The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt Between 1921 and 1936 0313272298, 9780313272295

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THE CHALLENGE OF THE EXCEPTION

Recent Titles in Contributions in Political Science Dilemmas o f Social Democracy: T he Spanish Socialist W orkers Party in the 1980s Donald Share A Staff for the President: T he Executive Office, 1921-1952 Alfred D. Sander H ungary and the USSR, 1956-1988: R adar’s Political Leadership Andrew Felkay Trotsky and Djilas: Critics o f Communist Bureaucracy Michael M. Lustig Isolation and Paradox: Defining the "Public” in M odern Political Analysis Frank Louis Rusciano T he President and Civil Rights Policy: Leadership and Change Steven A. Shull Nominating Presidents: An Evaluation o f Voters and Prim aries John G. Geer A Right to Bear Arms: State and Federal Bills o f Rights and Constitutional G uarantees Stephen P. Holbrook T he Politics o f Economic Adjustm ent: Pluralism, Corporatism , and Privatization Richard E. Foglesong and Joel D. Wolfe, editors Policy through Im pact Assessment: Institutionalized Analysis as a Policy Strategy Robert V. Bartlett, editor Behind the U prising: Israelis, Jordanians, and Palestinians Yossi Melman and Dan Raviv From Feudalism to Capitalism: M arxian Theories o f Class Struggle and Social Change Claudio J . Katz

THE CHALLENGE OF THE EXCEPTION An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936

,

Second Edition with a New Introduction

GEORGE SCHWAB

CONTRIBUTIONS IN POLITICAL SCIENCE, NUMBER 248

GREENW OOD PRESS New Y ork W estport, C onnecticut L ondon

Library of Congress Cataloging-in-Publication Data Schwab, George. The challenge of the exception : an introduction to the political ideas of Carl Schmitt between 1921 and 1936 / George Schwab.—2nd ed., with a new introd. p. cm.—(Contributions in political science, ISSN 0147-1066 ; no. 248) Includes bibliographical references. ISBN 0-313-27229-8 (lib. bdg. : alk. paper) 1. Schmitt, Carl, 1888- . 2. State, The—History—20th century. 3. Political science—Germany—History—20th century. 4. Germany— Politics and government—1918-1933. 5. Germany—Politics and government—1933-1945. I. Tide. II. Series. JC263.S34S35 1989 320'.092—dc20 89-17164 Briush Library Cataloguing in Publicadon Data is available. Copyright C 1970, 1989 by Duncker & Humblot The first edition published by Duncker & Humblot, Berlin. All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent o f the publisher. Library of Congress Catalog Card Number: 89-17164 ISBN: 0-313-27229-8 ISSN: 0147-1066 First published in 1989 Greenwood Press, Inc. 88 Post Road West, Westport, Connecdcut 06881 Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the Nadonal Information Standards Organizadon (Z39.48-1984). 10 9 8 7 6 5 4 3 2 1

Introduction to the Second Edition The second edition of The Challenge o f the Exception: A n Introduction to the Political Ideas o f Carl Schm itt between 1921 and 1936 remains un­ changed. A fter eighteen years one can thus judge the extent to which this study, which appeared in English in 1970, in Japanese in 1980, and in Italian in 1986, has w ithstood the test of time. W ere one to trace this study even further back, one w ould learn that it was presented (w ith m inor changes) in 1962 as a dissertation in fulfillm ent of the last requirem ent for the degree of doctor of philosophy at Colum bia U niversity. H ad it not been for the fact that the examiners voted to reject the Schmitt study and thus believed that they were consigning it to the ash bin of history on the ground that I had failed to understand Schmitt, in all likelihood it w ould have been con­ demned to oblivion, not an uncommon occurrence w ith dissertations'. But precisely because the w ork was rejected and because I was convinced of the correctness of my understanding of the topic, I decided to persist, but postponed publishing the w ork until I had w ritten another dissertation (on a different topic) and passed the defense successfully. The difficulty I encountered at Colum bia was prim arily due to the fact that Schm itt’s character had become fused w ith his w ork, and an analysis of his ideas was thus nearly impossible. But if the intellectually-tainted atm osphere that prevailed at Colum bia and elsewhere in the U nited States is no longer an obstacle to serious w ork, there are other dimensions that make the study of his w ork difficult. Schmitt, the trained jurist, operates prim arily in the legal domain, especially constitutional theory and consti­ tutional law, and often the com ponents of his political theory have to be extrapolated from his legal writings. Because intellectual historians, as well as other scholars, usually have no legal training o r display much interest in legal studies, their conclusions about Schmitt’s w ork have often been faulty, thus clouding a complex subject. Still another factor that constitutes a drag

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to Schmitt studies is the way in which the leaders of political movements and intensely-inspired ideologues often, under the guise of scholarship, have appropriated and diffused his ideas. The m ore than thirty years that I have spent studying the ideas of Schmitt have led me to conclude that three phases are discernible in the progress of Schmitt studies in the English-speaking w orld. From the tim e of H itler's accession to pow er until about the early 1970*s the mere m ention of Schm itt’s name usually aroused such hostility that no objective discussion was pos­ sible. The decade of the 1970's can be characterized as years in w hich firm foundations were laid for Schmitt studies2, and since 1980, here and else­ where, there has been a near explosion of Schmitt studies: on Schmitt him self3, on his ideas4, on how they relate to the ideas of other thinkers3, and on the influence that his ideas have had on younger scholars and thinkers6. The explosion7 has been fueled by the num ber of his w orks that have appeared in translation*. A lthough it is not surprising that legal scholars, political scientists, and historians should concern themselves w ith many of Schm itt's ideas, the reasons w hy and how they have been appropriated by the leaders of political movements and ideologues are not that obvious. As far as the W eimar republic is concerned, the political right, for example, began to take note of Schmitt tow ard the end of the republican period. H is conservative lean­ ings, his trenchant analysis of the state, politics, and sovereignty, inextricably linking the three and favoring strong state pow er, coupled w ith his intel­ lectually incisive critique of the spirit and practice of parliam entarism , en­ deared him to the right9. C onsistent, however, w ith the ideological approach of political extremism, his thoughts were truncated and m anipulated. Says Joseph Bendersky: In the hands of the editors of Die Tat, Hans Zehrer and H orst Grüneberg, Schmitt's ideas became clay, molded or disregarded to suit their own arguments, and his scholarship became a credible source to cite in defense of a particular point. Rarely were Schmitt's writings explained fully. In their relendess assaults on the republic, these authors used a simplistic interpretation of Schmitt’s book on parliamentarism to prove that parliamentary government is ’at the point of death.’ . . . As a result, Schmitt's writings, which had long been praised for their scholarly value, were turned into political propaganda; carefully formulated con­ cepts became catchy slogans10.

Inasmuch as the goals, if not the values, of the political right often converge w ith those of the political left, it is not surprising that the left too has turned to Schm itt11. The attention that is being focused on the intellectual roots of

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the Frankfurt School, for example, and on some of the individuals associated w ith that school, has produced arresting reading. Ellen Kennedy argues that to the extent to w hich critical theory is a construct of political theory, the Frankfurt School is heavily indebted to Schm itt’s critique of liberalism. Among other examples, she cites the school’s debt to him by rem inding us that Schm itt’s analyses of the “ contradictions between liberalism and de­ m ocracy,” according to w hich he concluded that liberalism negates democ­ racy and democracy, liberalism, became basic to the Frankfurt School. Kennedy says that Schmitt “ provided the radical critics of liberal democracy im portant principles and concepts [w ith which] to analyze the bourgeois Rechtsstaat and provided a basis to analyze the problem of political pow er . . . w hich could then be utilized for an outline of a theory of the state of the left” *2. M oreover, given the political left’s traditional failure to offer a theory of the su te because of its refusal to reckon w ith historical realities, especially the su te ’s unwillingness to w ither away, the left lacked the ability to analyze it13. In view of the centrality accorded to the su te in Schm itt’s w orks, it is understandable w hy the left was draw n to his rich basket of analytical tools w ith w hich to realistically examine the su te , politics, and sovereignty14. The thoughtful, English, m oderate-left scholar Paul H irst is a m ost recent example. A fter having searched the range of M arxist thought for answers about how best to construct a w orking constitution for an industriallyadvanced W estern dem ocratic socialist su te, one that w ould acknowledge the realities of su te pow er and how such pow er could be reconciled w ith a societal order based on democratic socialist values, he rejected answers that were, in fact, nonanswers provided by M arxist thinkers. H e turned to Schmitt instead. Though often critical of him , H irst was impressed by Schm itt’s efforts to confront the exception, that is, to subject it to legal considerations. H e said Schm itt “ addresses the problem s of anugonistic pluralism , emergency pow ers and constitutional dicutorship now here avail­ able in the liberal and M arxist traditions” 15. Though H irst shares Schm itt’s conclusion that a constitutional order m ust make provisions for the excep­ tion, he is considerably m ore m oderate in his approach than Schm itt. This can be explained perhaps by the relatively peaceful evolution of England’s constitutional history. W hatever the reason, H irst argues that in order to ensure the preservation of pluralism against the encroachments of the su te , a su te of exception m ust not be perm itted to be determ ined by only one instance. A ccording to him , to declare such a su te , “ it w ould be necessary not m erely for a represenutive assembly to approve it, but also, say, a constitutional court. Such a ‘su te ’ w ould need to be precisely specified in

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term s of the conditions under w hich it was appropriate, of the rights to be suspended and the capacities of state agencies that were thereby enhanced” 16. Transferred to the W eimar scene, H irst’s proposal w ould certainly have been considered utopian by Schmitt.

Inasmuch as Schm itt's concerns focused on the m odem sovereign Euro­ pean su te and on issues revolving around the su te, a state-centered political theory can be extrapolated from his legal and legally-related w orks, espe­ cially since the late 1910's. To Schmitt the “ su te is the political unit of a people” 17. Given Schm itt's anthropological understanding of the nature of man as basically dangerous, the raison d ’etre of the su te , according to him , is to curb his aggressive nature by ensuring an orderly, peaceful, and su b ie societal order in the territorially-enclosed configuration called the su te. This, in his view, should be attained by keeping the society depoliticized. W hy? H e argued that political tensions that accumulate w ithin society have the potential o f be­ coming so intense that conflict becomes a real possibility. Looking at this question in the context of Europe's political history since the sixteenth and seventeenth centuries, he maintained that as soon as the su te 's m onopoly on politics was shattered by the emergence of dom estic forces that began to question and even challenge the su te ’s m onopoly to decide on the enemy, one was forced to differentiate “ politics” from “ political” 1*. A ccordingly, he defined both in term s of a criterion; namely, that of the distinction between friend and enemy. W hereas prior to the politicization of society it was the su te that exercised the right to distinguish between friend and enemy in the international arena, w ith the politicization of society, the su te , though still sufficiently pow erful, could at any tim e be forced to do likewise in this dom ain as well. Said Schmitt: “The endeavor of a . . . su te consists. . . in assurinng total peace w ithin the su te and its territory ___ The su te as the decisive political entity possesses. . . enorm ous p o w er. . . ” 19, that is, “ of deciding in a concrete situation upon the enemy and the ability to fight him w ith the pow er emanating from the entity”20. Because the su te is no abstraction, but a hum an construct, Schm itt inex­ tricably linked it w ith a sovereign authority whose prim ary function is to guard the state’s safety. To this end it is the guardian w ho is endow ed w ith the authority to decide w hether the state’s safety is challenged and to act accordingly. H ence, Schm itt's celebrated definition that “ sovereign is he w ho decides on the exception”21. Though the su te precedes the constitution in Schm itt’s configuration, the latter provides the fram ew ork w ithin which

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sovereign authority operates w ith several critical exceptions: Schm itt argued that no constitution can ever precisely circum scribe the situation, condition, or m om ent propelling the sovereign to declare an exception, nor can a constitution precisely prescribe the measures to be undertaken during an exception to restore order. Thus, in addition to endowing the sovereign authority w ith the m onopoly to decide on the exception and on w hat had to be done to eliminate it, Schm itt logically concluded that because the exception is the antithesis of the norm , sovereign is also he “ w ho definitively decides w hether [the] norm al situation actually exists“22. Because of the sovereign's independence from , and yet dependence on, the constitution, his rule during an exception can be characterized as w hat may appear to be a contradiction in term s, namely, constitutional dictatorship. W hen Schmitt endowed the decisionist elem ent in his sovereign authority in the early years of W eimar, he had in mind prim arily the precarious predicam ent of the W eimar state and constitution. As is well know n, w hat he endeavored to do in this situation was to provide answers to concrete problem s facing the republic; in particular, on how best to strengthen the state in the face of the politically-antagonistic and centrifugal forces that plagued it. In short, although Schmitt acknowledged the interdependence of the state and the constitution, he interpreted the latter in a m anner that w ould have strengthened the form er. This need not suggest, however, that Schmitt w ould not have welcomed W eimar as a genuine state that contained a genuine society w ithin w hich political parties that genuinely accepted the constitutional order w ould thrive; that is, parties that openly com peted for pow er and once in pow er did not close the door and deny other parties w hat Schmitt (later in 1932) called an equal chance to attain pow er23. Basically skeptical of the viability of the W eimar constitution and hence of the W eimar state to survive in the face of onslaughts by a host of political parties and movements that ranged from outright hostility to lukewarm acceptance, Schmitt w ent beyond m erely interpreting the constitution to strengthen the W eimar state by opting for constitutional revisions sometime in the future, revisions that w ould have addressed his fears. Though this topic is treated in the main part of the study, including his discussions about w hy he thought the constitution contained contradictions and flaws that needed to be harm onized, there are features in his treatm ent that need to be accented here. A surprising feature that emerges as a by-product of a m ajor constitutional thrust in Schm itt's endeavor to overcome the divisiveness o f W eim ar, is a reserve that he began to display tow ard his decisionism . W hat perhaps trou-

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bled him was the possibility that however much a dictatorship may be circumscribed constitutionally, such rule can lead to the abuse of pow er and hence to the likelihood of social instability. This lim itation came about as a result of Schm itt’s postulating a society in which there w ould be tw o sources of legitimacy: in addition to the directly-elected sovereign there would be one based on deeply embedded institutions o r concrete orders24. The concrete-order system that he envisioned and began to sketch tow ard the end of the republican period w ould have been rooted in, and developed largely according to, interests that included, for example, one embracing the agricultural dom ain, one consisting of professional civil servants, an order embracing the armed forces, and so on2S. Each order, according to Schmitt, w ould be encouraged to develop a legal existence that reflected its particular institutional interest, and individuals in this societal configuration would be expected to realize themselves in the context of the order to which an individual naturally belonged26. Rid of W eimar’s fractious parliam ent, the tw o legitimate pillars of society, Schm itt thought, w ould engage in a harm onious interplay, an interplay that w ould obviate the need of the sov­ ereign to encroach on the self-regulating concrete orders27. In the m idst of new crises that gripped W eimar, Schmitt ruled out con­ stitutional revisions and implored President H indenburg to take full advan­ tage of A rticle 48 of the constitution to restore order, peace, and stability — preconditions for constitutional revisions2*. H e continued to embellish the nature of the su te that he envisioned. Severely disappointed by the failure of the sovereign authority to rees­ tablish order, he characterized the W eimar su te as weak, indecisive, and emasculated and attributed those deficiencies to the politicization of society, among other reasons. Such a su te , in his view, was a “ quantiutive total su te ”29 insofar as it quantiutively immersed itself in societal affairs, even becoming submerged by such affairs that culm inate in the blurring of the distinction between the su te and society. C onsistent w ith his com m itm ent to law and order, Schm itt’s answer to the “ quantiutive total su te ” was the “ qualiutive total s u te ,” one sufficiently pow erful to reaffirm its m onopoly over politics w ith all that this im plied, especially the ability to distinguish friend from enemy and act in accordance w ith that distinction as well as differentiate between the su te and society. To keep society dépoliticized, Schmitt, though he did not advocate thought control in the waning years of W eimar, did fear the consequences of w hat is now know n as media politics. H ence, he insisted that no su te, how ever liberal, could afford to leave the emerging technical means, namely, radio and film , capable o f influencing the masses to just anyone30.

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As is well know n, soon after H itler’s accession to pow er, Schmitt decided to participate in the new venture. In fact, he became very active, endeavoring to forge a constitutional order for the new system that he hoped w ould be acceptable even though it reflected his notions of a qualitative total state and of a depoliticized society based on concrete orders. H e was initially con­ vinced that on the basis of his reputation and in view of the fact that there was a constitutional void that needed to be filled, the N azis w ould be foolish not to avail themselves of his abilities. Among things that Schmitt did not realize then was the significance that the new N azi system attached to the idea of continuity w ith W eimar and, on the other hand, the significance it attached to the idea and the reality of the N ational Socialist party o r move­ m ent dom inating the state. D espite the fact that Schmitt was so com m itted to his notion of the prim acy of the su te that he continued to believe in the validity of his analysis, he began to accommodate himself to the new thinking by sprinkling his w ritings w ith ideas propagated by the N azis. H ow ever tangentially N azi ideas are to the main thrust of his thinking, if the remarks that he injected in his w orks, such as dem oting the su te by characterizing it as “ an organ of the Führer of the m ovem ent,” reopening the gate to the politicization of society by echoing N azi thinking that the totality m ust be perm eated by the highly ideologized N ational Socialist thinking11, and su tin g that the ideologically highly charged SS and SA could be integrated into the societal dom ain as concrete orders32, are to be taken at face value, then, indeed, one can con­ clude that Schmitt left his vision of the su te in shambles. T hat this was not the last w ord is attested by the fact that before the decade was out, Schmitt began to anticipate the demise of the Third Reich33. Because N azi Germ any failed to become the qualiutive authoritarian su te that Schmitt had espoused, and was instead turning into a quantiutive, totalitarian, one-party su te, he considered the entity that was rapidly emerging as containing the seeds of its own destruction34.

N otes 1 For a brief discussion of what transpired during the defense of the dissertation, see George Schwab, “ Carl Schmitt: Through a Glass D arkly,” Eclectica, 17, nos. 71-72 (1988), pp. 77-82. 2 See George Schwab, “Progress of Schmitt Studies in the English-Speaking W orld,” Complexio Oppositorum: Über Carl Schmitt (Edited by Helmut Quaritsch; Berlin: Duncker & Humblot, 1988), pp. 448-450, passim. 1 See Joseph W. Bendersky’s political biography titled Carl Schmitt: Theorist fo r the Reich (Princeton: Princeton University Press, 1983); Piet Tommissen, “ Bausteine

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zu einer Wissenschaftlichen Biographie (Periode: 1888-1933),” Complexio Oppositorum, op. d t., pp. 71-100; Emst Rudolf Huber, “Carl Schmitt in der Reichskrise der Weimarer Endzeit,” Ibid., pp. 33-50; George Schwab, “Carl Schmitt: Political Opportunist?” Intellect, 103, no. 2363 (February 1975), pp. 334-337. 4 Here it is possible to mention only a few recent endeavors: Giovanni Sartori, ’T he Essence of the Political in Carl Schmitt,” Journal o f Theoretical Politics, 1, no. 1 (January 1989); Alexander Demandt, “Staatsform und Feindbild bei Carl Schmitt,” Der Staat, 27, no. 1 (1988), pp. 23-32; Emst-Wolfgang Böckenförde, “Der Begriff des Politischen als Schlüssel zum staatsrechtlichen Werk Carl Schmitts,” Complexio Oppositorum, op. d t., pp. 283-299; Christian Meier, “Zu Carl Schmitts Begriffsbildung — Das Politische und der Nomos,” Ibid., pp. 537-556; Joseph Kaiser, “ Konkretes Ordnungsdenken,” Ibid., pp. 319-331; Julien Freund, “Der Partisan oder der kriegerische Friede,” Ibid., pp. 387-391; Jean-Louis Feuerbach, “ La theorie du Grossraum chez Carl Schmitt,” Ibid., pp. 401-418. ’ The relationship with Hobbes has been particularly stressed by, among others, Leo Strauss (“Comments on Carl Schmitt's Der Begriff des Politischen” [1932] in Carl Schmitt, The Concept o f the Political, [Translation, Introduction, and Notes by George Schwab; New Brunswick, N .J.: Rutgers University Press, 1976], pp. 81-105), Helmut Rumpf (Carl Schmitt und Thomas Hobbes — Ideelle Beziehungen und aktstelle Bedeutung m it einer Abhandlung über: Die Frühschriften Carl Schmitts [Berlin: Duncker 8c Humblot, 1972]), and Heinrich Meier (CarlSchmitt, Leo Strauss ttnd “Der Begriff des Politischen“: Zu einem Dialog unter Abwesenden [Stuttgart: J. B. Metzlersche Verlagsbuchhandlung, 1988], especially pp. 19-96, 131-135). O n Max Weber and Carl Schmitt, see G. L. Ulmen, “Politische Theologie und politische Ökonomie — Uber Carl Schmitt und Max W eber," Complexio Oppositorum, op. d t., pp. 341-365. With regard to Schmitt's influence on F. A. von Hayek, see F. R. Cristi, “Hayek and Schmitt on the Rule of Law,” Canadian Journal o f Political Science, 17, no. 3 (September 1984), pp. 521-535. 4 Names that come to mind immediately include Reinhart Koselleck (see Keith Tribe’s introduction to Koselleck’s Futures Past: On the Semantics o f Historical Time [Translated by Keith Tribe; Cambridge: The MIT Press, 1985], pp. viii-xv), ErnstWolfgang Böckenförde, Julien Freund, Paul H irst, and Gianfranco Miglio. 7 An inkling on the proliferation of Schmitt studies worldwide can be gathered from the following recendy published works by, among others, Masanori Shiyake, “Zur Lage der Carl Schmitt-Forschung in Japan,” Complexio Oppositorum, op. d t., pp. 491-502; George Schwab, “Progress of Schmitt Studies in the English-Speaking W orld,” Ibid., pp. 447-459; Bongkun Kal, “ Carl Schmitts Einfluss auf das korean­ ische Verfassungsleben,” ibid., especially pp. 505-507; David J. Levy, “The Rele­ vance of Carl Schmitt,” The World and I (March 1987), pp. 619-632; Manfred Baldus, “Carl Schmitt im Hexagon: Zur Schmitt-Rezeption in Frankreich,” Der Staat, 26 no. 4 (1987), pp. 566-586; Michelle Nicoletd’s review of “ Carl Schmitt nella Stampa Periodica Italiana (1973-1986)” in Telos, no. 72 (Summer 1987), pp. 217-224; Ellen Kennedy, “Carl Schmitt in the West-German Perspective,” West European Politics, no. 7 (1984), pp. 120-127; José Maria Beneyto, Politische Theo­ logie als politische Theorie: Eine Untersuchung zur Rechts- und Staatstheorie Carl Schmitts und zu ihrer Wirkung in Spanien (Berlin: Duncker & Humblot, 1983); Alain de Benoist and Günter Maschke, “Bibliographie Carl Schmitt,” Nouvelle Ecole, no. 44 (Spring 1987), pp. 67, passim’. Piet Tommissen, “Zweite Fortset­

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zungsliste der C.S.-Bibliographie vom Jahre 1959,” Cahiers VUfredo Pareto: Revue européenne des sciences sociales, 16, no. 44 (1978), pp. 193-238. * As far as the English-speaking world is concerned, Guy Oakes has translated Schmitt's Political Romanticism (Cambridge: The MIT Press, 1985), Ellen Kennedy has translated Schmitt’s The Crisis o f Parliamentary Democracy (Cambridge: The MIT Press, 1985), and George Schwab has translated Schmitt's Political Theology: Four Chapters on the Concept o f Sovereignty (Cambridge: The MIT Press, 1985, 1988). Schwab’s translation of Schmitt’s The Concept o f the Political.. . , appeared in 1976. Translations to appear in the near future include Schmitt’s Roman Ca­ tholicism and Political Form by G. L. Ulmen and Schmitt's The Leviathan in the Theory o f State o f Thomas Hobbes: Meaning and Failure o f a Political Symbol by George Schwab and Ema Hilfstein. * Bendersky, Carl Schmitt: Theorist fo r the Reids, pp. 135-144. 10 Ibid., pp. 134, 135. 11 Recently the intellectually-sophisticated and politically-left-inclined quarterly, Telos (published in New York), devoted a special issue to Schmitt tided, “Carl Schmitt: Enemy or Foe?” (no. 72). In the introduction the editors, Paul Piccone and G. L. Ulmen, observed that there is no reason why the left should “shrink from learning from its opponents” (p. 3). Speaking specifically of Schmitt, they sa te that some of his “ideas throw much needed light on questions central to the so-called crisis of the left — questions which, unless answered soon, will only lead to the further decline of an already rapidly falling movement” (p. 3). See also Helmut Quaritsch’s forthcoming review of this issue of Telos in Der Stoat, 27, no. 3 (1988). O n Schmitt and the political left see also Volker Neumann, “Die Wirklichkeit im Lichte der Idee,” Complexio Oppositorum, op. d t., pp. 557-575. 6 BP = Begriff des Politischen (1927, 1932, 1933, 1963). Most references in this study are to the second edition. V = Verfassungslehre (1928, 1954, 1957, 1965). All references in this study are to the third edition. HV = Der H üter der Verfassung (1931, 1969). All references are to the first edition. LL = Legalität und Legitimität (1932, 1968). All references are to the first edition. SBV = Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit (1933, 1935). All references in this study are to the third edition. DA = Ober die drei Arten des rechtswissenschaftlichen Denkens (1934). SZR = Staatsgefüge und Zusammenbruch des zweiten Reiches: Der Sieg des Bürgers über den Soldaten (1934).

