In this long read, Joshua Smeltzer reviews two recent books that return to the works of infamous political and legal theorist Carl Schmitt, Perilous Futures: On Carl Schmitt’s Late Writings by Peter Uwe Hohendahl and Carl Schmitt’s State and Constitutional Theory: A Critical Analysis by Benjamin Schupmann. In the piece, Smeltzer reflects on some of the methodological challenges of studying Schmitt’s work in historical context, questions scholarly attempts to rehabilitate Schmitt as a liberal state theorist given his close involvement with Nazism and calls for greater attention on other protagonists in the intellectual history of German democracy.
Perilous Futures: On Carl Schmitt’s Late Writings. Peter Uwe Hohendahl. Cornell University Press. 2018.
Carl Schmitt’s State and Constitutional Theory: A Critical Analysis. Benjamin Schupmann. Oxford University Press. 2017.
Carl Schmitt in and out of History
Image Credit: Bundestag, Berlin (Dani De La Cuesta CC BY SA 2.0)
On 9 November 2018, the German Bundespräsident Frank-Walter Steinmeier delivered a speech to the German Bundestag to mark the centenary of Kaiser Wilhelm II’s abdication and Philipp Scheidemann’s proclamation of the Weimar Republic from the windows of the Reichstag. This day of destiny, to follow Steinmeier, continues to represent ‘the breakthrough of parliamentary democracy’ in Germany, a project that was supported by the intellectual achievements of esteemed ‘experts of state law’, such as ‘Gerhard Anschütz, Richard Thoma, Hermann Heller or Hans Kelsen’. Liberals such as Moritz Julius Bonn and Ernst Troeltsch also made it onto Steinmeier’s honorary list of friends of the Weimar Republic.
When it came to the intellectual enemies of Weimar, however, Steinmeier’s list was much shorter: it was ‘above all the long tradition of anti-liberal thought which poisoned the political culture of the republic’, a tradition which found its clearest expression in the years of the Weimar Republic in the thought of ‘intellectuals like Carl Schmitt’. More than any of the Republic’s supporters, it is Schmitt – the man infamously known as ‘the Crown Jurist of the Third Reich’ – who has become ubiquitous in contemporary political and legal theory as the embodiment of diverse – and contradictory – theories such as radical democracy, authoritarian liberalism, revolutionary conservatism, reactionary modernism, anti-modernism, anti-imperialism, statism and post-modern conservatism to name just a few. It would seem, then, that over 30 years since Schmitt’s death in 1985, there are as many conceptions of the German jurist as there are political persuasions.
Benjamin Schupmann’s Carl Schmitt’s State and Constitutional Theory presents yet another conception of Schmitt’s work: that Schmitt, a ‘quasi-natural lawyer’ (20), ‘defended the authority of the state and constitution against subversion from below by elevating the legal status of basic rights over and against the will of the people’ (25). As a result, Schupmann offers a reading of Schmitt that ‘will show what [he] can theoretically offer liberal democrats today’ (25). In so doing, Schupmann works with a wide range of sources and, unlike much of the recent English language scholarship on Schmitt, he ought to be congratulated for his detailed engagement with German language primary sources and scholarship. Indeed, part of the merit of Schupmann’s project is that he is able to evaluate Schmitt’s shorter essays, unavailable in English translation at the time of publication, in order to offer a broader interpretation of Schmitt’s thought. Thus, often-overlooked texts such as ‘On TV Democracy’, ‘On Friedrich Meinecke’s Idea of raison d’état’ and ‘Basic Rights and Basic Duties’ all find their way into Schupmann’s account of Schmitt’s state and constitutional theory.
The book is organised largely around concepts in Schmitt’s thought, with chapters devoted to ‘The Concept of the Political’, ‘The Absolute Constitution’ and ‘The Guardian of the Constitution’. Most of the concepts treated in Schupmann’s study arise from Schmitt’s publications during the latter half of the Weimar Republic, but Schupmann frequently uses later texts as part of his interpretive framework. This interpretive strategy, however, raises a broader question of fundamental importance to Schmitt scholarship: does it make sense to speak of a unified state and constitutional theory in Schmitt’s work across time? The title of Schupmann’s book answers this question clearly in the affirmative and indeed the broader project is based on this premise. To follow Schupmann: ‘this book engages with Schmitt’s pre- and post-Weimar writings and argues that a coherent theoretical core can be extrapolated from them’ (27). This premise is strikingly apparent in the footnotes too: texts written during the Weimar Republic appear side by side with those appearing under National Socialism and the Federal Republic.
