positivism, Hans Kelsen, formalism, normativism Legal meta-rules of precedent, statutory interpretation, 45-6, 66 and their limits as de facto guides or predictive factors 103-4 also judicial role, discretion Leviathan, contrasting meanings of, vi, 63, 77, 122, 127, 132, 139, 140-174, 193, 197, 203, 236, 241, 266, 278, 283-6 Leviathan, symbolic myth of 19th century demise of leviathan’s cultural reception 155-157 contrasting meanings of leviathan 145-6 counterproductive deployment of this mythic symbol 148-55, 164-169 failure of leviathan? 146-148 Hobbes’ affirmation of a right to private conscience and private/public dichotomy as Hobbes’ contribution to this collapse 157-164 leviathan symbol as an instructive case study 141-2 The lessons of Hobbes’ failed deployment of leviathan 169-171 Levinson, Brett 16, 24, 282 Leyte, Arturo 125, 282 Liberalism 37-8 Difficulties and contradictions with its theoretical foundations 2-3, 38-9, 51ff, 55, 76-8 exaggerated view of legal determinacy 56-61

296  Carl Schmitt: Law as politics, ideology and strategic myth

interpretative naiveté 63-64 lack of historical analysis 53-4 narrow definition of law as a stand alone subject 40, 50, 51 reliance upon problematic dichotomies 39-40 see also liberal-positivism; cosmopolitanism, rule of law, negative rights, and individualism Liberal constitutionalism and legislative state 40ff Liberal parliamentary democracy 136ff see also Hobbes Lukacs, Georg 14 Lutz, Berthold 278 Machiavelli as mythic figure 236-7 Marxism, Schmitt’s critique vii, 15-16, 36, 124, 140, 210, 225-6, 236, 243-244, see also Sorel and myth of the general strike McCormick, John. P 92-4, 98-9, 103-5, 109 110, 113, 116, 118, 123, 125-6, 131, 140, 159, 281 Meier, Heinrich 10, 123, 283 Methodology, Schmitt’s interdisciplinarity 12, 27, 54 Modernity 2, 12 and the alleged displacement of myth by scientific enlightenment Monroe Doctrine 58 see also US imperialism, spatially ground vs. universalistic orientations Mouffe, Chantal 18, 21-2, 209, 273, 279-80, 283 Müller, Jan 22, 123, 283-4 Mussolini, Benito 128, 140, 208-9, 236-37, 239-40, 270 Myth generally 122-3

against aesthetic reductionist approaches to 179-80, 204-6 alternative readings 125-6 and particular ethos 177-179, 256-9 as cultural form/representation, legendary fables introduction, 176-7, 192-3 authentic vs. dangerous (antidemocratic) 197, 209-10, 236ff, 260-1 dangers of over-extending the concept by erasing the myth/non-myth distinction 203-5, 260-1 element of legal knowledge 143-4, 236ff, 261-2 intrusion of empirical history 127-8, 179-183, 194, 202-3, 260-1 legendary 257-8 living vs. dead, 197 myth and taboo 260-1 myth as neither exclusively subjective or objective 198-9, 202-4 myth as related to but distinct from rhetoric and ideology introduction, 208-9, 261-2 need for a critical social science approach towards 233-4, 236-7 political 129-132, 196, 258-9 236ff problems with Schmitt’s account 209-10 reliance upon readership’s reinterpretative work 197-202 Schmitt’s general claims and their implications 127-8, 200-4, 259, 261-3 scholarly importance of studying myth as an

Index 297

the role of myths in rendering the nation visible to itself 207-8, 230-32 see also counter-myths, Leviathan Nation, belonging to 215-6 and integral connection to democracy 223 mythic aspects to “one nation, our nation” 223, 256-7 nationalistic-fascistic myths of “great nation of ours” 237-8 National identity 215-6, 230-2 mythic/imaginary aspects of 225-236 and cultural authority of leaders personifying nation 226-8, 259-60 National security 33 Natural law foundations of liberalism 55 see also human rights Nazism, Schmitt’s complex relationship with incompatibility of Schmitt’s main works with Nazi race theory 10-17, 165, 118, 228 Neumann, Franz 10, 12, 14 Neumann, Volker 76, 284 Neutralisation 27, 31, 35, 71, 74, 90, 123, 125, 155-6, 171, 193, 237, 245, 270, 272, 274 see also ideology, depoliticisation Nietzsche 15 Nihilism 26 see also cultural relativism, criticisms of Schmitt Norms, legal 2, 41 normative dimensions of Schmittian theory 237 see also criticisms of Schmitt