The Introduction to the second edition of G G L is new. The second edition o f BP has been considerably expanded (the Forew ord and the three C orollaries o f the 1963 edition are new).

Introduction L Biographical Sketch Bom on Ju ly 11, 1888, in the predom inantly P ro testan t tow n o f Plettenberg in W estphalia, C arl S dim itt was the oldest o f four children. H is parents, Johann and Louise (bom Steinlein) Schm itt, w ere devout C atholics w ho came originally from die county o f T rier — M oselle. I t was his m other’s hope th a t young C arl w ould take advantage o f tw o endow m ents set aside fo r those members o f her fam ily preparing fo r the C atholic priesthood. W ith this in m ind C arl was sent to a C atholic prim ary school in Plettenberg, and, from 1900 to 1907, to the hum anistic gymnasium o f A ttendorn, also in W estphalia. W hile attending high school he lived in a C atholic convent. D uring these years he received a thorough training in the hum anities, religion and G reek. U pon graduation from the gymnasium in 1907, C arl entered the U niversity o f Berlin and — instead o f m ajoring in theology — w ith his parents' consent, studied law . There he rem ained until the summei of 1908, w hereupon he registered fo r the summer session a t the U niver­ sity o f Strassburg, and rem ained here until his graduation in 1910. From this institution he received his doctorate in jurisprudence (summa cum lande). H is dissertation dealt w ith crim inal law and the title o f his thesis w as: U ber Schuld und Schuldarten: Eine terminologische U n­ tersuchung. Schm itt passed his first law (R eferendar) exam ination in 1910. Soon a fter he began w orking as a law clerk and m ade the usual advances in his field. In 1913 Schm itt m et the b arrister and deputy o f d ie C enter p arty , D r. H ugo am Z ehnhoff1. H e exerted a profound influence on Schm itt’s juristic outlook by stim ulating his interest along lines o f con­ crete order and procedure. P rio r to this encounter Schm itt h ad found sufficient the norm ativist m ethod o f subsuming each legal case to an existing norm . N ow Schm itt views his w ritings p rio r to 1914 as stylistic exercises. 1 Prussian M inister of Justice from 1919 until 1927.

u

Introduction

In some o f these w ritings he follow ed the general N eo-K antian con­ struction o f die state. Schm itt believed the state’s function to be the realization o f right (Recht)2. R ight precedes the state* *. A nd w ho deter* mines right? Since the C atholic diu rd i is the universal spiritual entity which does n o t recognize an equal it is, Schm itt believed, in a much better position to decide w hat constitutes right than the very m any states which are essentially pares inter pares, and also victim s o f tim e in history4. W hat is the role o f the individual? Schm itt integrated the individual into the rhythm o f the state*. Thus the order o f precedence: right, state and the individual6. Schm itt refuted N eo-K antianism and norm ativism in the 1920’s and 1930’s in fav o r o f decisionism. Precise hints o f the la tte r had already appeared in 1912. H e pointed out then th a t the interpretation and application o f a specific law depends on the decision o f a judge and n o t on another law 7. Schm itt took his second and fin al law (Assessor) exam ination in 1915. In February o f the same year he volunteered fo r the in fan try . W hile in basic training he sustained a serious vertebra injury which incapaci­ tated him from fro n t line duties. Because o f this injury he was trans­ ferred in the summer o f 1915 to the state-of-w ar section o f the general staff (Stellvertretende G eneralkom m ando) in M unich. In general, this section was em powered to supervise, adm inister and issue decrees over all civil authorities in the area o f upper B avaria. U nder the jurisdiction of the section to which Schm itt was attached w ere included the tasks o f com batting black m arket activities, o f rationing food and clothing, and later in the w ar, o f countering enemy propaganda. W hile w orking in this section Schm itt began to be interested in the question o f dictatorship, the state o f exception and sim ilar problem s. I t was a t this tim e th a t Schm itt observed the difference betw een the state o f w ar (as it was called in B avaria) o r the state o f siege (as it was called in Prussia) and a dictatorship. * Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Tü­ bingen: Verlag von J. C. B. Mohr [Paul Siebeck], 1914), p. 2. * Ibid., p. 46. * Ibid., pp. 44—45. * Ibid., p. 94. * Ibid., p. 2. 7 Carl Schmitt, Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis (Berlin: O tto Liebmann, 1912), pp. 48, 52, 104, 106.

Introduction

15

la a state-of-w ar situation the preservation of the separation between legis­ lation and execution is maintained, [but] a concentration w ithin the execu­ tive takes place; in a dictatorship the distinction between legislation and execution remains too, but the division is done away w ith in that the same place, [the executive], has in its hand the decree [power] of the laws and their execution*8.

D uring his service in M unich Schmitt received a three m onth leave of absence so th a t he could obtain form al admission as a university lecturer, and fo r three m onths in 1916 he lectured a t the U niversity of Strassburg. A fter the leave o f absence expired he returned to his post in M unich w here he rem ained until the end of the w ar. Soon a fter the conflict, in 1919, he accepted a lectureship a t the G raduate School of Business A dm inistration (Handelshochschule) in M unich w here he taught until 1921. In the same year he was appointed full professor o f public law and governm ent a t the U niversity o f G reifsw ald. Between 1922 and 1928 he held a chair a t the U niversity o f Bonn, and w hile there he m arried in 1926 Duschka Todorovitsch w ho was o f O rthodox Serbian descent*. T heir only child, a daughter, A nim a, was born in Berlin five years later. From 1919 until 1928 Schm itt lived the regular life o f a professor, lecturing and w riting. In 1928 he m oved from Bonn to Berlin w here he accepted the H ugo Preuss chair a t the G raduate School o f Business A dm inistration. The W all Street crash o f 1929 ushered in the last phase of W eim ar's existence, and Schm itt, who was now in close contact w ith Johannes P opitz, Secretary o f State in the M inistry o f Finance, and Reichswehr officers o f the Schleicher entourage, such as M ajors Erich Marcks and Eugen O tt, attem pted through his w ritings to forestall an extrem ist p a rty slide into pow er. R egarding the action o f the Reich versus Prussia on Ju ly 20, 1932 (the rem oval o f the Prussian C abinet by the Reichspresident on the basis o f A rticle 48), Schm itt was called on, a t Schleicher’s request, to become legal adviser, together w ith P ro­ fessors C . B ilfinger, E. Jacobi and D r. Hoche, to prepare and help defend the case o f Prussia vs. the Reich before the G erm an Supreme C ourt a t Leipzig. The speaker fo r the Reich w as M inisterialdirektor G ottheiner o f the Reich's M inistry o f Interior. Those who defended Prussia w ere headed by M inisterialdirektor A. Brecht o f the Prussian 8 C arl Schmitt, "D iktatur und Belagerungszustand,” Zeitschrift für die ge­ samte Strafrechtswissenschaft, X X X V III, (1917), p. 156. 8 H is previous marriage which took place in 1916 was annulled in 1924.

16

Introduction

M inistry o f Interior. Legal experts w ere, among others, G . Anschütz, H . H eller and H . N aw iasky10. As one o f the legal experts fo r the R äch (in this capacity he could n o t m ake binding declarations) Schm itt had im plicitly supported Schleicher's im m ediate aim o f preventing a possible outbreak o f civil w ar which, Schm itt believed, could have subsequently resulted in a victory fo r the radicals* 11. C hancellor Papen's aim , on die other hand, was a conservative constitutional reform along authori­ tarian lines11 which he had hoped to im plem ent by declaring a state o f exception. In 1932 Schm itt accepted a chair o f public law a t the U niversity o f Koeln where he lectured during the summer o f 1933. Also in Ju ly 1933 he was nom inated fo r the office o f Prussian C ouncillor o f State. Al­ though the Prussian C ouncil o f State did not m eet a fte r 1936, he re­ tained his title until 19451*. U pon returning to B erlin, in the autum n o f 1933, he was nom inated to occupy a chair a t the U niversity o f B erlin which he held until the end o f W orld W ar II. A fter the Reichstag had voted fo r the enabling act, on M arch 2 3 ,1933, Schm itt reflected upon the idea o f joining the N ational-Socialist p arty . 1# H ie other legal experts in the judicial proceedings for Prussia were Dr. Badt, Professors F. Giese, H . Peters, T. Maunz, Fecht and Mr. von Jan and Walz. Preussen contra Reich vor dem Staatsgerichtshof: Stenogramm­ bericht der Verhandlungen vor dem Staatsgerichtshof (Berlin: J. H . W. Dietz Nachf., G-m.b.H., 1933), p. 3. 11 See Karl Dietrich Bracher, Die Auflösung der Weimarer Republik (3rd ed.; Stuttgart: Ring-Verlag, 1960), p. 590. According to Brüning, Schleicher’s immediate aim was to hinder the National Socialists from utilizing their strength in the Prussian parliament to gain control of die Prussian police. "Letter to Rudolf Pediel,” Deutsche Rundschau, H eft 7, July 1947, p. 13. It may be of interest to note that the Tägliche Rundschau, die only paper at Schleicher’s disposal, printed an excerpt from Schmitt’s Legalität und Legitimi­ tät (Berlin: Dundter 6c Humblot, 1932. Hereafter: LL.) on July 19, 1932, dealing with the premiums of power (see V, 2). The paper noted that to give die National Socialists a majority in the forthcoming election of July 31 would have unforeseeable consequences. Among other points, the paper emphasized that the Nazis would "change the constitution, introduce a national religion (Staatskirchentum), dissolve die unions, etc.” Whoever voted for National Socialism, the paper maintained, would "sell Germany out entirely to this group.” In his Legalität und Legitim ität (p. 51) Schmitt explicitly referred to the National Socialists, among others, as constituting a danger to the présidial system. i t Bracher, Die A uflösung . . . , p. 593. ** Carl Schmitt, "Answers in Nuremberg,” Personal Papers, II, April 28, 1947, p. 3.

Introduction

17

H e felt th at, among other things, the act was passed to avert the C om m unist menace, to p u t an end to unem ploym ent and hence, to insure peace; bu t m ost im portant was W eim ar's suicide. M oreover, after the enabling act was passed, he had the impression th a t the new system offered vast possibilities fo r w ork and reorganization. A ccordingly, he joined the p arty on M ay 1, 1933, and his membership num ber, because o f his late arrival, was above the tw o m illion m ark14. S hortly after the Reichstag had passed the enabling act S dunitt participated in the drafting o f the Reichsstatthalter law o f A pril 7 and, as a member of the Prussian Council o f State, in the draftin g o f the Prussian communal law o f December 1933. D uring this fateful year he was appointed to head the professional group o f university professors in the N ational-Socialist Ju rists' A ssociation. H e w ithdrew from this post in N ovem ber 1936, approxim ately one m onth before the b itter attack launched against him on December 10 in the w ell know n G estapo w eekly, Das Schwarze K orps1*. From then on Schm itt’s situation in G erm any became in some respects as precarious as th a t o f the hero o f H erm an M elville's Benito Cereno1*. A lthough a fter these vociferous attacks Schmitt continued lecturing until G erm any's collapse, he ceased to w rite, w ith a few exceptions, on juristic and related questions. A t the beginning o f A pril 1939 he ex­ pounded his Grossraum idea which he construed as an inevitable inter­ m ediate step between the trad itio n al national state and one-w orld universalism . This idea was m odeled on the M onroe D octrine, and it treated the W estern hemisphere as the first exam ple o f a Grossraum17. W hen Berlin fell, in A pril 1945, Schm itt was arrested by the Russians and released a fter an interrogation which lasted fo r several hours. In Septem ber 1945 he was interned in Berlin by the A m ericans and spent m ore than one year in tw o A m erican internm ent camps. Subsequently, in M arch 1947, Schm itt was transferred to N urem berg w here he was held fo r tw o m onths as a witness and possible defendant. H e was never 14 Ibid. H e received his membership book early in 1937. « Ibid., pp. 3—5. See IX , 2. 16 C arl Schmitt, "Antwortende Bemerkungen zu einem Rundfunkvortrag von K arl Mannheim,” Ex C aptivitate Salus: Erfahrungen der Zeit 194511947 (Köln: Greven Verlag, 1950), pp. 21—22. See also: Ernst Junger, Strahlungen (Tubingen: Heliopolis-Verlag, 1949), pp. 57, 408. 17 Schmitt’s writings on questions pertaining to international law and theory deserve separate treatm ent.S S S*w«b

18

Introduction

accused a t N urem berg o r thereafter. As soon as he was released in M ay 1947, he did not return to Berlin b u t w ent bade to Plettenberg, and he has rem ained there since. H is w ife died, after a prolonged illness in 1950; and his only child, A nim a, in 1957, m arried a professor o f the history o f law a t the U niversity of Santiago, Spain. W hen he was seventy, a num ber o f articles dealing w ith constitutional law and questions pertaining to political theory w ere dedicated to him l?y his friends and disciples* 18. A tw o volum e Festschrift was presented to him fo r his eightieth birthday18.

2. Intellectual Heritage To w rite about the intellectual heritage o f an individual whose people have not only lost tw o w orld w ars, b u t w ho in his youth, a t least until 1914, was under the influence o f diverse social and political cur­ rents, i. e., idealism , revolution, liberal dem ocracy, Prussian victories, K ulturkam pf, socialism, etc., is one o f the m ost interesting b u t also one o f the hardest tasks to accom plish. T he opposing intellectual forces in G erm any w ere numerous. The b attle betw een soul and intellectual spirit30 o r reason is one o f the topics which still plagues G erm an in­ tellectual life. A fter W orld W ar I intellectual attem pts to ju stify na­ tional revenge, inhum anity, violence and anti-Sem itism were another aspect o f the Germ an scene. I t is also no accident th a t O tto W eininger has been read intensely by m any o f the older G erm an intellectuals, not so much, as is commonly believed, because o f his hatred o f Jew s (he converted from Judaism to C hristianity), but as a revealing reflection o f their own self-hatred. These are bu t a few o f the curious elements involved. Few Germ ans who have had any connection w ith the G erm an centers of learning w ithin the last sixty years have been able to escape 18 Festschrift fu r Carl Schmitt (Edited by H ans Barion, Ernst Forsthoff and Werner Weber; Berlin: Duncker 8c H um blot, 1959). 18 Epirrhosis: Festgabe fu r Carl Schmitt (Edited by Hans Barion, ErnstWolfgang Bödcenförde, Ernst Forsthoff and W erner Weber; Berlin: Duncker Sc Humblot, 1968), two volumes. 80 Some Germans claim that after Hegel's death the carriers of the intellec­ tual spirit in Germany were Jews w ith whom, they felt, they could not compete. The German reaction was to take refuge in the soul. The soul finally felt compelled to defend itself against the onslaught of the intellect by erecting gas chambers. See K urt H iller, "Kameradschaftliche N ote” (1948), Köpfe und Tröpfe (Hamburg: Rowohlt, 1950), p. 567.

Introduction

19

the above m entioned dilemmas. I t is no t m y task to describe these situations in detail since 1 am not w riting an intellectual history o f G erm any, but I am only pointing out the prevailing intellectual clim ate o f which Schmitt was a p a rt. H ere w ill be m entioned only those in­ fluences th a t have a direct bearing on his w orks and, hence, on this study. N ote has already been m ade o f Schm itt’s C atholic provenience. Throughout his early years Schmitt had great adm iration fo r the C atholic church. As a grandnephew o f three C atholic clergymen w ho were involved in the K ulturkam pf (1872— 1887), and as a C atholic living in a predom inantly P rotestant area, he was very conscious o f the K ulturkam pf controversy. A lthough over by the tim e he was born, it was still a hotly debated topic, and often led to violence between C atholics and Protestants. Y oung C arl was fascinated by the victory of the C atholic church over Bismarck. “ D er grosse Bism arck," he was fond o f saying, “ w ar von der katholischen Kirche besiegt w orden." H e also adm ired the church's stability and juristic perfection. In com m enting on the church’s influence on the political theory o f the m odem state, one of his typical rem arks w as: “A lle prägnanten Be­ griffe der m odernen Staatslehre sind säkularisierte theologische Be­ griffe31." Furtherm ore, Schmitt was also strudc by the church's flexibility which, he felt, m anifested itself in its ability to unite w ith the m ost diverse political systems w ithout losing its own m ajor characteristics. H e called this elasticity the church's com plexio oppositorum * . H ow ­ ever, his adm iration fo r the splendor of the C atholic church was an early occurrence, fo r by 1929 he was convinced th a t theology, instead o f offering a firm foundation fo r political theories, opened m ore avenues o f dispute and distinctions than any other discipline; so much so th a t a laym an concerned w ith the theory o f dictatorship — as the religious D onoso C ortés — saw him self entangled in scholastic contro­ versies in which the theologian was n aturally superior to the laym an33. S1 Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Sou­ veränität (2nd ed.; München: Duncker fit Humblot, 1934), p. 49. Italics mine. Hereafter: PT. ** Carl Schmitt, Römischer Katholizismus und politische Form (2nd ed.; München: Theatiner Verlag, 1925), p. 10. Hereafter: RK . *s Carl Schmitt, "Der unbekannte Donoso Cortés" (1929), Positionen und Begriffe im Kampf m it Weimar — Genf — Versailles 1923— 1939 (Hamburg: Hanseatische Verlagsanstalt, 1940), p. 116.

t*

20

Introduction

Sdim itt’s disillusion w ith the C atholic church was final a fte r W orld W ar II. Because the church was habitually m eddling in affairs which was o f no concern to it, and because o f the religious w ars which w ere incited by theologians in the sixteenth and seventeenth century14, Schm itt began to echo Albericus G entilis’ rem ark: Silete, theologi, in munere aliène?*! D espite Schmitt’s C atholic provenience, his w ritings rem ained im­ mune to the essentially non-historical natu ral law concept which has form ed a cornerstone of scholastic thought since its inception. W hat­ ever natu ral law m ay m ean, one o f its aspects is clear, nam ely, th a t natural law on the one hand, and Schm itt’s sense o f the concrete and o f the uniqueness o f historical situations on the other, are in­ com patible. O ne basic principle o f natu ral law has been the belief th a t all men are equal. This m ay be interpreted from several points o f view : fo r exam ple, the equality o f all men before G od, the equality o f all civi­ lized men, and finally the equality of all citizens o f a particu lar nation. A re they all equally good o r equally evil? Y et these nuances do not invalidate the basic norm , nam ely, th a t o f the equality o f all men. M oreover, natu ral law thinkers have generally assumed th a t this equality is self-evident and therefore not subject to change in the course o f history. If, how ever, the concrete situation has m eaning in itself, as it does fo r Schm itt, then the conclusion to be draw n is th a t eternal values, fo r exam ple the equality o f all men, are nonexistent, which, in tu rn , m ust be follow ed by the proposition th a t an historical tru th is tru e only once (in the sense o f a m om entary and no t eternal tru th ), a m axim which Schm itt strongly believes and to which we w ill return in due tim e. C atholic w riters w ho exerted a considerable influence on Schm itt are Bonald, de M aistre and the long forgotten Spaniard D onoso C ortés — all non-G erm an nineteenth-century philosophers o f the counterrevolu­ tion. Bonald, believing th a t m an is essentially evil and th a t he is too w eak to recognize tru th , sees the only solution in trad itio n and society16. D e M aistre, too has no illusion about the nature o f m an, and he also •* M Carl Schmitt, “Ex Captivitate Śalus,” Ex Captivitate Solus. . . , p. 75. ** Ibid., p. 70; also: Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Köln: Greven Verlag, 1950), pp. 96, 131. *• PT, pp. 70 ff.

Introduction

21

finds his solution in trad itio n . Y et the special debt th a t Sdim itt owes to de M aistre is his equation o f decisionism w ith sovereignty. De Maistre speaks with special predilection of sovereignty which means to him essentially decision. H ie value of the state lies in that it [is capable of making a] decision, the value of the diurch, that it is last unappealable decision . . . and the infallibility of the spiritual order is identical with the sovereignty of the state’s order: die two words infallibility and sovereignty are 'parfaitement synonymes**7.

