In this weekend’s Financial Times (12/13 January 2019) Gideon Rachman has written an op-ed about Carl Schmitt. As he writes, “Liberalism’s most brilliant enemy is back in vogue”: Chinese legal scholars, Russian nationalists, the far-right in the USA and Germany, plus the far-left in Britain and France, are reading the “premier legal theorist of Nazi Germany”.
Actually Schmitt is not back in vogue; he has never really been out of vogue. It may be that some on the extreme right have recently discovered his reputation and have attached their own fantasies to it. The account that Rachman gives would suggest this: emphasis is given to Schmitt’s scurrilous reputation as a legal apologist for early Nazi atrocities such as the 1934 “Night of the Long Knives”, asserting the pre-eminence of the SS over the SA by murdering scores of the latter, and including for good measure a former German Chancellor. Integrity and consistency are not qualities that one can associate with Schmitt; and since these are qualities that lend legitimacy to democratic political order, his personal values and the career shaped out of them are repugnant.
But his liberal and social democratic contemporaries did not not dismiss him for his reputation, as routinely happens today. Before he was the “Crown Jurist for the Third Reich”, he was the most consistent legal critic of the Weimar Republic. By defining sovereignty as “he who decides on the state of exception” – referring to Presidential powers in the Weimar Constitution – and combining this with a definition of politics in terms of “friend” and “foe”, Schmitt articulated basic political principles for arguments about modern democracies and the rule of law. Constitutional and democratic order were during the 1920s argued out in Germany in legal terms by theorists like Hermann Heller, Franz Neumann and Otto Kirchheimer, who sought to rebut Schmitt with legal and constitutional arguments. Both Neumann and Kirchheimer died as Professors of Public Law and Government at Columbia University, in 1954 and 1965 respectively.
During the 1980s I read the work of Neumann mainly in connection with his pioneering analysis of National Socialism, published as Behemoth in 1942/1944; I included an essay on this work in my Strategies of Economic Order (1995/2007). However, in 1987 I also published a collection of the legal writings of Neumann and Kirchheimer under the title Social Democracy and the Rule of Law, posing the problem: how can objectives of social justice and democratic order be given a constitutional basis? Here the German conception of Rechtstaatlichkeit is important – the principles informing the rule of law. Today, when as Gideon Rachman so rightly says, democratic principles are under attack, good arguments are needed in their defence. The Brexit saga has demonstrated at tedious length the lamentable ignorance of politicians, both in government and opposition, of what Rechtstaatlichkeit is, and why its principles are central to the defence of democratic order. As ever in Britain, the myth that “there is no British Constitution” is used as an excuse for a refusal to think about political and legal institutions at all.
And Carl Schmitt helps us here. The personal positions he later adopted are repugnant, but the questions that he asked about political order during the 1920s of the first German Republic challenged those seeking to create a secure legal foundation for democratic order. This was all swept away by the Nazis, a minority movement helped into power by an informal coalition formed of right-wing politicians and the KPD. Schmitt forced Neumann and Kirchheimer to focus upon the legal foundations of democratic order; the arguments they made in its defence remain of relevance today. And so I am very glad that my 1987 book will soon be reissued by Routledge.