However, it is not clear that Schupmann’s continuity thesis can in fact be sustained when one references Schmitt’s own statements on the historicity of political concepts. ‘A historical truth is only true once,’ he claimed in ‘Dialogue on New Space’. In republishing a collection of essays under the title Positions and Concepts in the Struggle with Weimar – Versailles – Geneva, Schmitt cited Heraclitus’s dictum that it is not possible to step into the same river twice. Thus, Schmitt claimed these essays were republished as historical documents. The same sentiment is expressed in the foreword to his collection of Constitutional Essays: ‘all [of these essays], however, trace back in their theses and concepts to concrete situations and observations’. One might also look to The Concept of the Political, where Schmitt famously declares that ‘all political concepts […] have a polemical meaning. They are focused on a specific conflict and are bound to a concrete situation.’ Given that the introductory chapter of Schupmann’s volume reconstructs the discursive context of German legal thought preceding Schmitt’s criticism of legal positivism, one might have expected Schupmann to follow a more historical approach throughout his study; however, in Schupmann’s account, it seems that legal thought is contextually informed only until Schmitt began publishing.
By approaching Schmitt’s work as a coherent system across time, Schupmann’s text is confronted by a serious methodological problem, one that remains unaddressed throughout the book: how should scholars approach Schmitt’s writings between 1933 and 1945 in relation to his other publications? Schupmann largely avoids the question. For example, in a chapter on ‘Basic Rights’, Schupmann leaps from the Preussenschlag of 1932 to Schmitt’s 1949 commentary on the Grundgesetz to arrive at the conclusion that Schmitt was a defender of individual liberties (200). It would then seem that continuity can only be achieved by omitting outlying texts. Indeed, if it is the case that Schmitt’s work forms a coherent state and constitutional theory, then one might expect a treatment of his 1933 pamphlet State, Movement, People, Schmitt’s attempt at creating a state theory for National Socialism. One may wonder, for example, how the following claim fits with the state theory Schmitt presented in the Weimar Republic: ‘Only since the victory of the National Socialist movement does there exist the possibility of overcoming the constitutional concepts of bourgeois social thought through another state structure, the tripartite unity of state, movement, and people.’
Likewise, one might have to account for Schmitt’s argument, presented in his 1934 State Structure and Collapse of the Second Reich, that ‘the constitutional state and the state based on the rule of law were [the liberals’] monopoly. They created their own concept of law and constitution, and everything that they did and demanded appeared therefore as a fight, not for a liberal law and a liberal constitution […] but rather for the constitution and the Rechtsstaat, for freedom and equality in general.’ Indeed, if there is something like a unified constitutional theory in Schmitt’s work, as Schupmann supposes, why ought his texts prior to 1933 be given priority to those after? Given that the vast majority of texts cited in Schupmann’s study originate prior to Adolf Hitler’s Machtergreifung (seizure of power), perhaps the true title of the volume ought to be Carl Schmitt’s State and Constitutional Theory of the Weimar Republic.
Intervening in a continuing debate over whether Schmitt’s famous concept of the political was in fact intrinsically völkisch [racial] or rather merely accommodating to völkisch purposes after 1933, Schupmann comes down squarely on the latter position (88). However, in State, Movement, People, Schmitt posits the necessity of an ‘unconditional Artgleichheit [ed: an existential similarity] between the Führer and his followers’ in order to unify the tripartite elements of his National Socialist state theory. In the same text, Schmitt defends purging the legal profession of ‘foreign elements’, arguing that ‘a foreign element [Artfremder] may behave critically and astutely exert oneself, he may read books and write books; he thinks and understands differently, because he is different in his type [anders geartet ist] and remains in every decisive line of thought in the existential conditions of his type.’ Unfortunately, the nature and significance of such statements are not seriously considered in Schupmann’s analysis.
Schupmann ends his book with a plea to contemporary scholars to transcend the ‘agnosticism [that] led in part to Schmitt’s biographical occasionalism and the ease with which he joined the Nazi party once they had taken power. We can do better’ (215). One would certainly hope so. However, it does not then follow that ‘we can combine Schmitt’s formal analysis of the state and constitution with a philosophical commitment to liberalism’ (215), nor does it follow that we ought to rehabilitate Schmitt as a liberal state theorist. Perhaps instead historians ought to continue to explore Schmitt’s theories within their multiple historical contexts.