D onoso Cortés** prim ary political aim was to form a conservative fro n t o f European pow ers against the revolutionary forces which erupt­ ed in 1848**. A theist anarchist socialism w ith its axiom th a t m an is good contradicted sharply Cortés* religious conviction th a t m an is not only bad, bu t also disgusting unless redeemed by C hrist9*. M oreover, according to Schm itt, Donoso C ortés also despised the bourgeoisie whom he defined as " 'u n a clasa discutidora.” * Discussion is diam etrically opposed to dictatorship**. Therefore, in an age when m onarchy was rapidly coming to an end, D onoso C ortés, said Sdim itt, saw no alter­ native to socialist anarchism and bourgeois liberalism b u t political dictatorship. The novelty in D onoso C ortés’ thought was th a t he no longer advanced legitim ist argum ents, i. e., a restoration philosophy*1. *7 Ibid., p. 71. ** Carl Schmitt, "Donoso Cortés in Berlin, 1849,” (1927), Positionen und Begriffe. . . , pp. 83—84. *• Carl Schmitt, "Der unbekannte Donoso Cortés” (1929), Positionen und B eg riffe..., p. 117. 80 Carl Schmitt, Donoso Cortés in gesamteuropäischer Interpretation (Köln: Greven Verlag, 1950), pp. 30. 34, 36. 81 Carl Schmitt, “Der unbekannte Donoso Cortés,” pp. 118—119. Schmitt stated in 1950 that the central question in the days of Cortés was the problem of authority versus anarchy. The same holds true for the Weimar period. But now, according to Schmitt, the opposing concepts of authority and anarchy have lost their former acuteness, and a new pair of opposites has come to the fore, namely, anarchy and nihilism. Although Schmitt did not treat this question at length, he implied that the nihilism of a centralized order which became possible with the aid of modem means of destraction is opposed by a despairing people who see in anarchy not only a lesser evil, but even a wel­ come relief, (see Carl Schmitt’s Donoso Cortès in gesamteuropäischer Interpre­ tation, pp. 9—10). This allusion is obviously intended to describe the situation in Hitler’s Germany during World W ar II, when die people would have been content to live in a "state of nature” rather than be subjected to H itler’s tyranny. Although Schmitt’s distinction is interesting, no conclusive evidence

22

Introduction

Schm itt inherited from these C atholic philosophers o f the counter* revolution a critical estim ate o f the nature o f m an. A ccording to Schm itt’s earlier w ritings, he believed th a t m an is basically evil because o f original sin. Subsequently he noted the relationship betw een the theological outlook o f m an's nature and H obbes' presupposition th a t m an is basically dangerous*9. Schm itt observed th a t m any m odifications and variations o f the anthropological m eaning o f evil exists. I t can be understood as corruption, weakness, fear, stupidity, irratio n ality , etc.**. Schm itt’s outlook on the nature o f m an and his emphasis on the necessity o f the people being led contradicts one o f the tenets o f liberal political philosophy. B ut whereas Bonald and de M aistre found their solution in trad itio n , Schm itt finally came to the conclusion th a t in so fa r as W eim ar G erm any was concerned, the solution to the ever re­ curring crises lay in the establishm ent o f a plebiscitarian type o f de­ m ocracy w ith the president o f the W eim ar state a t the helm , aided by the arm y and the officialdom . By the tim e Schm itt h ad discovered D onoso C ortés he had already published a long article on dictatorship*4. Schm itt’s theoretical solution was, to an extent, a v ariation on D onoso C ortés' them e o f political dictatorship. T he question o f legitim acy in the dynastic sense did n ot enter Schm itt’s m ind. H e did adhere to some extent to the concept o f dem ocratic legitim acy (i. e., the G erm an people’s decision on the nature o f the constitution they desired to live under) in so fa r as the W eim ar constitution w as concerned. B ut even here his adherence was qualified by n o t allow ing the people to p articipate in political decision m aking unless asked to do so by the president. Sim ilarities also exist betw een C ortés' condem nation o f freedom o f discussion in the assemblies in Prussia and other parts o f G erm any a fte r the upheavals o f 1848, and Schm itt’s criticism s o f the W eim ar parliam ent. I t m ust be pointed out, how ever, th a t C ortés was n o t against the institution o f parliam ent as such. The conditions o f his acceptance o f parliam ent w ere th a t it be “ subordinate to the monarch and united w ith the m onarch in seeking the solutions necessary fo r th e 43* has appeared so far that the German people were discontent with H itler at any time during die conflict. ** Carl Schmitt, Der Begriff des Politischen (2nd ed.; München: Duncker 8c Humblot, 1932), pp. 49—52. Hereafter: BP. 33 Ibid., p. 46. 34 Carl Schmitt, "Diktatur und Belagerungszustand.”

Introduction

28

w elfare o f society“ ” . Sdim itt’s opinion o f the W eim ar parliam ent was ▼ery sim ilar. M oreover, we w ill also fin d in Schm itt's w ritings a strik­ ing sim ilarity w ith Cortés* evaluation o f political parties. The la tte r believed th a t groups and parties in assemblies "w ere less interested in uniting w ith legitim ate authority fo r action than they were in m aintain­ ing a doctrinal position which they m aneuvered to tu rn into a position o f dom inance o f the state”“ . In his attem pts to define him self intellectually Schm itt also dealt w ith rom anticism . H e w rote a m ajor study on political rom anticsm in 1919“ . F or him to have done this was a kind o f "skin-shedding,” o r w hat the Germ ans now call E ntlastung, because the rom antic trad itio n has had a profound influence on the G erm an intellectual outlook. By "shedding his skin” Schm itt aim ed a t standing a p art from the rom an­ tics. This he was able to achieve w hen he confronted C atholicism w ith the form er. H e observed th a t neither the C atholic religion nor C atholic institutions, nor Catholicism in general are in themselves rom antic, despite the fa c t th a t they have often been utilized as incitem ents to rom antic enthusiasm “ . H. S. Reiss has noted th a t the earliest phase o f rom anticism was pre­ em inently English. H e stated th a t the English rom antics p rio r to the French R evolution "held liberal and even revolutionary view s, which they abandoned in the years follow ing the R evolution” . The second phase was m ainly G erm an and, according to Reiss, the Germ an rom an­ tics "reacted violently, a fte r a short spell o f enthusiasm , against the R evolution and its N apoleonic afterm ath” . The French phase o f rom an­ ticism was, Reiss added, p a rtly reactionary b u t it also had a radical side. A bove all, it was m arked by a strong interest in social problem s and an inclination tow ards nationalism “ . S triking in this description is the basic lack o f conviction on any given object. Rom anticism in various countries had different aims and even w ithin a given country rom antics can be found em bracing a wide *735 35 J. J. Kennedy, Donoso Cortés as Servant o f the State (New York: Un­ published Ph. D. Dissertation, Columbia University, 1954), pp. 130—131. 33 Ibid., p. 131. 37 Carl Schmitt, Politische Romantik (2nd ed.; München: Dundcer & Humblot, 1925). 33 Ibid., p. 76. 33 Hans Siegbert Reiss, ed., The Political Thought o f the German Roman­ tics 1793— 1815 (Oxford: Basil Blackwell, 1955), p. 1.

24

Introdncdon

variety o f beliefs. In speaking o f G erm an political rom anticism in particular, Schm itt singled ou t the case of A dam M üller. H is political activities, according to Schm itt, w ere indicative o f the rootlessness of the G erm an political rom antics. Schm itt pointed out th a t A dam M üller was an opportunist when he advocated ideas th a t w ere favorable to the Prussian governm ent, be­ cause sim ultaneously he was ready to denounce them . M oreover, M üller's roam ing from the Prussian civil service to the post of A ustrian consul-general in Leipzig was, in Schm itt’s view , sym ptom atic o f the restlessness and rootlessness o f rom antics in general. The picture o f instability w as com pleted w hen the la tte r tw o qualities, according to Schm itt, w ere com bined w ith M üller’s conversion to C atholicism as early as 1805". As a result o f Schm itt’s observations he stated th a t rom anticism is "subjectified occasionalism ” because in rom anticism "th e rom antic sub­ ject [i. e.,] the w orld, is treated as occasion and o p p o rtu n ity . . .” 41 04 .4* G od as a p oint o f reference is replaced by the "genial T ”* . This perm its the rom antics, Schm itt observed, to take anything in the w orld as a starting point and m ake o f it an im portant, b u t im perm anent episode4*. A ccording to this argum ent it follow s th a t revolution as w ell as counterrevolution, C atholicism as w ell as heresy, can be taken as occasions fo r the rom antic subject. Schm itt agreed w ith N ovalis th a t in "rom anticism everything be­ comes the ‘beginning o f a never ending novel (R o m a n )' ’,44. The sub­ jective approach to everything leads n o t only to indecision, according to Schm itt, b u t also to alliances w ith the m ost diverse political trends. T he rom antics can indulge in this kind o f shifting because they, as contrasted w ith the C atholics, have no basic W eltanschauung em ana­ ting from one source. C onsequently, Schm itt argued, since they cannot hold on to a definite political idea fo r any length o f tim e45, indecision and weakness o f character best describe the predicam ent o f the root­ less rom antics. 40 Carl Schmitt, Politische Romantik, pp. 57—59, 61. 41 Ibid., p. 23. « Ibid., p. 24. 4* Ibid., p. 22. 44 Ibid., p. 26. The German word Roman and romanticism have the same etymological root. « Ibid.,?. 77.

Introduction

25

T h at the rom antics w ere rootless is understandable, because rom an­ ticism has never been a political movement. But Schm itt never claim ed th a t they constituted a political movement, o r th a t they possessed a set of uniform ideas on specific political questions. H e stated th a t Germ an political rom anticism was nothing m ore than the “Begleitung der akti­ ven Tendenzen ihrer Z eit und ihrer Umgebung”46. G erm an rom an­ ticism , S dim itt continued, first rom anticized the R evolution, then the R estoration, and since 1830 again the R evolution47. As was already m entioned above, Schm itt’s concern w ith this topic was nothing more than his desire to define his position in life. T h at he intended to follow the C atholic churdi, rath er than rely on his “ genial T,*” is beyond doubt. B ut already Schm itt’s early w ritings betray an unm istakable belief in the uniqueness o f historical events. This certainly borders on the subjective-occasionalistic tem per o f rom anticism . Indeed, some critics have observed th a t S dim itt him self painted his own picture in his p o rtrait o f M üller46. B ut S dim itt w ould argue th a t this is false, be­ cause he believes his starting point to be alw ays a specific aspect o f jurisprudence. A ccording to him he is not a law yer one day, a com­ poser the next and on the follow ing day a poet49. T he m ore S dim itt absorbed him self in actual constitutional questions in the 1920's, the m ore the theological counterrevolutionaries receded from his thoughts, and his attacks upon rom anticism ceased. N ow other thinkers came to the fore: Bodin and Hobbes. From Bodin Sdim itt took th a t p a rt o f his definition o f sovereignty which deals w ith its absolute nature60. From H obbes Sdim itt borrow ed the belief th a t auctoritas, non veritas fa cit legem. H e w ho has authority (authority and pow er are here com bined) can dem and obedience, and it is not alw ays the legitim ate sovereign w ho possesses the needed authority. The « Ib id .,? .227. « Ibid., pp. 227—228. 48 Eduard Rosenbaum, “Carl Sdimitt vor den Toren,” Rheinischer Merkur, No. 48, November 1950, p. 18; Christian Graf von Krockow, Die Entschei­ dung: Eine Untersuchung über Em st Jünger, Carl Schmitt, Martin Heidegger (Stuttgart: Ferdinand Enke Verlag, 1958), p. 92. 4* On a number of occasions Sdimitt has even proved to be a successful poet. Furthermore, Sdimitt counted among his friends two known modern German poets, Theodor Däubler and Konrad Weiss. Carl Sdimitt, "Zwei Gräber,” Ex Captivitate Salus. . . , pp. 45, 51. 60 Jean Bodin, Les six Livres de la République (2nd Frendi ed.; Chez Jacques du Puys, 1580), p. 122.

28

Introduction

obvious im plication is th a t the sovereign w ho could no t protect die subject had no right to dem and obedience. A nd this was exactly w hat H obbes m eant by the “ m utual R elation betw een Protection and obedi­ ence,” 81* which Schm itt w as never tired o f citing. B oth Bodin and H obbes, according to Schm itt, gave him m ore realistic “ answers to international and constitutional law questions o f [Schm itt's] tim e than the com m entaries to Bismarck's [constitution] o r the W eim ar constitu­ tion o r the publications o f the G eneva League”88. Rousseau and H egel also left th eir im print upon Schm itt. Tw o related ideas which Schm itt adopted from Rousseau and reinterpreted are the concept o f the identity betw een ruler and ruled, and the belief th a t the general w ill m ust be the basis o f the state's action. In Rousseau the identity betw een ruler and ruled (in itself an old form ula) found its expression in his concept o f the general w ill in which each member o f the com m unity was sovereign and subject alm ost sim ultaneously08. W ithin Schm itt's structure the general w ill was incorporated in one person only, he w ho was chosen by the G erm an people. Schm itt rejected the thought th a t the people could particip ate in all aspects of deci­ sion m aking04. H ence we m ay say th a t sometimes he approached the Jacobin logic o f Robespierre w ho m aintained th a t the people m ay deceive themselves about the “ general w ill," and therefore m ust be “ forced to be free"08. The m ain difference betw een Schm itt and Robes­ pierre is th a t the la tte r had an unlim ited faith in the educability o f the people. O ne does no t find such optim ism in Schm itt’s w ritings. M ention has to be m ade o f H egel's belief in the historical process. T hat this process is not static06 had already been recognized by H era51 Thomas Hobbes, Leviathan, or the Matter, Forme, and Power o f a Commonwealth Ecclesiasticall and Civill (Introduction by Pogson Smith; Lon­ don: Oxford University Press, 1952), p. 556. See also: Carl Schmitt, Die D ik­ tatur: Von den Anfängen des modernen Souveränitätsgedankens his zum pro­ letarischen Klassenkampf (München: Duncker & Humblot, 1921), pp. 22—23. Hereafter: D. 6* Carl Schmitt, *Ex Captivitate Salus," Ex Captivitate Salus. . . , p. 64. 58 Jean Jacques Rousseau, “The Social Contract,” The Social Contract and Discourses (Translated with an introduction by G. D. H . Cole; New York: E. P. Dutton and Company, Inc., 1950), pp. 16—17. 54 Carl Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentaris­ mus (2nd ed.; München: Duncker & Humblot, 1926), p. 22. Hereafter: GGL. 88 Jacob L. Talmon, The Origins of Totalitarian Democracy (Londont Seeker & Warburg, 1955), p. 106. 88 This meant for Schmitt, among other things, that eternal values are nonexistent.

Introduction

27

d im s w ho said th a t “You could not step tw ice in the same rivers; fo r other and yet other w aters are ever flow ing on”57. So, says Schmitt, one cannot m ake the same speech o r w rite the same essay tw ice58. Situations constantly change, and therefore, according to Schmitt, im­ p o rtan t questions o f today m ust not be phrased and answ ered in term s o f the era o f T alleyrand and Louis Philippe59. H ence Schm itt accepted the belief th a t history is a constantly changing process or, as he stated: “Eine geschichtliche W ahrheit . . . ist nur einm al w ahr” (a historical tru th in history is true only once)80. Therefore one does not find in Schm itt’s w ritings references to a final goal o f history as is the case w ith H egel. Schm itt is basically interested only in situations and prob­ lems in which he participates personally and to which his fate is linked. H is question-answ er m ethod m ust be understood in this context only. As was already stated in the Preface, specific questions dem and specific answers; in C ollin gwood’s phrase, which also applies to Schm itt: “ A highly detailed and particularized proposition m ust be the answ er, not to a vague and generalized question, b u t to a question as detailed and particularized as itself81.” Schm itt’s belief in the uniqueness o f historical events and his low estim ate o f hum an nature reveal an im plicit distinction in his thinking between fundam ental and incidental events. H is opinion of the nature of m an can be assumed to be a m ore fundam ental hypothesis and there­ fore no t easily changeable by the course o f history. In Schm itt’s criterion of politics as the distinction between friend and enemy is contained this fundam ental assum ption o f m an's nature, and the criterion m ay there­ fore be applicable to our epoch, the epoch o f the national sovereign state. This certainly im plies th a t a new type o f m an (hom o hom im homo novus) m ay eventually emerge. B ut w hat constitutes enm ity and 140* 47 Milton C. Nahm, ed., Selections from Early Greek Philosophy (3rd ed.; New York: F. S. Crofts 8c Co., 1947), Fr. 41—42, p. 91. 44 Carl Schmitt, Positionen und Begriffe. . . , Foreword. «• Ibid. 40 Carl Schmitt, "Die geschichtliche Struktur des heutigen Weltgegensatzes von Ost und West: Bemerkungen zu Ernst Jüngers Schrift ‘der gordische Kno­ ten,”’ Freundschaftliche Begegnungen: Festschrift für Emst Jünger zum 60. Geburtstag (Edited by Armin Möhler; Frankfurt a/M: V. Klostermann, 1955), p. 147. 41 R. G. Collingwood, A n Autobiography (2nd ed.; London: Oxford Uni­ versity Press, 1951), p. 32.

Introduction

friendship a t a given m om ent in our epoch can be derived only from the concrete situation. H egel's belief th a t the state is a sphere o f objective reason and as such an en tity superior to all other hum an associations6* is shared by Schmitt. In Schm itt as w ell as in H egel civil society exists, but in both it constitutes only one m om ent in the state’s structure. The difference between H egel and Schm itt is, how ever, th a t to the form er the state was a means to realization o f the highest form o f existence, w hile Schmitt was m ainly concerned w ith rescuing the G erm an state o f his tim e from the encroachments o f civil society, and consequently also m aintaining it as a pow erful en tity in international relations6*. Schm itt m ay be classified as a N eo-H egelian in so fa r as he believed th a t the W eim ar state — and particularly, the president, the officialdom , and the Reichswehr — constituted a sphere of objective reason in com pari­ son w ith the egoism o f pluralist groups. Some influence on Schm itt's w ritings was also exerted by M ax W eber in whose sem inar Schm itt participated a t Munich in 1919— 1920. This influence concerned m ainly the categories Schmitt utilized in discussing the présidial system and the question o f legality and legitim acy. M ention m ay therefore be m ade in this context o f W eber's three well know n types o f legitim acy: charism atic, trad itio n al and legal64. H ow ­ ever, Mommsen’s claim th a t Schm itt in his treatm ent o f the W eim ar constitution was only a “ docile disciple” (gelehriger Schüler) o f M ax W eber, seems exaggerated66 for, as w ill be seen, W eber's influence on Schmitt was n o t very profound.* ** J. W. F. Hegel, Philosophy of Right (Translated with notes by T. M. Knox; Oxford: At die Clarendon Press, 1953), p. 156. ,s Carl Schmitt, Der Hitter der Verfassung (Tubingen: Verlag von J. C. B. Mohr (Paul Siebedc], 1931), pp. 88, 115. Hereafter: H V . Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (4th ed.; Edited by Johannes Winckelmann: Tübingen: J. C. B. Mohr [Paul Siebeck], 1956), 1. Halbband, p. 124. 65 Wolfgang J. Mommsen, Max Weber und die deutsche Politik 1890— 1920 (Tübingen: J. C. B. Mohr [Paul Siebedt], 1959), p. 3S0. See also Mommscn*6 remarks in the "Diskussion zum Thema: Max Weber und die Maditpolitik,” Max Weber und die Soziologie heute: Verhandlungen des fünfzehnten deut­ schen Soziologentages (Edited by O tto Stammer and Rolf Ebbinghausen; Tü­ bingen: J .C . B. Mohr [Paul Siebeck], 1965), p. 135. Someone even referred to Schmitt as a “‘natural son’” of Max Weber. See the comments by Jürgen H a ­ bermas in the “Diskussion zum Thema: Wertfreiheit und Objektivität,” Max Weber und die Soziologie heute. . . , p. 81.

P a rt O ne

Schmitt and the Weimar Constitution: 1921*1933 C hapter /

T he M eaning of D ictatorship Schm itt’s w ritings o f the early 1920’s dealt largely w ith legal prob­ lems as they pertained to the W eim ar constitution. These legal points were developed against a background o f extrem e unrest. Crises in G erm any w ere the rule rath er than the exception. T he circum stances under which the republic was bom w ere fa r from norm al. The problem s th a t beset G erm any even before Scheidemann proclaim ed the republic, on N ovem ber 9, 1918, were only a prelude to the uprisings o f the People’s N av al D ivision in Berlin in 1918, o r the blood bath in the Berlin Vorw ärts building on Jan u ary 11, 1919. These and m any sim ilar incidents throughout G erm any w ere responsible fo r w idespread dis­ order which a t times bordered on civil w ar. Crises did n o t cease even w ith the founding o f the republic in A ugust 1919. By M ay 1920 G er­ m any was beginning to experience financial problem s which became alarm ing by Jan u ary 1921, chaotic by N ovem ber 1922, and fantastic when the old m ark was finally replaced by a new currency in N ovem ­ ber 1923. The K app Putsch o f M ardi 1920, the Com m unist uprisings in T huringia and Saxony, the Beer H all Putsch o f N ovem ber 1923, and the ever rising unem ploym ent m ust n o t be overlooked, because they were decisive events in the first years o f W eim ar’s existence. I t was in this atm osphere th a t Schm itt published a significant study on the nature o f dictatorship (D ie D ikta tu r, 1921)1. This study dealt w ith: (1) the nature o f dictatorship in general, and (2) the nature o f the president's dictatorship which was based on A rticle 48 o f the W ei­ m ar constitution. T he reason fo r including the la tte r was to show some of the constitutional rights the president possessed in order to deal w ith » D.

80

P art One: Sdimitt and the Weimar Constitution: 1921—1933

crises in G erm any. T o define correctly the type o f dictatorship which A rticle 48 provided, Sdim itt investigated dictatorships th a t had existed previously as w ell as the Soviet dictatorship which had just emerged.

1. The Distinction between Commissarial and Sovereign Dictatorship In defining a dictatorship Schm itt's starting p oint was B odin's distinction betw een sovereignty and dictatorship. “ Sovereignty,” ac­ cording to Bodin, “ is the absolute and perpetual pow er o f a republic w hidi the Latins call m aiestatem . . . ” and which is exercised either by the people o r the prince. The dictator, on the other hand, is “neither prince, n or sovereign m ag istrate. . . , ” b u t one w ho holds a commission from the sovereign to accom plish certain tasks, such as “ to wage w ar,” “ reform the state,” and sim ilar assignm ents. The d ictato r's pow ers are neither absolute n or perpetual3. H ow ever, according to Bodin, n o t everyone w ho holds a commission is necessarily a dictator. H e distinguished tw o types o f m agistrates w ho hold commissions: the officers and the commissioners. “ The officer is the public person w ho possesses ordinary diarge (charge ordinaire) lim ited by edict. [A nd the] commissioner is the public person w ho has extraordinary charge lim ited by sim ple commission3.” The essential d if­ ference betw een the tw o is th a t the form er is bound by law w hile the la tte r receives specific orders from the sovereign to accom plish certain tasks. F or our purpose only the la tter, nam ely the commissioner, is o f interest, fo r he m ay be the d ictato r in B odin's sense. A lthough Bodin classified m any types o f commissioners according to th eir commissions, he did n o t do so effectively. T he commissioners w ho received extra­ ordinary pow ers to conduct w ars were, according to S dim itt, throw n together w ith those w ho inspected m eat o r those w ho w ere sent on am bassadorial missions4. T o distinguish the dictato r from other types o f commissioners S dim itt suggested th a t the dictator in Bodin’s system should be referred to as Aktionskom m issar* *. * J. Bodin, Les six Livres de la Republique (2nd French ed.; Chez Jacques du Puys, 1580), pp. 122—123. * Ibid., p. 372. * D, p. 38. * Ibid., p. 39.

Chapter I : H ie Meaning of Dictatorship

81

In keeping w ith this definition o f sovereignty and dictatorship, Bodin com m ented th a t the nature o f Sulla's and C aesar’s rule was not sovereign because the rights o f the tribunes, a t least form ally, continued to be recognized. The tru e sovereign, according to Bodin, does not rec­ ognize anyone above him self bu t God*. Schm itt, too, justly stated th a t a basic difference existed between the dictatorships o f Sulla and C aesar and previous dictatorships. U sually the dictator in Rome was appointed by the Consul a t the request o f the Senate. The dictato r’s task, according to Schm itt, m ay include the w aging o f w ar, the suppression o f an insurrection, etc. H is aim is to elim inate an existing critical situation so th a t the suspended constitution (in exceptional times a p a rt o r even the entire constitution m ay be tem porarily suspended) m ay again be revived. To accomplish his im m ediate goal — the elim ination o f the critical situation — the old republican dictato r was appointed fo r six m onths, b u t often re­ linquished his rule before the expiration date — depending naturally on the situation. The dictatorships o f Sulla and C aesar, although still referred to as dictatorships, differed considerably from the old re­ publican practice. Sulla was appointed dictato r fo r an indefinite period. H e stepped out of office after he had increased the pow er o f the Senate and set the G racdian constitution aside. C aesar's dictatorship finally extended fo r life. M oreover, all o f C aesar’s actions prove, according to R ostovtzeff, th a t he looked on the existing constitution as useless and obsolete6 7. In attem pting to understand the nature o f dictatorship, it is essential to know , Schm itt pointed out, the tim e elem ent involved, and w hether the dictatorship aims a t preserving o r abrogating the existing constitutional order8. W hat about the so-called dictatorship o f W allenstein in the seven­ teenth century during the T h irty Y ears’ W ar? H is rule is treated by m any historians as an exam ple o f dictatorship. A ccording to Schmitt, how ever, not every rule which appears to be absolute is necessarily dictatorial in nature9. O f special interest in W allenstein’s case were 6 Bodin, Les six Livres. . . , p. 124. 7 Michael Ivanovich Rostovtzeff, Rome (Translated from the Russian by J. D. Duff; A Galaxy Book; New York: Oxford University Press, I960), p. 133. 8 D, pp. 1—3. • Ibid., pp. 79— SO.