Normativist/normativism, nature and limitations of 2, 41, 47-8, 62, 93- 98-103, 107-8 see also Kelsen, legal doctrine, legal judgement and legal positivism O’Beebee, Thomas 124, 284 Odysseos, Louiza 19, 279, 284 Palaver, Wolfgang 140, 284 Pan, David ix, 15, 122-4, 173, 191-2, 207, 209, 212, 226, 247, 250, 253-5, 258-9, 284 Parliamentarism 41 government by discussion 129-30, 134-140 People the, democratic myth of “we the people” 215-7, 232-5 see also myth of one nation Petito, Fabio 19, 279, 284 Phenomenology/ phenomenological method as Schmitt’s methodology 111, 203, 212-3 see also Husserl Pluralism/pluriverse 87-8 as affirmation of difference, spatial differentiation, national sovereignty, and particularism see also universalism Politics, and friend/enemy distinction 30-32, 258-9 see also politics of law 30-33 depoliticisation, 34-6 political will-formation, political theatre political theology, law vs. politics dichotomy 78 Positivism, contradictions with 57, see also liberal positivism, liberal cosmopolitanism Power, law as an expression of 74

298  Carl Schmitt: Law as politics, ideology and strategic myth

Prince Hamlet 132, 172, 174, 179, 183, 185, 188, 191-2, 195-97, 200, 203, see also sovereignty, decisionism constitutional crisis Puchalska, Bogusia ix, 284 Rasch, William 18-19, 59-61, 68, 84, 89-90, 100-101, 104, 106, 113, 234, 251, 254, 278, 284-285 Ratio vs voluntas dualism 39, 44 see also decisionism, dichotomies, authority, power. Rawls, John 17, 285 Relativism, cultural 69-70, 111-13 see also judicial role and criteria of valid legal judgement Rights, inalienable liberal-negative rights against the state – Schmitt’s critique 3 Rosenberg (Hitler’s Deputy) critique of Schmitt 12 Rule of law as liberal belief 42, 45-7, 57 Rust and Lupton 9, 16, 177, 285 see also determinacy, normativism Salter, Michael i, iii, iv, 11, 14, 17, 25, 27, 100-01, 134, 265, 285 Sartre, Jean Paul 14 Scheuerman, William 12, 15-20, 59-60, 79, 82, 114, 117, 125, 131, 209, 212, 264, 285 Schleicher, General 11, 13 Science, Schmittian and Weberian interpretive 2-3, 36-7 social science vs. positivistic models of science; formal vs material legal science scientific enlightenment from myth 4-5

Schmitt, Carl: biography 8-16 as a pioneer of realist school 19 conflicting approaches to 9-10 contemporary relevance, 18-25 controversial post 1985 renaissance 9-11, 16 hermeneutic vs biographical approaches to 9, 23-5, 27 interdisciplinarity 27 Nazism (criticism of and later collaboration with) 10-11 sympathetic to cognitive radicalism 26 Seitzer, Jeffrey 26-7, 123, 137, 211, 243, 288 Slomp, Gabriella 271-2, 288 Sombart, Nicolaus 124, 288 Sorel, George vi, 15, 26, 122, 129-134, 140, 209, 236, 238-40, 243, 252, 262, 270 see also political myths, Marxism Sovereignty 4, 23-4, 26, 30-1, 37-8, 40-2, 51-3, 61-2, 73, 76-81, 87-94, 96-97, 105, 123, 127, 133, 137, 140-41, 147, 150, 153, 155-7, 163, 170, 173-4, 177, 185-6, 188-189, 190-3, 211-12, 218, 228, 231, 234, 236, 261, 265-70 see also Hamlet, democracy as popular sovereignty State, the 32, 73 and administrative measures 45, 50, 94-5 lack of inspirational visibility requiring mythic supplementation of a symbolic figurehead to combat alienation 259-60 liberal-legislative model as unity of norms 42, 72-3 mythic elements of cultural belonging 259-60

Index 299

welfare state discretionary justice 51, see also nation State of exception 21-23, 34. Strauss, Leo 10, 12, 281-2, 288 Stirk, Peter ix, 1, 18, 86, 248-9, 288 Surin, Kenneth 11, 21-2, 158, 167, 286 Terrorism 19-21 Turner, Brian S ix, 288 Tregenza, Ian 124, 140, 288 Ulmen, Gary 24, 58, 80-81, 89, 110, 116, 118, 146, 273, 283, 288-9 United States 21-2, 35, 58, 61, 79, 205, 248-9, 251, 255, see also imperialism, Monroe Doctrine

Universalism 79-81 see also ideology of humanity, cosmopolitanism Vagt, Detlev 162, 289 Voigt, Rudiger 123, 282, 289 War 81 Weber, Max 11-12, 36, 110, 116, 118-9 Weigel, Sigrid 86-91, 289 Werner, Sombart 279, 289 Wolin, Richard 125, 131, 248, 264, 281, 287 Zarmanian, Thalin 9, 13, 289 Zolo, Danilo 2-3, 5, 20, 23-4, 29, 38, 289