Peter Uwe Hohendahl’s Perilous Futures: On Carl Schmitt’s Late Writings presents a mirrored image of Schupmann’s study: where Schupmann sees continuity in Schmitt’s thought across time, Hohendahl urges a ‘return to Schmitt’s historical roots’ through ‘[explicating] Schmitt’s late work as part of a specific historical constellation’ (3). Instead of focusing on discrete political and legal concepts, Perilous Futures is organised around specific texts. While the first chapter looks at Schmitt’s diaries and ‘small essays’, the subsequent chapters turn to his monographs Theory of the Partisan to his Political Theology II. Hohendahl’s chapter on Schmitt and ‘The Fate of European Colonialism’ makes an important corrective to recent interpretations of Schmitt’s work: that far from being the proto anti-imperialist that Andreas Kalyvas has recently made him out to be, Schmitt merely lamented Germany’s loss of its colonies after World War I and the seeming hypocrisy of American ‘modern imperialism’.
Likewise, his concluding chapter, titled ‘Is There a Usable Schmitt?’, asks the important question of how it came to be that Schmitt’s reception in Anglo-American scholarship became so radically distinct from the more historical and critical readings found in German academia. Part of this, Hohendahl argues, arises from the mobilisation of Schmitt by the contemporary left – Hohendahl takes Slavoj Žižek and Chantal Mouffe as paradigmatic examples – as a critic of liberal theory, particularly as a response to the dominance of Jürgen Habermas and John Rawls (182). As Hohendahl puts it: ‘Schmitt, the outlaw of the early postwar years, had now become the savior of the Left opposition’ (182). For Hohendahl, the political left is responsible for the sanitised image of Schmitt now dominant in his Anglo-American reception. However, this leaves one to wonder as to the role played by the earliest, and highly exculpatory, accounts of Schmitt’s thought in English, George Schwab’s The Challenge of the Exception and Joseph Bendersky’s Carl Schmitt: Theorist for the Reich, in constructing the sanitised version of Schmitt’s thought that the left appropriates today.
Indeed, while Hohendahl’s renewed historical focus is a welcome corrective to the often anachronistic and, at times, superficial appropriation of Schmitt’s work in contemporary critical theory, Hohendahl falls short of offering a historically accurate reading of Schmitt. Indeed, the historically-minded reader might wonder when exactly Schmitt’s ‘Late Writings’ are meant to begin. Is it the period after 1945, which Hohendahl describes as a ‘sharp caesura’ due to the defeat of National Socialism (19)? Or is it earlier, where Hohendahl’s book itself begins, with Schmitt’s publication of his Großraum theory (great spaces), with individual essays appearing as early as 1938? And what is Hohendahl’s justification for periodising Schmitt’s work wherever he does in fact draw the line?
For Hohendahl, part of the character of Schmitt’s ‘late work’ is its ‘new, international perspective’, and here he cites Schmitt’s post-war history of the law of nations, The Nomos of the Earth (1950), as a key example. The problem with this interpretation, however, is that Schmitt’s interest in and writings on international politics began much earlier. Not only was Schmitt a co-director of the Institute for International Law and Politics at the University of Bonn starting in 1923, but he also published a tremendous range of articles on international law and politics during the Weimar Republic. These articles covered discussions of the League of Nations, the occupation of the Rhineland, the forms of modern imperialism and many other topics related to the international law and international politics of the interwar period. Thus, once framed within his broader body of work, it would seem that an ‘international perspective’ cannot be, in itself, the defining characteristic of Schmitt’s ‘Late Writings’.
At times, it seems that Hohendahl has not taken account of much of Schmitt’s work or the broader flood of secondary literature on Schmitt since the 1980s. For example, in discussing Schmitt’s Glossarium, Hohendahl claims that ‘he began a new diary in August of 1947 and continued writing until August of 1951’. From there, he notes that ‘from the lower density in 1951, it becomes apparent that the form of the diary has lost its crucial importance for the author’ (33). This observation then becomes an important interpretive tool for the rest of Hohendahl’s chapter. Unfortunately, the underlying premise is factually incorrect: Schmitt did not stop writing in 1951, but rather his Glossarium entries extended until 31 December 1958. Hohendahl was merely using the first edition of Glossarium, which was arbitrarily truncated by its editor to end in 1951. Additionally, the death of Schmitt’s wife, Duschka Schmitt, in December 1950 seems to have escaped Hohendahl’s attention as a possible explanation for the decreased number of entries at the beginning of 1951.