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the legal im plications connected w ith his tw o commissions in 1625 and 1631. Schm itt analyzed these tw o commissions and noted th a t neither should be referred to as dictatorships, as has usually been done. W allen­ stein’s first appointm ent in 1625 to lead the K aiser’s arm y was m erely, according to Sdim itt, a m ilitary commission10.*1 A nd because o f its exclusively m ilitary nature W allenstein was not perm itted to encroach upon the rights o f the estates. H ence, his status w as, S dim itt concluded, nothing b u t th a t o f a com m anding general11. W allenstein’s dismissal by the K aiser in 1630 was follow ed in 1631 by his reinstatem ent. This m arked the beginning o f the second period o f his arm y leadership th a t lasted until his m urder in 1634. A gain W allenstein’s rule was, in Schm itt’s view , nothing b u t th a t o f a com m anding general o f the K aiser’s arm y, in spite of the fact th a t in his second commission he was given chief command in absolutissima form a. Since the dictato r had to have the right, according to Sdim itt, to encroach upon the valid legal order, he concluded th a t W allenstein’s commission could not properly be called dictatorship, because a general state o f exception w ith regard to the valid legal order did not exist19. The essential points o f a com m issariat dictatorship which emerge are: (1) th a t it occurs a t the m om ent w hen an established state o f affairs is sufficiently threatened to w arran t the appointm ent o f a dictator, (2) the dictator is appointed by the sovereign — a pouvoir constitué19 — to accom plish a specific mission, and when it has been accom plished the dictator's task ceases, (3) in order fo r the mission to be successful, Schm itt said, the com m issarial dictator m ay tem porarily suspend o r m ake extrem e inroads into the constitution and the dom ain o f ordinary legislation, bu t he m ay not abrogate existing law s from the statute books. A ccording to Schm itt, a com m issarial dictator suspends the constitution in order to protect and reinstate it a fte r the danger is over14.* H ence the dictator's task is to elim inate the danger and to 10 Ibid., p. 82. 11 Ibid., p. 85. 1S Ibid., pp. 93, 95. Actually, Schmitt noted, the central juristic problem during both periods was: Could the Kaiser decide on his own whether a state of exception existed or did he have to obtain the concurrence of the seven electors? » Ibid., p. 146. »« Ibid., p. 136.

Chapter I: The Meaning of Dictatorship

strengthen the foundation which has been threatened. B ut the new elements in Sulla's and C aesar's dictatorships bordered on w hat Schmitt called sovereign dictatorship. The la tte r found its fu ll expression for the first tim e during the French R evolution18. Among the differences betw een a com m issariat and a sovereign dictatorship are, according to Schm itt, the fact th a t th e form er is based upon the pouvoir constitué appointing the dictator, w hile in the la tte r instance the appointm ent depends upon the pouvoir constituant o f the people. Sometimes, how ever, the pouvoir constituant is recognized solely by the sovereign dictato r him self16, as was the case betw een 1793 and 1795 in France and since 1917 in the Soviet U nion. O ther significant points o f a sovereign dictatorship are the length o f tim e it m ay last, and the conflict betw een the existing constitutional legal order and the future one17. From the view point o f political theory Schm itt traced the idea of sovereign dictatorship to the eighteenth-century Enlightenm ent philos­ ophy, especially to M ably and Sieyës. A ccording to Schm itt, M ably advocated as early as 1756 the notion th a t during a revolution the representatives o f a people should conduct all affairs and take execu­ tive pow er in to their ow n hands16. A lthough M ably still spoke of dictatorship in the antiquated Rom an juristic sense, he nevertheless veered tow ard a new interpretation. D ictatorships set in when the law s become eroded and corruption becomes too great. T o him , said Schmitt, “ the dictato r appears . . . as a type o f reform commissioner w ith un­ lim ited pow ers vis-à-vis the entire constituted state organization''10. Therefore, in Schm itt's view , if M ably's statem ent w ith regard to the people taking over the executive pow er during a revolution w ere to be *5 Despite Bodin's awareness of the historical facts of Sulla's and Caesar's dictatorships he still treated th an in the old institutional sense of dictatorship. 10 D, p. x. Since the Revolution of 1917 the Communists, for example, have declared their rule to be in the name of the proletariat, but have never given the working class a true chance to voice their opinion on the ruling group. » Ibid., pp. 139—140,201—202. 18 Ibid., pp. 115—116. On May 18, 1790, Robespierre, taking cognizance of Mably's enmity toward the executive power, told the convening Assembly "that only the legislature may decide about war and peace, because it has the least interest in abusing its power, the king on die other hand is inclined. . . ” to misuse his powers. Ibid., p. 115. » Ibid., p. 116. 8 Sdnrab

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coupled w ith his conception o f the dictato r as a reform commissioner, then the new dictatorship o f the N ational C onvention could no longer be understood as “ com m issarial dictatorship [i. e., a dictatorship aim* ing to preserve the threatened valid legal system ], b u t m ust be under­ stood as a sovereign revolutionary dictatorship”90. Thus the antithesis which Bodin had set up between sovereignty and dictatorship was dis­ solved, and the union betw een the tw o had great consequences fo r the origin o f totalitarianism . References to the pouvoir constituant are found in Sieyès* rem arks on the th ird estate. “The th ird estate . . . comprises everything apper­ taining to the nation; and w hatever is not the th ird estate m ay not be regarded as being o f the nation. W hat is the th ird estate? E very­ thing31!” T he pouvoir constituant, according to S dunitt, possess all the rights to give themselves any kind o f constitution they desire. B ut the w ill o f the am orphous people is vague. A t m ost, they can, fo r exam ple, assert their desire to have a constitution. Thus Sieyès toudied on the concept o f representation. The representatives o f the am orphous people are commissioners in the tru e sense o f the w ord, and it is their task to define the general desires o f the am orphous people. These people never organize themselves, b u t alw ays other entities. H ence the representa­ tives o f die people, viz: commissioners, base their pow er, according to S dunitt, on the am orphous people — the pouvoir constituant — to whom they constantly appeal and w ho, in tu rn , could then act33. In its activities the N atio n al C onvention was an exam ple o f sover­ eign dictatorship. The N ational C onvention, w hidi m et on Septem ber 20, 1792, was the extraordinary organ o f a pouvoir constituant. I t was commissioned to draw up a constitution which was com pleted, sub­ m itted to the people, and finally accepted by them in 17933*. W ith the acceptance o f the constitution the task o f the N ational C onvention was accom plished. C onsequently, a fte r its commission was com pleted it ceased to be the extraordinary organ o f a pouvoir constituant. A lthough its task came to an end w hen the constitution was accepted, the N ational C onvention decided, on O ctober 10, 1793, not to dissolve * *° Ibid. 11 John H all Stewart, A Documentary Survey of the Prend» Revolution (New York: The Macmillan Company, 1951), p. 44. ** D, pp. 143—145. ** The throne was overturned on August 10, 1792, and the French consti­ tution of 1791 was cast aside.

Chapter I: The Meaning of Dictatorship

85

until the th reat of w ar and the internal counterrevolutionary activi­ ties w ere elim inated. The constitution was then suspended, b u t not abrogated; yet, incidentally, it was never restored. The crucial point was th a t the N ational C onvention had never been entrusted w ith the pow er to suspend the constitution. T o meet the external and internal dangers, a com m ittee o f the N ational C onvention (com ité du salut public) was established on A pril 5, 1793 w ith fa r readiing powers to p u t an end to these threats. The source of the com m ittee's pow er was the N ational C onvention w hidt, according to Schm itt, was no t only a self-appointed body since O ctober 10, 1793, but “ derived” its authority from a pouvoir constituant w hidi only the N ational C onvention rec­ ognized34. A tw entieth-century exam ple o f sovereign dictatorship is based on the M arxian philosophy o f history as interpreted by Lenin, T rotsky and R adek. The M arxian philosophy o f history aims a t bringing about a condition in society in w hidi economic classes w ill cease to exist. The “true” M arxians argue, according to S dim itt, th a t “ the bourgeoisie is a ‘class condem ned by history to die’” . Because the p ro letariat is historically the rising class, it has a right to apply force against the bourgeoisie. The use o f force by the historically rising class m ay take place “ w henever it seems to be in the interest o f historical develop­ m ent” in the relation betw een the historically rising and historically declining class. “W hoever is on the side o f things (D inge) to come,” S dim itt observed, “m ay also push w hat is [already] falling39.” From this it becomes obvious th a t the M arxian philosophy o f history finds its raison d’etre in the historical mission o f the w orking class — the pouvoir constituant is here identified w ith the p ro letariat only — w hidi is die bringing about o f the Com m unist m illenium 36. A sovereign dictatorship, said Sdim itt, “ sees in the to tal existing order the situation w hidi it seeks to do aw ay w ith through its actions” . The existing constitution is n o t m erely suspended, b u t abrogated. The final aim o f a sovereign dictatorship is “ to create a condition whereby a constitution w hidi it considers to be a true constitution w ill become possible” 33. « » *• ”

s*

D, p. 152. Ibid., p. viii. Ibid., pp. vi—viii. Ibid., p. 137.

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P art One: Sdimitt and the Weimar Constitution: 1921—1933

The difference betw een th e tw o types o f dictatorship is crucial, for these categories are present by im plication in m any o f Schmitt’s sub­ sequent w ritings. H ow ever, the question th a t now arises is w hether the nature o f com m issarial and sovereign dictatorship is n o t essentially a m atter o f sovereignty. Should Bodin’s definition o f the absolute and perpetual nature o f sovereignty be accepted, then o f course, the com­ m issarial dictator is a t no tim e sovereign because his pow ers are derived from the pouvoir constitué. T he commission m ay be term inated by the sovereign a t any tim e. I f the com m issarial dictato r w ere to resist the revocation o f his commission, then he could become sovereign dictator or even sovereign. T h at sovereign dictatorship cannot be equated w ith sovereignty is also self-evident. Furtherm ore, in the instance o f France it m ust be rem em bered th a t the raison d ’être o f the N ational Assembly ceased a fter France inflicted heavy losses on her foreign enemies and, also, w hen the royalist cause inside France no longer posed a th reat. The N ational C onvention finally ceased to exist in O ctober 1795, approxi­ m ately tw o m onths a fte r com pleting the new constitution o f the Y ear III. Thus the underlying difference betw een sovereignty, sovereign dictatorship, and com m issarial dictatorship is th a t the la tte r tw o de­ pend on commissions w hile sovereignty is essentially o f an independent nature because it is not based on a specific commission, and does n ot have to have a tim e lim it. Schm itt’s definition and discussion o f dictatorship m ust by no means be view ed as an exhaustive contribution to the one big topic o f dicta­ torship98. H is treatm ent o f this subject is im portant to students o f political philosophy, fo r it enables them to analyze the types o f rule by the intentions o f the pow er holder as reflected in his actions. For constitutional law yers, too, the distinction draw n is crucial, and in the instance o f W eim ar the distinction betw een com m issarial and sovereign dictatorship had profound overtones. As was already pointed out, the •* *• N ot long ago, for example, Maurice Duverger in his pamphlet De la dictature (Paris: Julliard, 1961) distinguished two types of dictatorship: the technical and sociological. He calk the former “parasitaire,” because it is fomented by certain isolated segments in society (p. 19). The Algerian PutsA of May 13, 1958, was essentially an example of a technical dictatorship (p. 95). A sociological dictatorship, on the other hand, k caused by the discontent of an entire society (p. 19). Since a general dkcontent could not be detected in France proper, a sociological dictatorship did not exist there in 1960 (p. 18). Duverger’s categories are unfortunately tied too closely to the situation in Algeria and France and therefore they are somewhat impressionktic.

Chapter I : The Meaning of Dictatorship

8?

republican form o f governm ent w as b o ra under adverse conditions, and had, generally speaking, few supporters. In the w ake o f economic and political crises, the attention o f law abiding citizens w as focused on the president, fo r it was he w ho h ad been em powered b y the consti­ tution (A rticle 48) to undertake measures which w ould assure order in the country. H ow ever, th e question which arose w as: W hat w ere the constitutional rights and lim its o f a president during a crisis? I t w as in this context th a t Schm itt interpreted the role o f the president in die early W eim ar years as th a t o f a com m issariat dictator.

2. The Commiaearial Nature o f Article 48 Tw o different problem s are touched upon b y A rticle 48. Section 1 specifically refers to the individual G erm an states, and th e right o f the president to com pel each to carry ou t its duties (federal execution). Sections 2—4 are concerned w ith die d ictatorial pow ers which the president m ust assume if public security and order are threatened. Sec­ tion 1 is o f secondary interest and w ill be discussed in another chapter. Also section 5 w ill here be left aside and treated later as an illustration o f the great increase o f the president’s pow ers because A rticle 48 was not m ore clearly circum scribed by a special law as section 5 prescribed. H ence sections 2—4 are fo r us the center o f g rav ity now . Article 48 states: Section 2 If, in the German Reich, public security and order is considerably distuibed or endangered, the Reichspresident may undertake necessary measures in order to restore public security and order, and if necessary intervene with the aid of armed forces. For this purpose he may suspend, temporarily, in part or entirely, the basic rights as provided in Articles 114, 115, 117, 118, 123, 124, and 153. Section 3 All measures undertaken in accordance with sections 1 or 2 of this Article must be immediately reported to the Reichstag by the Reichs­ president. These measures are to be suspended if the Reichstag so demands. Section 4 In case of delay the state government may in its region undertake temporary measures as provided for in section 2. These measures are to be invalidated if the Reichstag so demands**.*• *• F. Giese, Die Reichsverfassung vom 11. August 1919 (6th ed.; Berlin: Carl Heymanns Verlag, 1925), p. 163.

P art One: Schmitt and the Weimar Constitution: 1921—1933

A rticle 48 was utilized m any times by President E bert to safeguard the W eim ar republic30. A lthough the intentions o f the fram ers o f the constitution w ere to use A rticle 48 in case o f political disturbances, its application was soon (O ctober 12, 1922) extended to include economic disasters31.3* Schm itt’s general concern betw een 1921 and 1924 was to arrest the disintegration o f the state m achinery (the arm y and the civil service) and to preserve the essential features o f the W eim ar system . T herefore he set fo r him self the specific task o f exploring the juristic possibilities which the W eim ar constitution offered in order to com bat crises. Thus Schm itt w ent in to a detailed discussion o f A rticle 48, especially the second section. In exam ining section 2 Schm itt raised and developed the follow ing points a t a convention o f jurists a t Jena in 1924: (1) are the enum era­ tions in sentence 2 o f section 2 m eant to lim it sentence 1 section 2? and, (2) w hat are the general lim its and possibilities under A rticle 483s? I t was Schm itt’s belief th a t it w ould be impossible to deal effectively w ith a state o f exception if the president were lim ited and prevented from encroaching upon all other articles, except those enum erated in sen­ tence 2s3. Proceeding from this point, S dunitt argued th a t sentences 1 and 2 o f section 2 contradict each other. Sentence 1 perm its the president to “ undertake necessary measures in order to restore public security and order, and if necessary intervene w ith the aid o f arm ed force,” w hile sentence 2 begins w ith the illogical phrase “ F or this pur­ 80 Because enabling acts were not always passed in time, the president could act solely on Article 48. Thus, for example, “out of the 150 — odd legislative measures published between October 13, 1923 and February 15, 1924 about 110 were issued by the Cabinet by virtue of the two enabling acts [of October 13, and December 8, 1923] and some 17 on the basis of Article 48.” Clinton L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948), p. 49. 31 "The old German state of war had nothing to do with economic distress. It was utilized not only primarily but exclusively to meet civil unrest. The procedures recognized under the state of war were administrative and not legis­ lative in nature. In the years before 1914 Germany knew little of unemploy­ ment, inflation, and other extremes of economic maladjustment whidi can imperil the order and even existence of a state as surely as can outright civil war.” Ibid., p. 42. 33 The points presented by Sdimitt were reprinted in full as an appendix to the 2nd edition of D in 1928. 33 D (1928), p. 216.

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89

pose he m ay suspend. . .”M a num ber o f basic rights. D id sentence 2 im ply, therefore, a lim itation o f the auth o rity given the president under sentence 1? Schm itt argued in the negative. H e traced the history o f A rticle 48 from its draftin g a t the C onsti­ tuent Assembly in 1919, and noted th a t sentence 1 was draw n up in­ dependently o f sentence 2, and th a t the la tte r was attached to the form er in an arb itrary fashion. O n January 3, 1919, Preuss had draw n up the original section which read: ‘“ T he Reichspresident can intervene . . . w ith the aid o f arm ed force and undertake necessary measures to restore public security and order'*’. The second sentence starting w ith “ For this p u rp o se. . . ” was draw n up in a different com m ittee and was attached to the original version o f sentence 1. O n Ju ly 5, 1919, die phrase dealing w ith arm ed force w as relegated to the last p a rt o f sen­ tence 1 “because one did no t w ant to m ention the m ost extrem e measure f ir s t. . .* .” B ut sentence 2 rem ained unchanged. Thus, “ ‘For this pur­ pose . . . ' does n o t . . . m ean: in order to intervene w ith the aid of arm ed force. B ut fo r the same reason . . . it also does no t m ean: in order to undertake necessary measures. B ut it does m ean: to restore public security and order” . Schm itt argued th a t the proper m eaning o f sen­ tence 2 is: “ For the purpose o f reestablishing public security and order the Reichspresident can undertake measures and he m ay suspend certain basic rights.” H e concluded by saying th a t sentence 2 says nothing of w hat can be done w ithout suspending basic rights in order to achieve the purpose in the concrete case36. The m ost th a t sentence 2 states is th a t “ if the measures o f the Reichspresident consist o f suspending basic rights, then the suspension is lim ited to certain enum erated rights” 37.78*4 84 “For this purpose. . . ” does not follow logically the phrase that precedes it: * . .. if necessary intervene with the aid of armed force.” Ibid., p. 224. 88 D (1928), pp. 224—225. 84 Ibid., pp. 225—226. 87 Ibid., p. 225. This interpretation of Article 48 section 2 that almost everything can be undertaken by way of measures was rejected by Anschutz, the leading commentator on the Weimar constitution. It was his contention that other articles may not be suspended. This opinion was shared by the majority of constitutional lawyers as well as by the government and the German Supreme Court. See: G. Ansdi&tz, Die Verfassung des Deutschen Reichs ( ll th ed.; Berlin: Verlag von Georg Stillke, 1929), pp. 252—253. Richard Grau and H . Nawiasky, the leading exponents of the legalistic view, maintained that with the exception of the seven articles which may be suspend­ ed, the other one hundred and seventy three articles of the constitution were

40

P art One: Schmitt and the Weimar Constitution: 1921—1933

Thus from die latitude** given to the president he may undertake, by way of measures, almost any steps he deems proper to restore public security and order. Since Schm itt's view w as th a t alm ost anything could be undertaken by w ay o f measures, w e m ay now answ er die second question, nam ely, w hat S dim itt considered to be th e general lim itations im posed by A rticle 48 section 2. T he m ost specific answ er is th a t the W eim ar constitution cannot be abolished by invoking A rticle 48, fo r A rticle 48 m ay only be understood w ithin th e general fram e o f the W eim ar constitution. Therefore the president cannot tu rn a republic in to a m onarchy by undertaking measures which w ould have th a t effect**. Furtherm ore, A rticle 48 provides fo r a basic institutional minimum which could neither be infringed upon o r abolished b y w ay o f meas­ ures. M ost im portant o f these institutions are: (1) the president, (2) the governm ent, and (3) the Reichstag. Section 2 sentence 1 asserts the president's com petence. B ut, Schm itt pointed out, "w h at th e w ord Reichspresident means is deduced . . . only from the co n stitu tio n . . ."**. Thus the president cannot, fo r exam ple, on the basis o f A rticle 48, extend bis period in office o r abolish his office. T he governm ent m ust also be preserved as an institution in view o f A rticle 50 which required countersignatures o f all orders and decrees w ithout exception and stated th a t All orders and decrees of the Reichspresident, also those affecting die army, need for their validity the countersignature of the Reichschancellor or die proper Reichsminister. By this countersignature responsibility is assumed41.

W ith regard to the Reichstag, Schm itt pointed out th a t its existence was also assured by virtue o f A rticle 54 which states th a t th e govem sacrosanct — enumeratio, ergo Umitatio — and insurmountable also for his measures. For a legal discussion of Schmitt's thesis (also E. Jacobi's viewpoint) and those of the legalists, see: Karl Schultes, Die Jurisprudenz des Reithspräsi­ denten noth Artikel 48, Absthnitt H der 'Weimarer Verfassung (Bonn: Ludwig Röhrsdieid, 1934), pp. 23 ff. ** The president's latitude was increased because a Reich law was never passed defining the details of Article 48 section 5 ("Details will be provided in a Reich law.*'). Giese, Die Reithsverfassung vom 11. August 1919, p. 163. » D (1928), p.242. 44 Ibid., p. 245. 41 Giese, Die Reithsverfassung vom 11. August 1919, p. 171.

Chapter I : The Meaning of Dictatorship

41

m ent m ust have its confidence4*. Furtherm ore, A rticle 48 section 3 also provides th a t measures undertaken m ust be reported to the Reichstag, and th a t they m ust be suspended if the Reichstag so demands. In the event o f a dissolution o f the Reichstag, A rticle 25 states th a t the presi­ dent m ust give a different reason each tim e he dissolves this body, and th a t new elections m ust take place w ithin sixty days. T he president, said Schm itt, "m ay n o t suspend o r extend” the tim e lim it o f the provi­ sions o f A rticle 25 section 2**. T he last significant point to be m entioned in this context is th a t the president, according to Schm itt, a t this tim e in 1924, could not, on the basis o f A rticle 48, decree form al law s, fo r th a t w ould contradict A rticle 68 which states in its section 2 th a t “T he R äch law s are passed by the Reichstag4*” . In other w ords, die president m ay m erely under­ take certain measures, b u t cannot prom ulgate laws. Schm itt argued th a t the v alid ity o f a m easure depends on its specific purpose. D ifferent situations dem and different measures4*. Thus laws are n o t dependent on p articu lar situations. T hey aim to be m ore general than just a tem porary expedient to m eet p articu lar situations. Schm itt's latitudinarian interpretation o f A rticle 48 m eant th a t in exceptional times the president m ust not be hindered in his exercise of pow er. T o restrict freedom o f action w ould ham per the president in his attem pts to elim inate crises. In discussing the legalistic and latitu d i­ narian approaches, C linton R ossiter stated th a t Schm itt's “ thesis was nearer the facts than w as the strict and legalistic point o f view ”* 44.64* « D (1928), p. 245. ** Ibid., p. 246. Section 2 of Article 25 states that "the new elections must take place at the latest on the sixtieth day after dissolution.” Giese, Die Reichsverfassung vom i l . August 1919, p. 115. 44 Giese, Die Reichsverfassung vom 11. August 1919, p. 204. See also D (1928), p. 250. This view did not prevail. Emergency powers were extended to the field of legislation. For a general discussion of this and related problems see Frederick Mundell Watkins, The Failure of Constitutional Emergency Powers under the German Republic (Cambridge: H arvard University Press, 1939), especially pp. 15—24. On the question of ordinance power of the government see Johannes Mattem, Principles o f the Constitutional Jurispru­ dence of the German National Republic (Baltimore: The Johns Hopkins Press, 1928), pp. 453 ff. « D (1928), p. 248. 46 Rossiter, Constitutional Dictatorship, p. 69. Edwin Jacobi supported Schmitt's interpretation.

42

P art One: Sdunitt and the Weimar Constitution: 1921—1933

The extension o f emergency pow ers to the legislative field w ould, in Schm itt's opinion, be pure usurpation by the president. This view point, as F. M. W atkins pointed out, never gained m any supporters47.84 I t is indeed curious th a t, on the one hand, the dom inant view declared each article except fo r the articles enum erated in A rticle 48 sacrosanct and, on the other hand, some o f the same people49 supported the extension of exceptional measures to the general legislative field so th a t they acquired the legal force o f ordinary legislation. B ut the evolution from a purely m ilitary and police state o f exception to an econom ic-financial one m ade it necessary th a t the president, as the m aster o f the state o f exception, should also receive legislative pow ers. This, how ever, was first recognized only a fte r 1929. I t m ay be noted th a t Schm itt's understanding o f the concept o f dictatorship in the context o f A rticle 48 did not have odious overtones. W hat he advocated was to an extent a variation on the them e o f the classical Rom an notion o f dictatorship. A t this early stage o f W eim ar’s history he did n o t yet envision fo r W eim ar a sovereign type o f dicta­ torship. A final p oint to be m entioned is th a t in 1960 the Bonn governm ent presented to the Bundestag a d ra ft o f an emergency law — N otstands­ gesetz. In the 1920's Schm itt, conform ing w ith the general term inology, alw ays spoke o f a state o f exception — Ausnahm ezustand. Today, how ever, the term "state o f emergency” rath er than "state o f excep­ tion” is preferred in Bonn. The reason fo r this preference m ay be ex­ plained, perhaps, by the psychological association o f the state o f excep­ tion w ith A rticle 48. I t m ay be stated th a t the odiousness which this A rticle subsequently assumed in W eim ar was due m ainly to popular misconceptions, sem i-educated w ritings and deliberate distortion o f the facts. H ence, this A rticle was fo r m any years a genuine taboo in the Bonn republic. The Basic Law o f Bonn (1949) had carefully elim inated everything rem iniscent o f A rticle 484*. I t is therefore surprising to read in the official Bonn governm ent declaration to this d ra ft o f a state o f emergency law th a t A rticle 48 was not the cause o f W eim ar's death. 47 Watkins, The Failure of Constitutional Emergency Powers under the German Republic, p. 19. 48 Among others, G. Anschütz, F. Giese, and F. Poetzsdi-Heffter. 48 Theodor Maunz, Deutsches Staatsrecht (15th ed.; München: C. H.Becfc’sche Verlagsbuchhandlung, 1966), p. 176.

Chapter I: The Meaning of Dicutorship

48

Article 48 was not able to prevent the end of the Weimar republic. Legend maintains, however, that it was the cause of its death. . . . But there can be no doubt today that without Article 48 the Weimar republic could not have existed for fourteen years. . .M.

In view o f this officiai declaration by the Bonn governm ent, Schm itt’s urgings, th a t in abnorm al times it was the duty o f the presi­ dent to utilize A rticle 48 to p u t an end to disturbances, appear in an­ other light. Therefore the legends diffused th a t S dunitt underm ined the W eim ar constitution — because o f his latitudinarian interpretation o f A rticle 48 — and paved the w ay fo r H itler, are erroneous.

M Das Gesetz für die Stunde der N ot: Materialien zur Auseinandersetzung über ein Sicherheitserfordemis (Bonn: Bundesministerium des Innern, 1961), p. 12.

Chapter I I

The Meaning of Sovereignty The second m ajor problem S dim itt was concerned w ith soon after his discussion o f die nature o f dictatorship was the concept o f sover­ eignty. Schm itt's celebrated and often quoted definition o f sovereignty sû te s th a t: Sovereign is he who decides on the state of exception1.

T o restore order and peace the sovereign m ay, a fter his declaration o f a s u te o f exception, infringe upon the existing constitutional and ordinary legal system. H e can, how ever, entrust a commissioner w ith full pow ers (i. e., to encroach upon some p arts o f the v alid legal system) to accomplish the same end, and this commissioner m ay become a com m issariat dictator. O nly the sovereign, how ever, and not the commissariat dictator, in Schm itt’s construction, m ay decide and declare a s u te o f exception. M any have com m ented on the nature o f sovereignty. The various views have been sum m arized by Professor Friedm ann. There have been those . . . who set out to prove the absolute sovereignty, first of a monarch, later of the State; there are those on the other side, who have fought the law-making monopoly of the State on behalf of corporate bodies within the State, such as estates, churches, corporations. Again, other writers have proclaimed inalienable rights of the individual against all interference by authority; finally, the fight between national and inter­ national sovereignty is a persistent theme of juristic controversy**.

L Dedrionism T en u Normativism (K elsen) Schm itt's decisionism derives its m eaning from his polemics against K elsen's pure norm ativism . Schm itt argued th a t in itself the norm is 1 PT, p. 11. * Wolfgang Friedmann, Legal Theory (3rd ed.; London: Stevens and Sons Limited, 1953), p. 415.

Chapter II: The Meaning of Sovereignty

46

insufficient and becomes actual only by decision and interpretation. The decision is n o t only a pure em anation and application o f the norm , but contains its ow n specific function. As such the juristic v alid ity o f a decision does n o t depend in an absolute m anner on the norm ativist correctness o f the decision. There are false decisions which, in spite o f th eir falsity, become juridically valid. Schm itt stated in this context th a t: Die Entsdieidung ist, normativ betradftet, aus einem Nichts geboren3.

T he anti-norm ativist polem ical m eaning o f this statem ent is crucial. O n this p articu lar p o in t Schm itt w as concerned w ith the question w hether a m om ent exists in which a judge can m ake a decision as to which law m ust be applied to a specific case. O ur interest does not center on this, b u t on the decisionist nature o f sovereignty. Decisionism, in the general sense o f Schm itt’s understanding o f the concept, refers to tw o related points: (1) the capacity o f an individual to establish order, peace and stability from a chaotic situation, and (2) th a t person's responsibility to safeguard the new ly created stable situation. Should order, peace and stability break dow n, it becomes the task o f this p articu lar individual to undertake all necessary measures to reestablish order. Both, Bodin and H obbes, influenced Schm itt profoundly on his understanding o f sovereignty. T he decisionist elem ent in Bodin found expression in his answ er to the question: T o w hat extent is the sover­ eign bound by the estates? H e replied th a t his agreem ents w ith the estates are binding, b u t only as long as the sovereign can perform his duties. In exceptional moments, according to Bodin, agreem ents lapse4.5 H ence Bo din’s m ajor accom plishm ent w as, in Schm itt's view , to in­ corporate the decisionist elem ent in to his concept o f sovereignty*. Decisionism to Schm itt also m eant H obbes’ auctoritas, non veritas fa cit legem. H e w ho has authority (authority and pow er are combined here*) can m ake die law s. T he sovereign, by v irtu e o f his authority, 3 PT, p. 42. Italics added. 4 J. Bodin, Les six Livres de la République (Fr. ed.; Chez Jacques du Puys, 1583), p. 215. 5 PT, p. 14. 3 Although authority is always present in the concept of power by virtue of the power holder’s rule, it does not necessarily follow that authority is based on power. For example, authority may rest, according to Schmitt, on tradition.

46

P a n One: Schmitt and the Weimar Constitution: 1921—1933

can also dem and obedience. B ut it is no t alw ays the legitim ate sover­ eign, according to H obbes' construction, w ho possesses authority. The im plication is th a t the sovereign who cannot protect, has no rig h t to dem and obedience. A nd this is exactly w hat H obbes m eant by the "m utual R elation betw een Protection and Obedience7,” which Schm itt has never tired o f citing. In am plifying the concept o f decisionism which he had adopted from H obbes, the central question Schm itt alw ays asks is: quis judicabitf o r in a m ore philosophical language: quis interpretabiturf E very religious, philosophical, o r m oral phrase needs interpretation. W ho is the person who concretely decides? Schm itt, in his concern w ith H obbes, developed the m eaning o f H obbes' decisionism (to which Schm itt also adheres to essentially) in a num ber o f sem inar discussions a t Ebrach in 1960. A ccordingly* * Open for Transcendence

die axis

Jesus is die Christ Quis interpretabitur? Auctoritas, non veritas! Obedience and protection

v

y

\ a n d /

Protection and obedience

(5) (4) (3) A the axis (2)

(1 ).

This construction follow s w hether num ber 1 (reading from the to p dow n) reads th a t "Jesus is the C hrist" o r some other m axim as "L iberty, E quality, F ratern ity ” . W ho interprets — quis interpretabiturf — w hat is said in num ber 1? T he answ er is contained in the axis: auctoritas, non veritas. A uthority is here com bined w ith potestas directa and n o t indirect pow er. Those in possession o f potestas directa dem and the obedience o f individuals in exchange fo r protection. In looking a t this diagram , reading upw ards, the starting point is the individual. H e obeys only those w ho can protect him . This is alw ays the potestas Carl Sdunitt, Verfassungslehre (3rd ed.; Berlin: Dundter 6c Humblot, 1957), p. 75. Hereafter: V. 7 T. Hobbes, Leviathan, or the Matter, Forme, and Power of a Common­ wealth Ecclesiasticall and Civtll (Introduction by Pogson Smith; London: Oxford University Press, 1952), p. 556. See also: D, pp. 22—23. • BP (1963), pp. 121—123.

Chapter II: The Meaning of Sovereignty

47

directa. T he source which possesses potestas directa also possesses authority: the axis. By possessing both — potestas and auctoritas — this source is in the position to in terp ret w hether “ Jesus is the C hrist," “L iberty, E quality, F ratern ity ," o r anything else is, in concrete, “ veritas” . R ather than advancing legitim ist argum ents in the m onarchical sense, o r the cause o f a potestas indirecta in the clerical sense, Schm itt was m ainly concerned w ith the established system, and w hether it was capable o f assuring order and peace. From this conviction Schm itt, bearing the W eim ar republic in m ind, w ent to considerable lengths in urging the creation o f a strong authority and a strong state to overcome the constant crises. A t this early stage, how ever, he was concerned m ainly w ith the decisionist concept in legal theory: to break open Kelsen’s norm system by including the exception w ithin it. Schm itt argued th a t the decisionist elem ent was alw ays present in Bodin and H obbes, but th a t it was lost in the relatively stable period of the eighteenth century*. T he antecedents o f m inim izing the decisionist elem ent in sovereignty m ay be found, according to Schm itt, in Locke’s theoretical structure which aim ed a t subjugating sovereign pow er to legal lim itations10. The eighteenth century gradually saw the victory o f Locke’s idea, and, also, o f M ontesquieu’s notion o f the separation o f pow ers. But the attem pt to subjugate sovereign pow er to legal lim itations was n o t an acute problem in G erm any until the la tte r p a rt o f the nine­ teenth century* 11. The question then was, w ho is the sovereign: the • D, pp. 24 ff. » Ibid., pp. 41.102— 103,120. 11 Rupert Emerson, State and Sovereignty in Modem Germany (New Haven: Yale University Press, 1928). Mr. Emerson pointed out that Wilhelm Eduard Albrecht in a review of a work by Maurenbrecher in 1837 asserted the need “for establishing the concept of the State-person in the very center of public law” (p. 52). Geiber not only took over Albrecht’s notion of stateperson, but went on to deny “that the concept of sovereignty had any connection with the position of the monarch” (p. 54). The right of the “monarch is not the free right of an individual to will as he chooses, but is bound by the institutional character of monarchy, as defined in the constitution of the particular State” (p. 55). Sovereignty as the personal attribute of the ruler was denied by P. Laband who believed the state to be “the sovereign person clothed with legally absolute rights over all its members, and as the source from which all public powers were derived” (p. 57). G. Jellinek, on the

48

Part One: Schmitt and the Weimar Constitution: 1921—1933

monarch personally o r the state as a special en tity , the juristic person­ ality o f the state? T he juristic personality theory o f the state assumed th a t the state constituted a collective person to w hidi all pow er belonged rath er than to the person o f the king. The im plication was th a t pow er was no longer concentrated in one person. This construction finally paved the w ay fo r denying th a t sovereignty necessarily resided a t any place in the state. This specifically G erm an controversy con­ cerned itself w ith w here sovereignty resided and n o t the nature of it. But sovereignty as such was n o t y et denied. The denial as such came from H . K rabbe, and, fo r the purpose of this study, the im portant legal theorist, H . Kelsen. Since sovereignty is essentially a political concept, Kelsen attem pted to sk irt its political nature by his developm ent of a pure theory o f pure law . H is theory denied any content w ithin the fram e o f jurisprudence. “ Ideals o f justice m ust be a m atter o f political science. A pure theory o f law m ust be uncontam inated by politics, ethics, sociology, history19.” The task of legal theory in K elsen's construction is “ to clarify the relations be­ tw een the fundam ental and all low er norm s,” 19 in other w ords, the concretization from a basic norm , G rundnorm , to all low er form s of law . The question which arises is: H ow did the basic norm come about? To this Kelsen does no t give an explicit answ er, although he w ould agree th a t potestas, non veritas fa cit legem. O nce a decision is taken w ith regard to any legal system then his theory o f pure law is appli­ cable. Professor Friedm ann observed, therefore, th a t the sovereignty o f parliam ent in “E ngland is a fundam ental norm , no m ore logically deducible than th a t the com m and o f the Führer was the suprem e legal authority in N azi G erm any o r th a t native tribes obey a w itch-doctor” 14. To the question: C an a pow er-holder in France o r in Sw itzerland for­ bid the inhabitants to read o r w rite, o r can he dem and th a t one thou­ sand citizens be m urdered every Sunday? Kelsen replied th a t fo r the positivist it is essential to separate law (Recht) from m orality. H e * other hand, advocated restricting "the omnipotent will of the State . . . in order that the sway of law might be extended to its utmost possible limits” (p. 60). For the various implications and contradictions of this theory see the introduction by George H . Sabine and Walther J. Shepard to Hugo Krabbe’s, The Modem Idea of State (New York: D. Appleton and Company, 1922). ** See Friedmann, Legal Theory, p. 112. « Ibid., p. 114. u Ibid.

Chapter II: The Meaning of Sovereignty

argued th a t from the legal positivist view point it is o f no concern to him w hether o r n o t legal norm s exist th a t force citizens to be p u t to death1*. In view o f Schm itt’s concern w ith the decisionist aspect in sover­ eignty and his interpretation o f A rticle 48, he also addressed him self to the follow ing related questions: (1) C an a state o f exception be subsumed to a general norm ? and (2) W hat happens in a state o f exception? Kelsen and other positivist constitutional law yers generally m aintain th a t law is essentially norm 1* and th a t the theory o f jurisprudence, including constitutional theory, pertains to norm s only. A contrary opinion is held by Schm itt. A ccording to him , each norm presupposes its norm al situation, and becomes meaningless when this norm al situa­ tion ceases to exist. F or him the state o f exception reveals w hat the routine o f norm alcy veils17. In Schm itt’s view it is im perative th a t the constitutional law yer recognize the exception as a juristic problem , despite the fact th a t the exception, according to Schm itt, cannot be subsumable to a norm and therefore strictly circum scribed18. The task o f the constitutional law yer is to keep his eyes open when faced w ith the exception and n o t shirk the range o f juristic possibilities explicitly o r im plicitly inherent in every constitutional system, assuming th a t it is n o t suicidal. C oncretely speaking, in die context o f the W eim ar constitution and Schmitt’s w ritings o f the early 1920's, a p oint to be scrutinized by the ju rist w ould be the extent to which the legal system m ay be encroached upon w ithout endangering its survival. Schm itt criticized Kelsen fo r belonging to the K antian trad itio n , and since K an t believed th a t ’’exceptional right is no right a t a l l . . . ” it becomes self-evident th a t Kelsen “ does no t know w hat to do w ith the state o f exception. . .” M. Because Schm itt hinges his definition o f sover-•* 15 Hans Kelsen, Der Staat als Übermensch: Eine Erwiderung (Wien: Julius Springer, 1926), pp. 5—6. Laws are nothing else than norm-relations. In other words, “the law unfolds in a gradual process from the highest norm, whidi is also the most abstract, general and purely norm-giving, to the lowest, which is completely individualised, concrete and executive.” Friedmann, Legal Theory, p. 118. " PT, p.22. *• Ibid., p . 12. *• In discussing the general existence of a hole in die Prussian constitution and law and referring specifically to the Prussian budget conflict of the 1860’s, 4 Schwab

50

Part One: Schmitt and the Weimar Constitution: 1921—1933

eignty on the sovereign’s pow er to m ake the decision about w hether a state o f exception exists, Kelsen is found a t the opposite pole, n o t only avoiding the problem o f the exception, b u t alw ays trying to subject sovereignty to norms. D ie Souveränitätsvorstellung, said Kelsen, muss radikal verdrängt werdet?*. Schm itt could reply to this assertion th a t Kelsen ignores the ever present possibility o f a state o f exception. K el­ sen, on the other hand, could justly claim th a t Schm itt does not know w hat to do w ith the norm al situation. H ere tw o types o f thinking are apparent. This contrast betw een Schmitt and Kelsen reveals a basic difference in the approach to the question o f sovereignty. To the question o f w hat happens in a state o f exception Schm itt ob­ served th a t the sovereign decides whether the extreme case exists, as well as what should happen in order to put an end to it. He [the sovereign] stands outside the normally valid legal order and yet belongs to it, because he is competent to make the decision as to whether the constitution can be suspended entirely21. Furtherm ore, A normal situation must be created, and the sovereign is precisely he who definitively decides whether this normal situation actually exists. . . . [Thus] in the same manner as in the normal case, the independent moment of the decision can be pushed bade to a minimum, so in the exceptional case die norm is pushed back**. W hat happens to the sovereign in norm al times? From Schm itt’s dis­ cussion it m ay be concluded th a t in norm al tim es the sovereign is, so to speak, slum bering, and he is suddenly aw akened a t a crucial m om ent: nam ely, a t the borderline betw een norm alcy and the state o f exception. A t this early stage o f W eim ar’s existence Schm itt lam ented the fact th a t the president was not as pow erful as he w ould like him to be. Sub­ sequently he observed th a t the president o f a republic could never be Anschutz summed up the attitude of positivist constitutional lawyers by declaring: Das Staatsrecht hört hier auf. Georg Meyer, Lehrbuch des Deut­ schen Staatsrechts (7th ed.; Edited by G. Anschutz; Munich: Verlag von Duncker & Humblot, 1919), Vol. III, p. 906. *° Hans Kelsen, Das Problem der Souveränität und die Theorie des Völker­ rechts (Tübingen: Verlag von J. C. B. Mohr [Paul Siebeck], 1920), p. 320. See also: Francis Rosenstiel, Le principe de 'supranationalité': essai sur les rapports de la politique et du droit (Preface by Julien Freund; Paris: Éditions A. Pedone, 1962), pp. 31, 34. » PT, pp. 12—13. ** Ibid., pp. 20,19.

Chapter II : H ie Meaning of Sovereignty

51

sovereign in the monarchical sense9**. However, despite the limitations imposed upon him (i. e., Article 48 section 3, Article 50, etc.94), in exceptional times, according to Sdim itt’s interpretation of Article 48, he could, nevertheless, exercise his power adequately to restore order.

2. The Criterion o f Politics: Friend and Enemy Kelsen’s attem pt to banish politics from jurisprudence found its most extreme antithesis in Schmitt's concept of politics. H e observed th at politics is a sphere which is constantly dominated by the necessity of drawing distinctions between friend and enemy (Freund und Feindf* . This criterion of politics was not only an attem pt on Schmitt's p art to infuse politics into jurisprudence, something which Kelsen had attem pted to eliminate, but also to reduce international relations essentially to an “ either-or” formula. Schmitt observed th a t not every antagonism, rivalry or antipathy necessarily constitutes enmity. I t was in this context th a t he drew attention to the clearcut distinction draw n by the Greeks and Romans between the private and public enemy: *x4p4ç and «oXépioç, inim icus and hostis. Even the precept “ love your enemies . . . " (diligite inim icos vestros) (M att. 5, 44; Luke 6, 27) clearly refers to the private enemy, inim icus, and not the public one, hostis29. Public enmity, ac­ cording to Schmitt, is not a private m atter, but in our epoch exclusively a concern of the political unit, the national sovereign state. The public enemy does not have to be morally evil, he does not have to be esthetically ugly, he does not have to appear as an economic competitor, and it c a n . . . even be advantageous to have business dealings with him. He is nevertheless the other-one (Andere), the stranger. . .*7.

O n the international level, just as on the domestic scene, the extreme outcome of enmity is w ar. Both can be ignited by such factors as « D (1928), p. 237. « Ibid. (1921), p. 201. *s BP (1932), p. 14. *® BP, pp. 16—17. See also: Julien Freund, L’essence du politique (Paris: Éditions Sirey, 1965), pp. 442 ff. « BP, p. 14.

52

P art One: Sdunitt and the Weimar Constitution: 1921—1933

religion, economics o r m orality. As these non-political conflicts in­ crease in intensity, according to Schmitt, they become political98. Turning his attention to the political nature o f the s u te , Schmitt said th at “ as long as a people exist in the political sphere, they must, even if only in the most extreme case . . . determine fo r themselves the distinction between friend and enemy. In this lies the essence of their political existence”2*. I f the sovereign entity, the s u te , cannot a t a crucial moment distinguish friend from enemy, then it has ceased to exist in the political sphere and, Schmitt added, there w ill always be another state which will assume this burden o f politics. The protector then determines who the enemy is in view o f the perpetual connection between Hobbes* protection and obedience80. In speaking of a protector assuming the right to distinguish fo r a weaker state friend from enemy, Schmitt h ad already veered in the direction of his Grossraum concept. Schmitt's Grossraum idea which he developed very sketchily in 1939 (as distinguished from the N azi Lebensraum policy) is modelled, as has been already s u te d in the In tro ­ duction, on the M onroe D octrine81. Because Germ any was the dom inant political entity in C entral Europe Schmitt advocated Germany's right to make decisions involving the entire European continent88. Thus w hat the U nited S û tes had succeeded in accomplishing in the Western hemi­ sphere, and w hat Jap an was aiming to accomplish in Asia, Schmitt urged fo r Germany. Schmitt's Grossraum principle did no t obviate the existence o f na­ tional boundaries — something which was im plicitly absent from the Lebensraum principle. Moreover, Schmitt s u te d in 1939 th a t w arfare between national sovereign sû tes — in terms o f Grossräume — con­ tinued to be subject to agreed upon rules and regulations governing conflicts88. Since certain rules had to be adhered to, his understanding * » Ibid., p. 26. *• Ibid., p. 38. *• Ibid., p. 40. u For a discussion of the different outlooks on geopolitics, and the N azi concept of the Monroe Doctrine, see Franz Neumann, Behemoth (2nd ed.; New York: Oxford University Press, 1944), pp. 136 ff. ** Carl Schmitt, "Grossraum gegen Universalismus" (1939), Positionen und Begriffe im K am pf m it Weimar — Genf — Versailles 1923— 1939 (Hamburg: Hanseatische Verlagsanstalt, 1940), p. 302. ** Carl Schmitt, "Neutralität und Neutralisierung: Zu Christoph Steding *Das Reich und die Krankheit der europäischen K ultur"’ (1939), Positionen und Begriffe. . . , p. 285.