There are a number of other problematic statements in Hohendahl’s text as well. For example, Hohendahl claims that ‘Schmitt did not return to the [Monroe] Doctrine in his postwar writings, although it would have been a useful tool for a continued critique of U.S. liberalism’ (87). In fact, Schmitt dedicated an entire chapter of his Nomos of the Earth, titled ‘The Western Hemisphere’, to a discussion of the historical origins of the Monroe Doctrine. Likewise, the Monroe Doctrine appears in multiple entries in Glossarium. In addition to these factual errors, there are some translation issues that change the meaning of Schmitt’s argument. For example, Hohendahl quotes Schmitt’s Ex Captivitate Salus as criticising a ‘completely profane technocracy’ (50). The German term, however, is not ‘Technokratie’ but rather ‘Technizität’, usually rendered in English as ‘technicity’, and in no way implies a form of rule.
In addition, the value of Glossarium for a historical reading of Schmitt’s work seems to be overlooked: these diary entries show exactly when Schmitt was developing certain postwar arguments and they oftentimes include polemical targets, elucidations and modifications that do not appear in published texts. However, by focusing on stylistic form over both content and context, Hohendahl leaps to a number of strange conclusions. For example, Hohendahl argues that Schmitt used foreign languages in his diaries to ‘identify with the author he quoted’ (33). This would lead to a truly astounding Schmitt interpretation, as it would imply that Schmitt identified with authors such as Aldous Huxley (14 Dec. 1947), as well as R.P. Bruckberger, a member of the French Resistance (26 Nov. 1949). Instead, Schmitt himself offers a relatively straightforward explanation in his diary entry from 14 December 1947. Writing in English, Schmitt claims that ‘Huxley (A nation) can only be condemned out of her [its] own mouth.’ Using foreign languages in his diary can thus take the form of a polemical strategy of using an author’s own words against them.
While Hohendahl’s historical approach to interpreting Schmitt is certainly desirable in theory, there is surprisingly little historical research involved for a historical reading of Schmitt’s thought. Indeed, one might have expected at least some engagement with the Schmitt archive in Duisburg, or with interpreting his monographs with his shorter essays and their immediate (geo-)political and discursive context. Instead, Hohendahl provides a superficial summary of a potpourri of Schmitt’s texts without delivering much new in the way of unpublished documents, correspondences or marginalia. Perilous Futures is, therefore, hardly the last word on the historical Carl Schmitt.
At the end of his centenary oration, Bundespräsident Steinmeier appealed for ‘more attention, more lifeblood and yes, also more financial resources, to the places and protagonists of the history of our democracy’. Such a project is certainly much needed, as Schmitt’s quasi-celebrity status continues to eclipse the work of his contemporaries such as Heller, Ernst Fraenkel and Hans Wehberg, particularly within Anglophone academia. This distortion is partially a question of translation: Heller’s 1927 magnum opus on Sovereignty: A Contribution to the Theory of Public and International Law has only appeared in English translation in 2019, while relatively few of Wehberg’s texts on pacifism and international law appeared in English during his lifetime. The ‘protagonists’ of German democracy thus remain inaccessible to a broader academic audience.
In contrast, the majority of Schmitt’s monographs are already available in English, with a growing movement towards translating his smaller essays, book reviews and even newspaper articles. There is, however, one notable exception: the National Socialist pamphlets Schmitt published after Hitler’s seizure of power, such as State, Movement, People and State Structure and Collapse of the Second Reich, as well as essays like ‘The Logic of Intellectual Submission’. The absence of a critical and scholarly edition of these texts continues to distort Schmitt’s international reception, obscuring the very sources that lead many German speakers to view Schmitt with nothing short of repugnance.
To follow Steinmeier, the task going forward for an intellectual history of German democracy is thus two-fold. On the one hand, it must recover the contributions of those ‘protagonists’ who have been neglected, recapturing not only their work, but also the extreme consequences many of them faced as a result of these views. At the same time, however, there is a responsibility to chip away at the sanitised reception of figures such as Carl Schmitt, which has often preferred to ignore or downplay his involvement with National Socialism. Such a project is not just about scholarly accuracy and debunking the persistent myths surrounding the jurist from Plettenberg; rather, to follow one of Schmitt’s favourite quotations from the poet Theodor Däubler: ‘the enemy embodies our own question.’ Placing Schmitt back within his historical context may just provide us a clearer picture of our enemy, and, in the process, illuminate the questions confronting us today.
Joshua Smeltzer is a doctoral student at the University of Cambridge pursuing a PhD in Politics and International Studies, with a focus on twentieth-century German political thought.
Note: This review gives the views of the author, and not the position of the LSE Review of Books blog, or of the London School of Economics.