Chapter II: The Meaning of Sovereignty

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o f the public adversary since 1927 was in the “enemy** radier than “ foe** context*4. T he German term Feind can be translated as enemy o r foe. H ere we encounter a difficult translation problem th a t is n o t only linguistic, but the symptom o f a much more profound problem. I t indicates an ambiguity in the concept as well as in Schmitt’s thinking. T o clarify this ambiguity a deviation from a chronological approach to refer to some of Schmitt’s post-W orld W ar I I writings is required. The "enemyfoe” distinction underlies particularly Schmitt’s study D er N om os der Erde im Völkerrecht des Jus Publicum Europaeum **. In it Schmitt was not y et entirely conscious o f die linguistic problem, and therefore con­ ceptually there are a num ber o f ambiguities in so fa r as the “ foe” and “enemy” often flow into one another. This no longer holds true for some o f his most recent writings in which Schmitt is aw are o f the ambiguities in the Feind term**. U ntil very recendy the “ foe” term in English was considered anti­ quated and utilized m ainly in a rhetorical sense” , while the “ enemy” term was usually utilized to designate an individual o r a national sover­ eign s u te against whom w ar is waged by another national sovereign s u te w ithin the fram e o f international law**. As will be shortly seen, since the 1940*s the “ foe” term has lost some o f its archaic meaning**. In the M iddle Ages the public “ foe” on an emotional level was, as a rule, equated w ith the devil, and in fighting him no quarter was given.94*7 94 Schmitt’s Begriff des Politischen appeared first in the form of an article in 1927. Archiv fur Sozialwissenschaft und Sozialpolitik, Band 58, H eft 1, pp. 1—33. 99 (Köln: Greven Verlag, 1950). 99 See the Foreword to the 1963 edition of Schmitt’s BP, pp. 17—19; Carl Schmitt, Theorie des Partisanen: Zwischenbemerkung zum Begriff des Politi­ schen (Berlin: Dundcer 8c Humblot, 1963), pp. 55 ff. 97 According to The O xford English Dictionary (Oxford: At the Clarendon Press, 1933) a foe in early ose was "an adversary in deadly feud or mortal combat.” Vol. IV, p. 379. 99 The dictionary cites a sentence from Thomas Jefferson which illustrates the difference between “foe” and "enemy” : "Enemy goods are lawful prize.” Ibid., Vol. I ll, p. 166. 99 For a fuller treatment of die "enemy-foe” distinction see George Schwab, "Enemy oder Foe: Der Konflikt der modernen Politik,” Epirrhosis: Festgabe für Carl Schmitt (Edited by H . Barion, E.-W. Bödcenförde, E. Forsthoff, and W. Weber; Berlin: Dundcer 8c Humblot, 1968), Vol. II, pp. 665 ff.

64

P a n One: Schmitt and the Weimar Constitution: 1921—1933

H ence public conflicts were total in so fa r as no distinction was draw n between combatants and noncombatants, among other differentiations. The emergence o f national sovereign states in Europe was accompanied by the gradual secularization of w arfare, and it was in this context th at the “ foe” term gave w ay to the "enemy” . Practically, this mani­ fested itself by subjecting actual conflicts among national sovereign states to certain rules of the game by m ultilateral agreements whidi, incidentally, also perm itted the existence of neutral national sovereign states4*. W ith the decline of the epoch of the national sovereign state and the gradual emergence of another, the enemy concept is again beginning to diange*41*. Whereas prior to the emergence of national sovereign states the "foe” on the emotional level was equated w ith the devil, the new "foe” is no longer the Christian devil. In Communist theory, accord­ ing to Schmitt, the entire bourgeois capitalist system is condemned and the "foe” is now the “ class-foe” . Thus, Schmitt argued, the eighteenth and nineteenth-century European international law order which care­ fully circumscribed w arfare became undermined43. As has already been pointed out, Schmitt's understanding o f the public adversary prior to W orld W ar II was largely consistent w ith the "enemy” rather than “ foe” concept. Therefore Professor Strauss' suggestion in 1932 th a t Schmitt's status naturalis was w arfare among nations4* cannot be supported, for such a state cannot exist as long as certain rules are explicitly recognized and adhered to. From Schmitt's writings in general it is not hard to deduce th a t his status naturalis is very much akin to Hobbes'. Schmitt's state of nature is civil w ar (such wars are not subject to any rules and regulations — except philosophi­ cal ones), and because of his fear of violence, Schmitt is always found on the side advocating order and law. Because Schmitt's friend-enemy distinction is only a criterion and n o t a definition of w hat enmity constitutes a t any given moment he has 4® BP (1963), pp. 10—11. 41 See Schmitt’s discussion in Der Nomos der E rde. . . , pp. 285 ff. ö Carl Schmitt, Theorie des Partisanen. . pp. 56—57. 43 Leo Strauss, “Anmerkungen zu Carl Schmitts ‘Begriff des Politischen’,” Archiv für Sozialwissenschaft und Sozialpolitik, Band 67, H eft 6, August/September 1932, p. 737.

Chapter II: The Meaning of Sovereignty

55

been accused o f nihilism44. An argument m ay be advanced — but not from Schmitt’s friend-enemy criterion alone — th a t in view o f his out­ look on the uniqueness o f historical events, and the fact th a t we have not detected in Schmitt’s writings (after he separated himself from the Catholic church in the middle 1920’s) a basic set o f eternal values to which he adheres, he m ay be classified as an adherent, to some extent, o f the “ historicists”. According to Professor Strauss, the “ historicists” m aintain th a t “ all human thought is historical and hence unable ever to grasp anything eternal”45*. This inability o f theirs is equated by Strauss w ith nihilism45. From Strauss’ viewpoint Schmitt may certainly be called a nihilist. H ow ever, in coming down to the realm of the actual it becomes quite evident th a t Schmitt is anything but a nihilist. Although the crises in W eimar have usually been the starting points for his legal and political ideas, his aim was invariably to assure order, peace and stability. N ow here in his writings can one detect a desire on his p a rt to perpetuate crises as a means of escaping the tediousness of everyday bourgeois existence.

3. Political Unity versos Pluralism (Laski) Schmitt’s polemics against normativism and his criterion of politics paved the w ay for his polemics against Laski’s pluralism. The back­ ground o f this attack was furnished not only by the success o f nor­ mativism in banishing politics from jurisprudence, but also by some tendencies of a so-called organic theory of the state which could be found in Gierke’s doctrine of association. According to this theory the state was equated w ith all other associations in so fa r as all were in effect p u t on the same level47. 44 See Heinz Laufer, Das Kriterium politischen Handelns: Versuch einer Analyse und konstruktiven Kritik der Freund-Feind-Unterscheidung auf der Grundlage der Aristotelischen Theorie der Politik. Zugleich ein Beitrag zur Methodologie der politischen Wissenschaften (Würzburg: Unpublished Ph. D. Dissertation, Bayerische Julius-Maximilian-Universität zu Würzburg, 1961), p. 296. 44 Leo Strauss, Natural Right and History (2nd ed.; Chicago: The Univer­ sity of Chicago Press, 1957), p. 12. 44 Ibid., p. 5. 47 For a detailed discussion and interpretation of Gierke in the context of nineteenth-century German constitutionalism see Ernst-Wolfgang Böckenförde,

56

P art One: Sdimitc and the Weimar Constitution : 1921—1933

In a lecture which Schmitt delivered in honor of H ugo Preuss on Jan u ary 18, 1930, he rejected Gierke’s attem pts to place the state on sudi a level*48*54. Sdim itt noted th a t Gierke’s disciple, H ugo Preuss, similarly stressed the equality of all associations, among which the state was only one association. But, Sdim itt continued, Preuss did not con­ ceive of the state in an entirely pluralistic sense. H e understood it to represent national unity and therefore it still remained the decisive entity48. The culmination o f the organic theory of the state found expression in G. D . H . Cole’s and Laski's theory of pluralism. Despite die fact th a t neither Cole’s nor Laski’s understanding o f pluralism was well known in W eimar Germany, a case study m ay be made by showing the extreme consequences of pluralism in W eimar. In tracing the changed nature o f the state Sdim itt observed th a t in the seventeenth century the sovereign state was the magruts hom o90. The crucial point o f H obbes' construction o f the theory of state, according to Sdim itt, was his trans­ fer to the magnus hom o the Cartesian notion of man as mechanism w ith a soul81. Subsequently the personal element was gradually draw n into the mechanization process and drowned in it89. As a result the state slowly became a mere mechanism or apparatus devoid o f almost all human qualities88. As an almost neutral apparatus the different political parties in Germany were able to draw upon the state's services fo r their particular ends84, and as such the traditional national sovereign state as the realm of objective reason became the victim o f p artial interests88. Die deutsche verfassungsgeschichtliche Forschung im 19. Jahrhundert: Zeitge­ bundene Fragestellungen und Leitbilder (Berlin: Dundcer & Humblot, 1961), pp. 147 ff. 48 Carl Sdunitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre (Tubingen: Verlag von J. C. B. Mohr [Paul Siebeck], 1930), p. 15. 48 Ibid. 60 Carl Schmitt, Der Leviathan in der Staatslehre des Thomas Hobbes: Sinn und Fehlschlag eines politischen Symbols (Hamburg: Hanseatische Verlags­ anstalt, 1938), p. 99. 6» Ibid., pp. 48—49. 88 Ibid., p. 54. •* Ibid., p. 61. 54 Ibid., p. 63. 66 Carl Schmitt, "Staatsethik und pluralistischer Staat” (1930), Positionen und Begriffe. . . , pp. 133—134.

Chapter II : The Meaning o f Sovereignty

57

Is Schmitt's notion o f the state as a sphere of objective reason akin to Hegel’s? N o. The state for Hegel is “ the m ardi of God in the w o rld . . and “the Estates stand between the government in general on the one hand and the nation broken up into particulars (people and associations) on the other” 57. Schmitt’s understanding o f the state as a sphere o f objective reason is its capacity to distinguish friend from enemy, and the state's ability n ot to succumb to civil society and as such to serve the entire nation rather than just sections o f it. In reflecting upon the nature of states in 1931 he observed th a t only strong states can afford to be liberal democracies5*. Such states, he implied, can perm it themselves the luxury o f tolerating opposition parties. By implication, therefore, weak states must be authoritarian to be able to distinguish friend from enemy and assure domestic order. Schmitt inferred in his writings th a t the condition o f his acceptance of certain political parties and parliam ent w ould be, as in the case of Donoso Cortés, th a t they be subordinate to the sovereign — in the case of W eimar, the popularly elected president — and united w ith the sovereign in seeking the solutions necessary fo r the welfare o f the entire society radier than just sections o f it. O nly in the context of rescuing the remnants of the W eimar state from the onslaught o f the various political parties may one understand his polemics against Laski's pluralism. Schmitt specifically attacked Laski's attem pt to debase the state as the highest political entity by perm itting individuals to have a plurality o f loyalties55. According to Laski's theory of pluralism die individual m ay be linked to a variety of associations to which his personality attracts him. You must on this view admit that die State is only one of the associations to which he happens to belong, and give it exacdy that pre-eminence — and no more — to which on die particular occasion of conflict, its possibly superior moral claim will entide it**. *• J. W. F. Hegel, Philosophy of Right (Translated with notes by T .M . Knox; Oxford: At die Clarendon Press, 1953). Addition to paragraph 258, p. 279. 57 Ibid., paragraph 302, p. 197. ** Carl Schmitt, “Franz Bid,” Frankfurter Zeitung, March 22, 1931. 6» BP, p. 29. *• Harold J. Laski, Ststdies in the Problem of Sovereignty (New Haven: Yale University Press, 1917), p. 19.

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P art One: Schmitt and the Weimar Constitution: 1921—1933

Schmitt attacked this theory on the ground th a t it denied the sover­ eign nature of the state*1. Faced w ith pluralist attacks Schmitt reasserted the monistic theory by endowing the state w ith the summa potestas. Although sovereignty is essentially a political concept, according to Schmitt, he complained th a t while Laski constantly spoke about the state, politics, sovereignty and the government in Studies in the Prob­ lem o f Sovereignty (1917), A uth o rity in the M odem State (1919), The Foundations o f Sovereignty (1921) and A Gram m ar o f Politics (1925), nowhere did he a t any time describe the meaning of politics*9. W hy? The view of one Laski commentator is th a t in the period between 1914 and 1925 it was Laski’s desire to prevent the force of the state from being concentrated at any single point within i t . . . . [This] leads him to attack the idea of the state’s sovereignty; he wants to see power split up, divided, set against itself, and thrown widespread among men by various devices of decentralization, and he wants to be certain that the civil, economic, and social rights of individuals and groups are ensured against the encroachments of those who exercise power**.

But further on we learn Laski's reason. H e w ould not have been averse “ to a strong, or even sovereign state", according to this Laski commentator, if the labor movement were to cease being “ a m inority group struggling against the pow er o f a hostile behem oth. . .”**. It is clear, therefore, th a t Laski’s aim was to minimize bourgeois political influence as long as the bourgeoisie remained in power. O f interest to note, however, is th a t Schmitt included in the list of books Laski's A Gram m ar o f Politics (1925), in which Laski defined the state as “ an organization for enabling the mass of men to realize social good on the largest possible scale” 45. Hence we are confronted w ith a shift in Laski's view, namely, his adoption of a more positive attitude tow ard the state by assigning to it a greater central role. « BP, pp. 28—29. «* Ibid., p. 28. ** Herbert A. Deane, The Political Ideas of Harold / . Laski (New Y ork: Columbia University Press, 1958), p. 17. •« Ibid., pp. 19,20. ** Harold J. Laski, A Grammar of Politics (London: E. George Allen and Unwin, 1925), p. 25. During the 1930’s Laski rejected the doctrine of plural­ ism altogether.

Chapter II: The Meaning of Sovereignty

W hy did Schmitt attack Laski's theory of pluralism in 1927, despite the fact th at by then Laski could no longer be called a pluralist? Laski's theory was only one of a number of pretexts for Schmitt's essay on politics. Therefore the lapse of time — between Laski’s pluralist outlook and his post-pluralist attitude — was o f no concern in Schmitt’s prim ary aim: to attack the pluralist denial o f the superiority of the state. The nature of the state which emerges thus far, as a result of Schmitt's polemics against Kelsen's normativism and Laski’s pluralism, and Schmitt’s criterion o f politics, is monistic: the state as the decisive entity must stand above all other entities. But this kind o f state cannot exist w ithout a sovereign. Schmitt’s sovereign has many of Bodin’s attributes, for example, sovereign power th at is highest, indivisible and absolute. The crucial difference between Bodin and Schmitt is th at Schmitt does not advance dynastic arguments, and reflects Hobbes’ influence. The difference between Hobbes and Schmitt is th at the former does not conceive the state to be a sphere of objective reason entirely**. (Hobbes* thinking is quite systematic and is neither historical nor phi­ losophy o f history.) H ere Schmitt comes nearer to Hegel, w ith the m ajor exception th a t Schmitt does not adopt Hegel's system, nor does he entertain the assumption th at reason unfolds in history and th at history has a universal goal. Schmitt limits his horizon to his own epoch, th a t of the European national sovereign state which is a realm of objective reason th a t p ut an end to the religious wars. One irrational element appeared in Schmitt’s otherwise quite rational argument for the necessity of a strong German state. In his attack on pluralism's influence in Germany, and an earlier (1923) implied attack on the M arxist-Leninist inevitability theory o f a one w orld system*7, Schmitt introduced the concept o f the myth. O f interest to note here is his debt to Georges Sorel. But Schmitt’s distaste for the “ general strike,” and Sorel’s M arxist interpretation in general led him to reject Sorel’s m yth of the proletariat. Instead, he made the point th a t in a conflict between national feelings — the state as the God — and the M Were one to employ Hegel’s terminology then we could safely say that Hobbes’ state is not concerned with the realization of a universal idea, but is mainly concerned with the safeguarding of the individual’s "subjective partic­ ularity.”

« G G L , pp. 53 ff.

«0

P art One: Sdunitt and the Weimar Constitution: 1921—1933

proletarian image of the bourgeois class, die form er is victorious68. H ie state as an organ has a much more forceful mythical attraction to most people, according to him, than any kind of international movement. To support his point Sdunitt pointed to Mussolini's victory in Italy, and stated th a t Mussolini, by having created a strong national state, showed th at the m yth o f the proletariat is ineffective66.

«• Ibid., p . 64. •• Ibid., pp. 64—65.

Chapter U l

The Meaning of Democracy and Liberalism In the previous d iapter chronology was sacrificed for systematic continuity. N ow we must return to the crisis year 1923. This w ill be followed by the relatively calm years between 1924 and 1929. Both, the Communists and the N azis, lost heavily in the election of Decem­ ber 1924. According to H alperin, the decline o f the tw o extremist groups was proof of die change th a t had come over the German economic scene1. Since W eimar's b irth and throughout its entire existence there were m any political parties which did n o t accept the new democratic system, nor did all those elements th a t were against democratic legitimacy favor a return to monarchical legitimacy. N either the Communists nor the N ational Socialists were interested in either of these alternatives. Even m any Socialists considered the republic only a means to an end. Their favorite slogan was: Republik, das ist nicht viel, Sozialismus ist das Ziel**. By 1923 Schmitt had already begun to believe th at com parative stability could not be assured in Germ any for any length o f time because large segments of the population were either apathetic tow ard or actively opposed to the W eim ar system. T o find the healthy characteristics o f W eimar, Schmitt began to explore the nature o f its constitution from the view point o f the political ideas contained in it. Hence in a hastily w ritten essay in 1923* Schmitt asked w hether the constitution was a consistent document. In searching fo r the answer he concluded th a t it contained tw o distinct ideas, one of which was democratic and the other liberal. 1 S. William Halperin, Germany Tried Democracy (New York: W. W. N orton & Company, Inc., 1965), p. 308. * Although this slogan originated with E. Bernstein, the Social Democrats, in general, were not against the republic. * GGL.

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1. The Criteria of Democracy: Identity and Homogeneity Schmitt observed th a t the political aim o f democracy in the nine­ teenth century was polemical in so fa r as it was anti-monarchical: the sovereignty of the people against the sovereignty o f the monarch. Once democracy lost its enemy, the king, then it became clear, accord­ ing to Schmitt, th at its political aim had vanished4. Were one to eliminate the emasculated sense o f democracy as under­ stood in the nineteenth century then, in Schmitt’s view, one could conclude th a t the basic criterion o f democracy is the identity between ruler and ruled (an old A ristotelian formula), and thereby law and the will of the people are equated (Rousseau’s formula). By following essentially Rousseau’s views on the topic Schmitt stated th a t it was Rousseau’s belief th a t citizens agreed even to those laws which were enacted against their will, because law is the volonté générale*. I f this were combined w ith Rousseau’s argum ent th a t the general w ill is in accord w ith true freedom then, according to Schmitt, this m ay easily result in the logical conclusion draw n by the Jacobins th a t a m inority m ay rule over the m ajority in the name o f democracy. “T he central point of the democratic principle remains intact, namely, the assertion of an identity of law and the w ill o f the p e o p le . . Consequently, Schmitt concluded, there is nothing incompatible between democracy and dictatorship7, because the essence of democracy is identity, and n o t necessarily liberty. In Schmitt’s construction the antithesis o f dictator­ ship is discussion and not democracy. Schmitt touched upon this topic again in a preface to the new edition of the Geistesgeschichtliche Lage des heutigen Parlam entarism us in 1926. Whereas previously he confined his remarks to the identity between ruler and ruled, etc., they now centered m ainly on physical and m oral qualities. Schmitt was strongly impressed by the then actual problem of minorities in C entral and Eastern Europe, especially the Greek-Turkish population exchange8. In relying on classical practice he argued th at homogeneity, and if necessary, “ the excision or destruc­ « • • 7 •

Ibid., p. 12. Ibid., p. 14. Ibid. Ibid., p. 17. GGL (1926), p. 14; see also V, p. 232.

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tion o f the heterogeneous”* elements are decisive factors fo r any true democracy, for "the democratic concept of equality is a political one which takes cognizance, as any genuine political concept [does], of the possibility of distinguishing friend from enemy101*.** The political strength of a democracy may be seen when it knows how to do away or keep at a distance the strange (das Fremde) and unequal, [that] which threatens homogeneity. . . . It [homogeneity] can be found in certain physical and moral qualities, for example, in the citizenry’s excel­ lence, dpexf| , the virtus (vertu) of classical democracy. English sectarian democracy of the seventeenth century is based on common religious con­ victions. Since the nineteenth century it has consisted mainly in belonging to a definite nation, in national homogeneity11.

A fter having established for himself w hat he considered to be the true elements of democracy Schmitt proceeded to analyze the W eimar constitution as to its democratic content. In this context he noted the existence of a kind of identity between ruler and ruled, and pointed to the constitutional provisions for popular initiative and referen­ dum13. Both of these practices, said Schmitt, are in accordance w ith direct or pure democracy. The difference between the tw o is th a t the former takes place before a law is passed, ante legem, while the latter is post legem1*. O f specific interest to Schmitt was Article 73 section 3, for, accord­ ing to this section, the people may assume the role of the lawgiver. A popular vote shall further be resorted to when one-tenth of the qualified voten . . . initiate a petition. Such a petition must be accompanied by a fully elaborated bill. The government shall submit the bill together with a statement of its attitude to the Reichstag. H ie popular vote does not take place if die desired bill is enacted without amendment by the Reidistag14. • GGL (1926), p. 14. » V, p.227. 11 GGL (1926), p. 14. 11 Schmitt called this to the attention of a number of jurists in a lecture he delivered to the Jurist Society in Berlin on December 11, 1926. Subsequently he developed this lecture further and published it in book form. Carl Schmitt, Volksentsdseid und Volksbegehren: Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der ssnmittelbaren Demokratie (Berlin: Walter de Gruyter, 1927). Hereafter: W . 11 Ibid., p. 7. 14 F. Giese, Die ReiAsverfassung vom II. August 1919 (6th ed.; Berlin: Carl Heymanns Verlag, 1925), p. 215.

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Schmitt observed th a t the "popular initiative is geared . . . to a popular decision. . H ow ever, this happened only if the popularly desired bill was not accepted in its entirety by the Reichstag. Thus, next to the norm al procedure o f lawgiving by Reichstag resolutions under A rticle 68, the constitution also provided fo r an extraordinary procedure which was the result o f the "relationship between popular initiative and popular decision. . .M.” For lack o f a better term, Schmitt called this "popular lawgiving procedure (Volksgesetzgebungsv e r fa h r e n f.’* This procedure only bordered on a true democracy, according to Sdim itt, because initiatives in the W eimar constitutional sense m eant nothing more than a few people drafting the desired law, submitting it to a t least one-tenth of the| people, w aiting for their answer, and, if they approved, forw arding it to the government. In a democracy all can participate in the deliberation o f drafting the law18, but, he added, this is impossible in a country as large as Germany18. For this reason it is essential th a t the popularly elected president be perm itted to submit to the people precisely phrased questions88 (the W eimar consti­ tution did not perm it the president to submit questions directly to the people) in order for them to be able to acclaim properly. N o form o f state, in Schmitt's view, could forego the practice o f acclamation, and he was not adverse to the idea of reviving in a modified form the classical procedure. H ie people acclaim a leader, the army (here identical with the people) [acclaims] the commander in chief or im perator. . . . [The people] acclaim or reject, rejoice or grow l. . . [they] s a y . . . 'amen' regarding a decision. . . or refuse by remaining silent11.

Although every citizen can participate in drafting laws in a democ­ racy, Schmitt pointed out th a t even the W eim ar constitution excluded certain questions from the popular lawgiving procedure. This exclusion, » W ,p .lO .

Ibid. 17 Ibid., pp. 10,14. « Ibid., pp. 38—39. » Ibid., p. 42. M Ibid., pp. 36 ff. Schmitt is here radier vague on what constitutes a well phrased question. 11 Ibid., p. 34. m

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he m aintained, is in accordance w ith the democratic principle. A rticle 73 section 4, for example, did not perm it initiatives to take place on the following items: (a) the budget, (b) tax laws, and (c) laws relating to the classification and paym ent o f public officers” . Schmitt observed th a t although this section included a wide variety o f matters, it w ould be more appropriate to say th at all laws pertaining to money (G eldgesetze) were not subject for popular decisions” . There are matters, said Schmitt, which are appropriate for such decisions, bu t not suited for popular initiative, and vice-versa” . H ere he was obviously influenced by Rousseau’s dislike of questions pertaining to finance. “The w ord ‘finance,’” said Rousseau, “ is a slavish w o r d . . According to Schmitt, When a people express themselves directly as a mass they can make known their opinion on every proposition, without mistakenly creating the impres­ sion that they want to play [the role] of the scientific technical expert*8.

In Schmitt's view, w hat sort of legislation can the people initiate? H e argued th a t the actual purpose of an initiative, from the viewpoint of the W eimar constitution, was to d ra ft general laws only” . H ere he agreed w ith Rousseau who maintained th a t the people can pass upon general laws solely, and must avoid the objet individuel. Says Rousseau: “W hen I say th a t the object of laws is always general, I mean th a t law considers subjects en masse and actions in the abstract, and never a particular person or action” .*' N o t only were the enumerated items excluded from the people's initiative, Schmitt argued, but, according to the general meaning of this article, the whole realm o f die government and adm inistrative apparatus was excluded as well” . ** Article 73 section 4 states that: "Only by authority of the Reichspresident may a popular vote be taken on the budget, tax laws, and laws relating to the classification and payment of public officers.” Giese, Die Reichsver­ fassung vom 11. August 1919, p. 215. See also: “Gesetz über den Volksent­ scheid” of June 27, 1921. Reichsgesetzblatt, No. 68, pp. 790 ff. 88 W , pp. 22,23. *ł Ibid., p. 15. 85 J. J. Rousseau, “The Social Contract,” The Social Contract and Dis­ courses (Translation and introduction by G. D. H . Cole; New York: E. P. Dutton and Company, Inc., 1950), p. 93. 88 W , p. 35. 87 Ibid., p. 45. 88 Rousseau, “The Social Contract,” p. 35. 88 V V ,pp.44—45. 6 Schwab

06

Part One: Sdunict and the Weimar Constitution: 1921—1933

According to Schmitt's previous interpretation of Article 48, the president during a state of exception could only undertake measures but not give laws. The people, on the other hand, could only give laws but could not undertake measures. N ow Schmitt deviated from his previous position by perm itting the president to do both — not only in exceptional times but also during normal periods. C an the amorphous people, in Schmitt's opinion, will a new consti­ tution into existence a t any given moment? In the context o f the W eimar constitution he stated th a t a people cannot themselves ask certain questions (i. e., legislation concerning governmental and admin­ istrative matters), but can only answer questions th a t have been sub­ m itted by the government30. From this he also inferred th a t the people cannot initiate legislation pertaining to a new constitution o r to the basic nature of the existing one, for this would imply th at the initiating m inority could pose the actual question and overrule the democratic government. Hence it m ay be stated th a t in Schmitt’s construction the people are either omnipotent in so far as they decide in the last instance by their “ yes” or “ no,” or powerless because o f their absolute dependence on whether the properly phrased question is asked. This is in sharp contrast to Rousseau's conclusion in the Social C ontract which ignores the question-answer problem. This type o f democracy must be understood in Robespierre's inter­ pretation of Rousseau's concept o f the "general will.'* Robespierre argued th a t because of the people's lack o f enlightenment they could not be trusted to voice their real will31. Because o f Schmitt's conviction about the evil and dangerous nature o f man, h e did not believe th a t the people could, in the foreseeable future, be educated to govern themselves. In other words, the democratic general will in Schmitt is a combination of the pow er of a man o r a m inority to ask the people a question and the peoples' right to answer. But this is a perversion o f a true democracy, because of the dependence o f the people on the *° Ibid., p. 35. si Jacob L. Talmon, The Origins of Totalitarian Democracy (London: Seeker & Warburg, 1955), p. 106. In mentioning that Italy had abandoned the liberal methods of election, Sdunitt stated that there is nothing incongruous between plebiscites and democracy. See Schmitt’s book review of Erwin von Bedterath’s "Wesen und Werden des faschistischen Staates” (1929), Positio­ nen und Begriffe im K am pf mit Weimar — Genf — Versailles 1923— 1939 (Hamburg: Hanseatische Verlagsanstalt, 1940), p. 111.

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question being asked. Professor Smend correctly observed th at Schmitt’s understanding of democracy is "antique*9.” The exclusive right to ask the question th at Schmitt attributes to the government has its origin in ancient Sparta, and the practice was also known in the Roman republic — the jus rogandi. But, on the other hand, the introduction of the question-answer method is very modem and belongs to a plebiscitarian mass democracy.

2. The Criteria of Liberalism: Discussion and Parliamentarian ism Liberalism has three aspects to it: the philosophical, economic, and political. The first rests upon the general Stoic belief th a t all men are equal — unlike the democratic view which recognizes only citizens as equal. The economic aspect is found in the theory of laissez faire. And the general political meaning of liberalism is embodied in the writings of Locke, Montesquieu, and J. S. Mill, among others. Respectively, they stress the belief th a t government exists for the well being o f the people, th at pow er must be checked by power, and the belief in freedom of speech. In Schmitt’s view the essence of political liberalism is not the identity of ruler and ruled or law and the will of the people, nor any other kind of identity, but public debate, the separation of powers, and the enactment of laws as a result o f free parliam entary discussions33. H e noted in this context th at in the fight between popular represen­ tation and monarchical rale one referred to a popular executive as a parliam entary government, and this, of course, assumes the existence of parliament*4. Proceeding w ith his observations he accepted G uizot’s three characteristics of parliamentarianism which he outlined in the nineteenth century: (1) discussion, (2) public parliam entary debate, and (3) freedom of the press**. Schmitt utilized these categories in analyzing the parliam entary situation in Weimar. A point emphasized by Schmitt was th a t the historical process is not static, and questions of the present cannot be replied to w ith answers of the past (see Introduction). B ut in his discussion o f the W eimar parliam ent he did 3 3S Rudolf Smend, Verfassung und Verjassungsrecht (München: Duncker & Humblot, 1928), p.68. » GGL (1923), pp. 27 ff. « Ibid., pp. 20—21. » Ibid., pp. 23—24.

s*

P art One: Schmitt and the Weimar Constitution: 1921—1933

exactly this. According to him, the parliam entary system had lost its raison d ’etre in our century became the three characteristics o f parliamentarianism were no longer in operation. The reason for the absence of these characteristics must be sought in the changed nature o f the political parties. Weber observed th a t parties in the nineteenth century rested upon the belief in free recruitment and winning o f voters**. A nother striking point o f the structure of political parties then was the lack of tight cohesion. Moreover, a parliam entary representative did n ot necessarily belong to a political p arty , and he was, therefore, independent o f p a rty ties. H ow ever, the nature of political parties changed profoundly. The Catholic Center and the Social Democrats were W eltanschauung parties even before 1919, and became the main components of the W eimar coalition. The new parties, the Communist and the N ational Socialist, were well organized and tightly centralized political forces. Hence, referring to the workings of parliam ent, Schmitt noted, in 1923, th a t ever “ smaller and smaller committees of parties or p arty coalitions decided behind closed doors . . . the fate o f millions of peo p le. . H e reiterated this view in 1926. In the new forew ord to the second edition o f D ie geistesgeschichtliche Lage des heutigen Parlamentarismus he stated th a t one m ay speak o f genuine parliamentarianism only as long as public parliam entary discussion is taken seriously*8. “A ll . . . parliam entary establishments and norms receive . . . their meaning through discussion and public parliam entary debate*8.” But in this age of mass democracy, which came about mainly as a result of the extension o f the franchise, and, in turn, aided the development o f strict p arty discipline, public discussion, in Schmitt’s view, had become an em pty formula. Political parties, no longer concerning themselves with discussion, now appear as social or economic power groups facing each other, calculating. . . the interests and power possibilities and [dien] deciding . . . on compromises and coalitions4*. ** Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (4th ed.; Edited by Johannes Windtefanan; Tubingen: J. C. B. M ohr [Paul Siebedc], 1956), 1. Halbband, p. 167. ” GGL (1923), p. 39. » Ibid. (1926), p. 9. » Ibid., p. 7. « Ibid., p. 11.

Chapter III: The Meaning of Democracy and Liberalism

W ith the ideological dismissal o f the institution o f the W eimar parliam ent, Schmitt searched for the liberal elements contained in the constitution which could substantiate his thesis of the spiritual bankruptcy o f the W eim ar parliam ent. For our purpose only tw o articles are o f interest — 21 and 29. Schmitt pointed out th a t the w ording of Article 21 is not in accord w ith tw entieth-century practice. It states th a t The representatives represent the whole people. They are subject only to their conscience and are not bound by any instructions41*4.

Moreover, the spiritual basis of parliam ent was also safeguarded in Article 29 sentence 1: The proceedings o f the Reichstag are public4*. Tight p a rty cohesion, whereby the representatives owed their allegiance to the political p arty , Schmitt argued, made public proceed­ ings farcical because im portant decisions were arrived a t behind closed doors. According to Schmitt, parliam ent was no longer the place where political decisions were made. “ The essential decisions are made outside parliam ent4*.” H is criticisms of parliam entarianism concerned also the axis o f the W eimar juristic system: the W eim ar state as a Rechtsstaat in the sense of a G esetzesstaat (lawgiving state). In this typ e of state the lawgiver has the last w ord and the lawgiver is parliam ent. Also the constitution itself was law, juristically speaking, and could be revised by w ay of law — Article 76. Schmitt asked the question which m ay be appropriately phrased as follows: To w hat extent can the constitution be amended by w ay of Article 76? According to this article The constitution may be amended by way of legislation. But acts of the Reichstag relating to die amendment of the constitution are valid only when two-thirds of the members are present and at least two-thirds present assent. Also acts of the Reichsrat relating to the amendment of the constitution require a two-thirds majority of all votes cast. . .**.

H ie opinion of the leading commentators o f the W eimar constitution, Anschütz and Giese, leading jurists such as Richard Thoma, and in 41 « « 44

Giese, Die Reichsverfassung vom 11. August 1919, p. 108. Ibid., p. 122. V, p. 319. Giese, Die Reichsverfassung vom 11. August 1919, pp. 224—225.

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general the prevailing attitude was th a t the constitution m ay be amended to any extent under this article. For instance Article 1 section 1 th at “ the German Reich is a republic”4'*’ could, in accordance w ith the dom inant opinion, be changed by w ay o f A rticle 76 to read th a t Germany is a monarchy or a Soviet republic. Schmitt maintained, on the other hand, th a t section 1 of A rticle 1 could not be amended by making use of Article 76, for to do so w ould result in the destruction of the entire constitution4546, and Schmitt argued th a t it is essential to distinguish between amending and destroying a constitution. The only amendments th at m ay be passed under Article 76, according to Schmitt, related to one or a few constitutional provisions only. N o amendment may ever endanger the basic republican concept, to w it, th at the identity and continuity o f the constitution remain intact as a whole47. In replying to this interpretation of the constitution Anschiitz stated th at the theory advanced th a t there were limits which m ay not be transgressed by w ay of A rticle 76 was a "novel theory4849.” H e pointed out th a t "th e constitution . . . does not stand above the legis­ lature, but is at its disposal46.” According to Richard Thom a the Reich’s legislature "possesses an unlimited competence, a plenitudo potestatis for constitutional change.” Neither "enthusiasm nor fear” can change the correctness of this interpretation50. Schmitt's arguments were aimed a t destroying the purely mechanical approach to parliam entarianism , namely, th a t any qualified m ajority m ay a t any moment decide on the nature of the constitution itself. By noting the composition of the W eimar parliam ent this could very well have meant th at it was possible to have a republican form of govern­ ment one day, monarchical the next, socialist on the following, and culminating, finally in either a Communist or N ational-Socialist form. Against this purely procedural approach Schmitt advanced the thesis th at only the people, the pouvoir constituant, m ay make the decision about the kind of constitution they desired. 45 Ibid., p. 48. 44 V, p. 104. « Ibid., p. 103. 48 G. Anschiitz, Kommentar zur Reichsverfassung (14th ed.; 1932), pp. 404 if. 49 G. Anschiitz, Die Verfassung des Deutschen Reiths vom 11. August 1919 (U th ed.; Berlin: Verlag von Georg Stilke, 1929), pp. 351—352. 50 Richard Thoma, "Die Funktionen der Staatsgewalt.” Handbuch des Deutsthen Staatsrechts (Edited by G. Anschütz and R. Thoma; Tubingen: Verlag von J. C. B. Mohr [Paul Siebeck], 1932), Vol. II, p. 154.

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Superficially Schmitt’s argument appears to contradict his ideological one in which he advocated democratic ideas a t the expense o f liberal ones. In his pleas regarding Article 76 in relation to Article 1 he argued for saving the constitution. Though this is not exactly the case in the context of his writings in general, his interpretation, nevertheless, had a profound im pact on the drafting of the Bonn constitution (see Conclusion). W hy then was Schmitt suddenly defending the constitution? In doing so he had hoped to counteract the ever present possibility of extremist parties sliding into power legally and thereby (hanging the constitution's basic meaning by w ay of Article 76. Although Schmitt himself was not much concerned about the republican form of govern­ ment, he w anted to prevent any challenge to the powers o f the popu­ larly elected president for, in his view, the president, in conjunction w ith the officialdom and army, formed a realm of objective reason in the sense th at they were interested in the entire nation and not just sections of it. In other words, since the constitution was in the process of being abused by the various extreme parties, Schmitt preferred th a t it be violated by the president — the least radical of the extreme alternatives. Since we find as yet no concrete suggestions as to how the state which Sdim itt had in m ind could be brought about, his discussion of democracy and liberalism is therefore almost purely ideological. Against a purely mechanical legal system as expressed by the parliam entary voting procedures, Schmitt tried to construct a legitimate form of government in which the president would have found his raison d'etre in the peoples’ desire for a strong leader as expressed in the form of plebiscites. Schmitt’s reason for advancing this argument was to establish a government based m ainly on legitimate rule by making legality a derivative of legitimacy — here Schmitt is indebted to M ax Weber's classifications91 — rather than making legality anti­ thetical o r even superior to legitimacy.51* 51 It may be of interest to note that Max Weber had hoped to establish the Weimar republic along the principle of constitutionality based on the parliamentary lawgiving state, and on the plebiscitary principle in which the president would have played the role of a charismatic leader. Schmitt, as Wolf­ gang Mommsen observed in his study Max Weber und die deutsche Politik 1890— 1920 (Tubingen: J. C. B. Mohr [Paul Siebeck], 1959, p. 383), did not take the first principle into consideration, but stressed the second. Mommsen is correct on die first point, but only partially so on the second. Although Schmitt spoke of the president being die leader of the German people, he did not imply that the president had to possess charismatic qualities.

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Due to Schmitt's Catholic heritage and his unhesitating endorsement of the Catholic diurdi in the early 1920’s, and because of his views on democracy and the presidency of W eimar, R idiard Thom a advanced the suggestion th a t it is Schmitt's unspoken personal conviction th at to restore order Schmitt hoped to achieve an alliance between the dictator — the president — and the Catholic church88. This is indeed plausible, for Schmitt pointed out th a t the Church represents the civitas hum ana and C hrist8*. Representation also implies the exercise o f personal power84, and this authority is embodied in the pope88. An alliance between the pope and a directly elected president in whose hands pow er w ould reside was w ithin the realm o f possibility in the context of Schmitt's writings. Furtherm ore, it cannot be denied th a t Schmitt looked to Rome during these years. But it is somewhat fa r fetched to conclude th at Schmitt saw the solution o f the German tragedy solely in an alliance w ith the Vatican. There is no doubt th a t the Catholic church exerted a strong influence in Germ any through the C enter p arty — bu t it was only a p arty and n ot the state; and Schmitt was enough of a realist to recognize th a t die restoration o f order and discipline could not depend only on a concordat. H e had few illusions about the general secularization of modern life. As early as 1922 he stated that: "A lle prägnanten Begriffe der modernen Staatslehre sind säkularisierte theologische Begriffe88.'' 61

61 Richard Thoma, "Zur Ideologie des Parlamentarismus und der D ikta­ tur," Ardsvo für Sozialwissenschaft und Sozialpolitik, Vol. 53, H e f tl, 1925, p. 217. » R K (1923), pp. 39—40. M Ibid., p. 44. “ Ibid., p. 30. M PT, p. 49. Italics mine.

Modern History as a Process of Neutralization: A Discourse Between 1921 and 1929 Sdim itt w rote more than once on subjects more ideological in nature than juristic. This was m ainly due, accord­ ing to him, to the relatively calm period in W eimar (especially since 1924), and his being far removed from the political scene, Berlin. A new period began for him in 1930, the year following his arrival in the capital. A fter the W all Street crash he joined Johannes Popitz and the Reichswehr officers of the Schleicher entourage, such as Erich Marcks and Eugen O tt, w ith the aim of averting the possibility o f an extremist p arty gaining pow er by legal o r illegal means. In this crisis atmosphere Schmitt developed to a great extent the idea o f the présidial system as an alternative to w hat he believed to be a bankrupt and im potent parliam entary system. From his writings in general, so far, we have noted th a t he did not care much fo r the republican form of government. H e shared the belief, widespread a t the time in Germany, th a t the W eimar constitu­ tion in its original form was not an appropriate document for a country w ithout a solid liberal-democratic tradition, and therefore he did not believe th a t in the face of continued crises in Germany this document could be saved in its entirety. Schmitt's pessimism vis-à-vis the W eimar constitution as a whole is also not surprising in view of his strong religious and to a large extent anti-liberal intellectual heritage. The discourse on neutralization is a convenient m ark to separate Schmitt's p artly ideological approach from his more pragmatic one after the W all Street crash. In a lecture delivered on O ctober 12, 1929, a t Barcelona1, Schmitt outlined the general course of history since the sixteenth century, and maintained th a t it reflected an intensified process o f neutralization from theology to technology. Because of its religious wars he called the sixteenth century a century o f theology. This century was followed by the seventeenth or metaphysical and scientific century which was, 1 Carl Sdimitt, “Das Zeitalter der Neutralisierung und Entpolitisierung” (1929), Positionen und Begriffe im Kam pf mit Weimar — Genf — Versailles Î923— 1939 (Hamburg: Hanseatische Verlagsanstalt, 1940).

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in Schmitt’s opinion, the heroic age of occidental rationalism for it encompassed, simultaneously, such thinkers as Sudrez, Bacon, Galileo, Kepler, Descartes, Grotius, Hobbes, Spinoza, Pascal, Leibniz and N ewton. The eighteenth century he referred to as one which vulgarized the previous one. The “ specific pathos of the eighteenth century [was] th at o f ‘m orality’ (Tugend), and its mythical w ord [was Montes­ quieu’s and especially Rousseau’s] ‘vertu.’” Moreover, in the K antian concept God was no more than a ‘“parasite o f ethics.” ' The nineteenth century was the economic century. Production and consumption became the central human categories. O ur own, the tw entieth, Schmitt characterized as an age in which the technical sciences predominate. In the nineteenth century, Schmitt argued, the technical sciences were closely related to the general economic development and so the two, technical science and economic development, often marched under the same banner, namely, industrialism3. Returning for a moment to the sixteenth century, Schmitt asserted th at the European people, exhausted by civil wars th a t were incited by theologians, searched for a neutral area in which theological disputes would cease and thereby enable the different segments o f society to come to an understanding. This was achieved when Christian theology was superseded by a “ ‘natural’ system of theology, metaphysics, moral [philosophy] and jurisprudence**.” The theological concepts that were developed over many hundreds of years suddenly became uninteresting and [a matter of] private conviction. God was put aside (herausgesetzt) in the metaphysics of eighteenth-century deism, and vis-à-vis the struggles . . . of actual life [H e became] a neutral instance4.

For this reason, the former center o f gravity, namely, C hristian theology, ceased to be so. But when one sphere was neutralized another became the center of tension. T h at is why, said Schmitt, in the nineteenth century we witnessed the neutralization, first of the monarch, and then of the state. In neutralizing and banishing the political sphere, liberalism, according to Schmitt, achieved its aim, namely, the “pouvoir neutre and the neutral s ta te . . But then the realm of economics became the center o f new tensions, namely, the battlefield of class struggle. * * 4 8

Ibid., pp. 123—124. Ibid., p. 127. Ibid., p. 128. Ibid.

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European society thought th at it had finally found an absolutely neutral sphere in the technical sciences6, for the technical sciences were supposed to serve everybody w ithout any prejudice. Schmitt, in keeping w ith his friend-enemy criterion of politics, said th a t it remained to be seen, however, which political power would utilize the new technical sciences in order to define friend and enemy anew7, and, accordingly, would have an edge over those states which declined to do so. The technical realm, Schmitt maintained, must not be considered an everlastingly neutral sphere or a realm o f eternal peace8. Technical progress is not identical w ith moral progress, and the battle of a new friend-enemy distinction is taking place in which technical arms and weapons serve friend and enemy w ithout any moral distinction. Schmitt's aim in this discourse was to draw attention to the last five centuries and point out the inability of human beings to escape political conflict. The argument centered m ainly on his belief in the non-existence of an absolutely neutral sphere in which m ankind could find eternal peace. We gather th a t every sphere o f human existence can potentially become political. This discourse must therefore be approached from his friend-enemy distinction. H e implied th at it was a mistake to believe th at the friend-enemy category could be banished by always escaping into new regions. Schmitt's thesis th a t every sphere can potentially become political is also implicitly aimed a t destroying the M arxist-Leninist hope of bringing about a universal Communist society. When the state is eliminated, the political sphere, they argue, will one day vanish. It must be remembered, however, th at the type of man to emerge in the Communist millenium, according to Communist teachings, will be a new type of man and then, of course, political problems in the sense of the friend-enemy distinction may become a thing of the past. But returning to the epoch o f the national sovereign state, where man is still w hat he is, we note here a fallacious insinuation on Schmitt’s part, namely, th a t liberal-democratic states ignore the ever present possibility of conflict. H e was under the impression th at because the state as the highest political entity had been debased by

• Ibid. 7 Ibid., p. 131. • Ibid., p. 129.

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legal and political theorists, therefore it, the state, was so in practice. In so fa r as W eimar was concerned Sdunitt was correct because Germ any as a national sovereign state received a heavy blow at Versailles. W eimar Germ any proved powerless to assert itself in international politics, and a t home the state was often a t the mercy of the political parties. Schmitt’s short discourse must not be construed as an attem pt to build a universal philosophical historical system. H e is time bound to the epoch o f the modem national sovereign state which began to emerge in the sixteenth century. Also valid in this context is his belief in the uniqueness of historical events. Sudi vast scale historical pictures ceased as soon as Sdunitt was confronted in Berlin w ith the crisis situation emerging in the w inter 1929— 1930. Then new concrete constitutional problems arose. In January 1930 Sdunitt, in his H ugo Preuss discourse, uttered a Cassandra diagnosis: . . . die fate of the German intelligentsia and education w i l l . . . be identical with die fate of die Weimar constitution*.

* Carl Sdunitt, Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre (Tübingen: Verlag von J. C. B. Mohr [Paul Siebcdt], 1930), p. 25.

Chapter I V

The Meaning of the Présidial System The W all Street crash ushered in the final stage o f W eimar's existence. Besides the disruptive effect of some political parties which aimed a t acquiring pow er in order to implement their partial will, Schmitt, in 1929, also mentioned the polycratic and federal elements as constituting a disintegrating effect upon the state. I t was in this atmosphere of rapid decline th a t Schmitt developed his notion o f the présidial system as an alternative to a N azi or Communist victory. Schmitt constantly emphasized the importance of the state’s capacity o f standing ap art from society, fo r it must serve all of society instead of egoistic forces w ithin society. B ut the state as a political entity had, he m aintained, become a mere arm for the various political parties, and hence the state could no longer serve common interests. For a state to be a true state it must not only serve all o f society, b u t the goal of true political leadership should be, according to Schmitt, to serve higher interests, rather than narrow p a rty concerns1.

1. General Background: Tendencies Toward a Total State In discussing the nature of some political parties in W eimar, Schmitt objected to their totalitarian nature. Besides attem pting to gain power, the W eltanschauung parties aimed a t capturing the people's minds and indoctrinating them w ith the “right kind" o f outlook. These parties, according to him, attempt to lay hold of die people and accompany them from the cradle to the bier, from the kindergarten to the athletic club and bowling alley down to the grave or crematorium in order to instill in their adherents the correct 1 Carl Sdimitt, Der Hüter der Verfassung (Tubingen: Verlag von J. C. B. Mohr [Paul Siebedt], 1931), p. 88. Hereafter: H V . Der Hüter der Verfas­ sung appeared first as a short essay in 1929 in die Archiv des öffentlichen ReAts, Neue Folge, Band 16, H eft 2.

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Weltanschauung. . . . And as such they totally politicize [in different direc­ tions] the German people and their unity becomes completely divided2.

Schmitt also pointed out th a t these parties challenge the most signif­ icant monopoly of the state, namely its capacity to draw the distinc­ tion between friend and enemy3. By so doing the parties (the term is derived from “p a rt") not only negate the state, the whole, but actually claim to represent the true whole. In viewing it from this aspect Schmitt noted after W orld W ar II th a t there can really be no totali­ tarian states in the strict sense of the w ord, “ but only totalitarian parties4.” Because of the disintegrating effects which the various W eltanschau­ ung parties had in W eimar Germany, Schmitt contrasted the nature of the German state w ith th a t of Mussolini’s Italy. The form er he designated a quantitative total state and the latter a qualitative to tal state. A quantitative total state is one in which, according to Schmitt, the government under the pressure of various parties interferes in all aspects of human existence. The state is actually compelled to do this in domestic politics as the nature of the coalition government is a reflection, to some extent, of a parliam ent to m by dissension. R ather than this being a sign of strength, it is in fact a sign o f weakness, because the W eim ar state, Schmitt continued, proved incapable o f withstanding the overwhelming demands of the different parties3. The strength of the qualitative total state, on the other hand, is its capacity to resist effectively any claims being made on it by political parties. By not tolerating political opposition parties w ithin its realm, the state guards its most cherished monopoly, namely the capac­ ity to distinguish friend from enemy4 in domestic and international politics. Moreover, a qualitative total state does not as a rule interfere in the private economic realm. But to assure order, peace and stability, 2 Carl Schmitt, “Weiterentwicklung des totalen Staats in Deutschland“ (January 1933), Positionen und Begriffe im Kam pf m it Weimar — Genf — Versailles 1923— 1939 (Hamburg: Hanseatische Verlagsanstalt, 1940), p. 187. 2 Ibid., p. 188. 4 See Carl Schmitt’s Verfassungsrechtliche Aufsätze aus den Jahren 1924— 1954: Materialien zu einer Verfassungslehre (Berlin: Duncker & Humblot, 1958), p. 366. s Carl Schmitt, "Weiterentwicklung des totalen Staats in Deutschland“ (January 1933), Positionen und Begriffe. . . . p. 187. • Ibid., p. 186.

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the state cannot afford, in Schmitt's view, to leave the mail, mass media (i. e., radio, films, etc.) and other public entities outside the sphere of its control*. In the instance o f Germany, Schmitt singled out w hat Johannes Popitz called the polycratic elements as also having a decentralizing effect upon the state. Various legally recognized public entities (i. e., the Reichsbank, the post-office, the railroad system, among other bodies) were relatively free from state control in so far as questions of self adm inistration and policy decisions were concerned78*. The relative independence accorded to these bodies resulted, according to Schmitt, in “ lack of unified direction, disorganization, and . . . planlessness. . Also criticized by Schmitt was the disintegrating effect which the federal element had in W eimar. The coexistence of a number o f states w ithin the larger framework, the Reich, could easily be endangered, Schmitt argued, whenever a number of parties th at made up the coalition government a t any given moment were federalist parties, for generally such parties have only very limited interests. Furthermore, Schmitt also observed the danger which exists if different political parties were in control of one or more states. These power groups could then be in a position to influence the policy o f the entire Reich, and thus threaten the state from following policies in the interest of the entire nation101. O nly in this context can we understand Schmitt's position at Leipzig when he argued in favor of the Reich’s action on July 20, 1932, vis-à-vis Prussia. O n th at date H indenburg suspended the Prussian government, which was composed of Social Democrats, the Center p arty and democrats, on the ground th a t it was incapable of insuring peace in the most pow erful state in the Reidt, and appointed v. Papen Commissioner of Prussia11. For Schmitt to have justified the Reich’s action was in accord w ith his general desire to reduce any force which could ham per the state in its exercise of political power. This was especially true in time of crisis. Hence Schmitt's remark in the Supreme C ourt on O ctober 17, 1932, th a t the Reich's action was not 7 Ibid. See also 'S tarker Staat und gesunde Wirtschaft’' (1932), Volk und Reich, Heft 2, 1933, pp. 89ff. * H V , pp. 71,106—107. • Ibid., p. 92. 10 Ibid., p. 95. 11 For details of this event see Arnold Brecht’s Prelude to Silence (New York: Oxford University Press, 1944), pp. 65 ff.

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intended to destroy Prussia’s existence, but to protect it against dan­ ger19. This approach was certainly consistent w ith Schmitt's under­ standing of commissarial dictatorship and the powers o f the president according to Article 48 sections 1 and 2. In so far as section 2 was concerned the Supreme C ourt decided th a t the action o f the Reich government was in accord w ith the W eimar constitution.

2. The Defender of the Constitution: The President Against the general background o f centrifugal tendencies, Schmitt outlined a w ay of overcoming the crisis. In C hapter I we discussed the nature o f commissarial and sovereign dictatorship. These concepts m ay be mentioned here in illustrating Schmitt’s short and long range aims. To restore order and peace immediately he favored a commissar­ ial dictatorship. H ow ever, to insure continuous order, peace and unity, we note in Schmitt's writings strong sovereign dictatorial overtones, culminating finally in the sovereignty of the president; b u t as long as possible w ithin the fram ew ork of the W eimar constitution, for it offered vast possibilities. Schmitt pointed out in 1928 th a t — except in the case of a cabinet tolerated by a negative m ajority in parliam ent — three different legal kinds of government are possible: (1) a chancellor-cabinet of a m ajority party , (2) a coalition-cabinet of different parties, and (3) a presidial-government1213 which, however, opens the w ay to a commissarial dictatorship. The commissarial aspect came to the fore when Schmitt asked the question: W ho could be the defender of the W eimar constitution? Schmitt’s answer encompassed tw o possibilities: the judiciary or the president. A few comments can be made w ith regard to the former alternative, i. e., constructing a defender on the basis of judicial review. Taking cognizance o f A rticle 102 — "Judges are independent and subject only to the law ” 14 — a decision of N ovem ber 4, 1925, by the German Supreme C ourt stated th a t judicial review does not im ply

12 Carl Sdunitt, “Schlussrede vor dem Staatsgerichtshof in Leipzig,” Posi­ tionen und Begriffe. . . , p. 184. » V, p. 348 ff. 14 F. Giese, Die Reidrsverfassung vom 11. August 1919 (6th ed.; Berlin: Carl Heymanns Verlag, 1926), p. 280.

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th a t the judiciary is above the laws*16718. But the judiciary possessed the right not to apply laws if they were in conflict w ith the constitution, and therefore it had been suggested, according to Schmitt, th a t the judiciary is the guardian or defender of the constitution1*. Schmitt quickly pointed out, however, th at the German Supreme C ourt, or any other court, could not be the defender o f the constitu­ tion, for a judiciary always presupposes the existence of norms, and this, in turn, implies a state of normalcy17. D uring a state of exception m any norms are suspended, and therefore a true guardian must be above the norms. Furthermore, Schmitt also pointed out th a t for a judiciary to be true to its nature decisions must be arrived a t post e v e n t u m A " . . . judiciary, fo r as long as it remains a judiciary, arrives, politically speaking, always too la te . . .**.” Consequently w hat remained was Schmitt's belief th a t the guardian of the constitution could only be the president of the Reich. In developing this thesis Schmitt enlisted the aid o f Benjamin C onstant’s concept of the pouvoir neutre. Schmitt m aintained th a t it is im portant to distinguish between a higher third pow er and a neutral one. The higher third pow er is sovereign, while the neutral one "is not above, but stands side by side w ith the other constitutional bodies.” Nevertheless, the latter possesses specific prerogatives which enable it to ensure the regular functioning of the constitution as well as its preservation” . U nder the W eimar constitution, said Schmitt, the president plays the role of a "neutral, mediating, regulating and conserving” force, and he should become active, in Schmitt's view, only in cases of emergency*1. Although the president had certain prerogatives which made him independent o f the lawgiving branch, he was, nevertheless, bound to the countersignature of a minister who had the confidence of the Reichstag**. Among his prerogatives were his right to appoint civil » H V , p. 15. 16 Ibid., p. 12. Laws passed under Article 76 were not subject to judicial review. Ibid., pp. 16, 20. 17 Ibid., p. 19. 18 Ibid., p. 32. » Ibid., p. 33. 88 Ibid., p. 132. » Ibid., p. 137. 88 Ibid., pp. 137—138. This was in practice not so when the Reichstag 0 Schwab

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and m ilitary officers (Article 46), to grant pardons (Article 49), and promulgate laws (Article 70)M. These prerogatives, according to Schmitt, were in accordance w ith the categories th a t C onstant had set up*4, but evidently not sufficient to create a strong and powerful defender o f the constitution. Nevertheless, Schmitt continued to argue in favor o f the president being the defender of the constitution. W hy? First, because the consti­ tution, especially in view of Article 48, called for a strong president, and, second, he believed th at it is only logical th a t the plebiscitarian basis made the president the natural defender, for he was elected by the people as a whole. “The Reidispresident stands in the center o f a *

proved incapable of forming a majority to resolve a no-confidence vote. In­ cidentally, in the relation between the présidial and parliamentary system, the provision for countersignature (Article 50) was a key point for the protection of the parliamentary system. The procedure of appointing or dismissing a chancellor or ministers depended on the practice of countersignature. But who countersigned? The old or new chancellor? H ad the deposed chancellor the right to countersign, he could, by refusing to do so, impede the appointment of his successor. Legally the new présidial system came into being in a relatively unobtrusive fashion. A constitutional law of March 27, 1930 /G e­ setz über die Rechtsverhältnisse des Reichskanzlers und der Reichsminister (Reichsministergesetz)], decreed (sections 2 and 13) that the newly appointed chancellor could countersign his own appointment as well as the dismissal of his predecessor. See Reichsgesetzblatt, I, No. 9, pp. 96, 97;Handbuch des Deutschen Staatsrechts (Edited by G. Anschütz and R. Thoma; Tübingen: J. C .B . Mohr [Paul Siebeck], 1930), Vol. I, pp. 487, 524. It may be of interest to note that this law was passed under the Social-Democratic chancellor Hermann Müller who then fell from office. Briining’s appointment on March 30th inaugurated the présidial system. In this fashion Brüning countersigned die dismissal of Müller (1930), Papen that of Brüning (1932), Schleicher that of Papen (1932), and H itler that of Schleicher (January 1933). ** Articles 24, 45, 48, 70 and 73 dealing with the powers of the president must also be mentioned. Articles 25 and 48 have already been discussed. Article 45 section 1 sentences 1 and 2 state that: “The Reidispresident repre­ sents the Reich in matters of international law. In the name of the Reich he concludes alliances and other treaties with foreign powers/* F. Giese, Die Reichsverfassung vom 11. August 1919, p. 157. Article 70 states that: “The Reichspresident has the responsibility of publishing within one month consti­ tutionally enacted laws in the Reichsgesetzblatt/* Ibid., p. 209. Article 73 section 1 states that: “A law enacted by the Reichstag shall be referred to the people within one month before its promulgation if the Reichspresident so orders.” Ibid., p. 215; see also: H V , p. 158. “ H V ,p p .l3 7 —138.

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system built entirely on the plebiscitary basis which is independent o f p arty politics“ .” '"Independence/” said Schmitt, "is the fundam ental prerequisite of a defender of the constitution“ ,” and this independence was cemented by a plebiscitarian foundation. Also the president's right to dissolve parliam ent in this context must be borne in mind, for such a dissolution, too, constituted an appeal to the mass of voters97. Moreover, Schmitt continued, the fact th a t the president was elected for a seven year term, the difficulties involved in removing him from office, as well as his independence from ever changing parliam entary majorities, made him an appropriate defender“ . In addition, the constitution also explicitly stated (Article 42) th a t the president, upon assuming office, must vow to protect the constitution and the laws of the Reich“ . W hen Schmitt spoke of the president being the defender o f the constitution he assumed its validity and existence. The president's office, according to Schmitt, was the most stable in the W eimar structure, and because of his popular election, he could serve as a rallying point for the people in time o f crisis. A nd because the presi­ dent was the center of a plebiscitary system which was, to a large extent, neutral from the viewpoint of p arty politics, therefore, Schmitt concluded by saying th a t he served as a counterforce against the plurality of social and economic groupings“ . This well constituted defender of the constitution had in his hands the mighty instrument of exceptional powers, Article 48. The powers he enjoyed because o f this article had increased considerably over a period o f ten years. The main reason fo r this was th a t section 5 of Article 48 which stated th a t "Details w ill be provided in a Reich law ” *279 » Ibid., p. 158. » Ibid., p. 150. 27 Between 1924 and 1933 there had been seven dissolutions, two of which (1930, 1932) concerned the exceptional power of Article 48. This Weimar practice of dissolving parliament revealed a growing tendency towards a plebiscitarian democracy and ended in the open dualism of two lawgivers: the parliamentary according to Article 68, and the plebiscitarian according to Article 48. See Carl Sdunitt, Verfassungsrechtliche A ufsätze. . . , pp. 27—28. » H V , p. 158. 29 Ibid., p. 159. Ib is vow was not a pure formality but taken very seriously by Hindenburg. 29 Ibid..

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was never more narrow ly defined. In other words, the limits to which the president might go were never specifically circumscribed in a special law. Hence, Schmitt noted, practice by the president resulted in his decrees having the force of law**1, and the acceptance th a t economic and financial questions were included in a state of exception**. In mentioning the decree pow er of the president which was based on Article 48 section 2, Sdunitt noted th a t the courts had decided not to review these decrees for their validity, and the length of time they could be in force**. Schmitt, who in 1924 had argued for the necessity o f distinguishing measures from laws, still held to this contention to some extent*4, but stated th a t actual practice neglected this distinction, and even the Reichstag, according to him, sanctioned the president’s decree power**. Moreover, die extension o f emergency legislation to the economic domain was also sanctioned. A nd because of the presi­ dent's practice, Schmitt argued th a t the provisory situation resulting from section 5 of Article 48 had received a positive content, as a result of the nonexistence o f a special law**. By accepting now in his legal discussions the dom inant view th a t measures m ay also have the force of ordinary legislation, Schmitt endowed the president w ith an im portant attribute o f sovereignty. Schmitt noted th at A rticle 48 perm itted a Reichstag w ith a norm al m ajority to check the president whenever he transgressed his powers. Moreover, a Reichstag w ith a normal m ajority could w ithout doubt become the decisive body in Weimar. But, Schmitt added, this power of the Reichstag depended on whether it was capable of acting: in other words, if it was able to find a w orking m ajority. "A Reichstag which is unable to form a m ajority compels the government to apply extraordinary powers. I f the Reichstag did not object to the exercise 91 Carl Sdunitt, "Die staatsrechtliche Bedeutung der Notverordnung, insbe­ sondere ihre Rechtsgültigkeit” (1931), Verfassungsrechtlithe A ufsätze. . . , p. 238. “ Ibid., p. 240. *• Ibid., p. 239. * See 1,2. 95 Carl Schmitt, "Die staatsrechtliche Bedeutung der Notverordnung, insbe­ sondere ihre Rechtsgiiltigkeit," Verfassungsrechtliche A ufsätze. . . , pp. 241—242. M Ibid., p. 242. A detailed discussion of the legal differences between measures (Massnahmen), decrees that were issued instead of laws (gesetzver­ tretende Verordnungen) and emergency decrees (Notverordnungen) is not necessary for our purpose.

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of extraordinary p o w ers. . Schmitt argued, then it had no w ay of checking the president's actions*7. O ne m ust not forget, Schmitt pointed out, th a t all measures under­ taken and decrees issued by the president so far were not dictatorial in a revolutionary sense. Q uite the contrary. Everything th a t had been done was geared to overcoming a difficult situation. I t was selfevident, Schmitt argued, th a t A rticle 48 was employed specifically to protect the constitution*8. So the arguments used here were similar to those employed previously. But a number o f ideas now began to emerge and overlap more clearly than before: the president as a commissariat dictator and therefore a defender o f the constitution, and the president in the context of a présidial system. The first role can be justified w ithin the fram ew ork of the constitu­ tion. H ow ever, in the instance o f Schmitt’s présidial system** the implications were far-reaching. Since considerable segments of the population did not accept the constitution Schmitt, on a number of occasions after 1923, explored its general nature and strongly urged th at certain parts be abandoned. In a similar vein he argued th a t the inability o f the Reichstag to act because of its heterogeneous composi­ tion clearly revealed the bankruptcy of this liberal institution, and therefore it no longer served a useful purpose. Since the Reichstag was incapable of acting, then the pouvoir constitué can be bypassed w ith the president appealing directly to the pouvoir constituant. The people as the mass of voters elected the president for seven years and he appealed to them when he dissolved parliam ent. These voters are in actuality identical w ith the people in its function as the pouvoir constituant. This is the crucial point a t which Bonapartism can set in. The great historical precedent was the coup d 'éta t by N apoleon I I I in 1851 and 1852. O f significance to understand is Schmitt's various levels o f argumen­ tation. Therefore, when speaking of a defender o f the constitution » Ibid., p. 258. 9« Ibid., pp. 259—260. 39 See René Capitant, "Le rôle politique du Président du Reich,'' Revue de doctrine et d'action politique, Paris, March 15, 1932, pp. 216 ff. For an interesting coincidence between Schmitt’s understanding of the role of the president as defender of the constitution and Article 5 of de Gaulle's consti­ tution see Arnulf Baring, "Ein H üter der Verfassung? General de Gaulle und die fünfte französische Republik," Deutsches Verwaltungsblatt, H eft 3, Febru­ ary 1, 1961, p. 103.

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after 1929, the idea o f a commissarial dictatorship continued to linger on in Schmitt's writings (which, incidentally, infuriated the extremists, fo r he justified rule by decree). H ow ever, the accent now was clearly on the president in Sdim itt’s context o f the présidial system. From the view point of political theory Schmitt’s présidial system was based on the rule of the president, the officialdom and the arm y. According to Sdim itt, this state had to be qualitative because, by being above the everyday parliam entary struggles, it w ould serve the entire people rather than just sections of it. This qualitative total state is also authoritarian rather than totalitarian: authority in the domain o f politics (i. e., the capacity to distinguish friend from enemy) and free­ dom of the individual in the realm o f the private economic, religious and social spheres40*. F or the présidial system to have h ad a solid foundation, the president w ould have had to legitimize his rule by plebiscitary means (Article 41 section 1). The présidial system was to some extent an expression of Sdim itt’s desire to return to the nineteenth-century dualist structure: namely, society on the one hand, and the state on the other. B ut instead o f a m onarch. occupying the throne, Sdim itt was willing to see an all powerful president, aided by an officialdom and the arm y. A nd a t this point it w ould be consistent to say th a t if parliam ent could not be disregarded, then civil society — the opposite pole o f the statemachinery — could make its demands felt in parliam ent. This did not imply, however, th a t the demands had to be met.

3. P o M ib ilities o f F u r th e r C o n stitu tio n a l D ev elo p m en ts in 1931 a n d 1 9 3 2

T o give greater substance to the présidial system Schmitt returned to the inconsistencies o f the W eimar constitution, namely, the antago­ nism between the democratic and liberal elements contained in it. In 1932 Schmitt stressed particularly the danger o f a purely functional interpretation o f the constitution, for a fifty-one percent m ajority in the Reichstag could enact any ordinary law (Article 68). Similarly, any qualified m ajority could bring about a constitutional amendment 40 For a distinction between the authoritarian and totalitarian state see Heinz O tto Ziegler, Autoritärer oder totaler Staat (Tübingen: J. C. B. Mohr [Paul Siebeck], 1932), pp. 37—39.

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and revision (Article 76)41. H e objected to this arithmetical approach, and shared w ith Maurice H auriou the view th a t every constitution contained a basic kernel which could not be abrogated by an ordinary or qualified m ajority43. Among the sacrosanct institutions mentioned by Schmitt were those of marriage, the right of local communities to administer themselves w ithin the confines of the laws (Article 127)*3, the institution o f the German officialdom which included the rights and duties of the individual official (Articles 128— 130)44, and the preservation of religious institutions (Article 137)45. In arguing for the preservation of these institutions, Schmitt urged that the p a rt of the constitution dealing w ith institutions be developed according to its inner consistencies, and simultaneously he stressed the need for eliminating the purely functional parliam entary method of voting. I f this were not done, he w arned, the foes o f the constitution could eventually abrogate legally the entire document. Said Schmitt, One cannot provide . . . for the protection of marriage, religion, private property in the constitution if the same constitution provides for the legal method of abrogating these4*. H ere we have an admission on Schmitt's p a rt th a t he found decisionism (a concept applicable mainly to a state of exception) insufficient, and hence he began exploring the possibility of constructing a constitution, based not only on the legitimacy o f the president, but also on trad i­ tional institutions47 which w ould have form ed a second source of legitimacy — in so fa r as every order w ould have had its own legal existence w ithin the confines of a strong state. And, when order and law will have been restored, Schmitt suggested th a t it may be wise to establish an upper house, a “ kind of meeting place” in which the organized interests or concrete orders could meet to discuss problems of m utual interest and arrive a t definite decisions48. But, he said, to 44 ZX,pp. 30—31. 4* /&