Rowman & Littlefield International
Reviewed by: Samuel Lee (The New School for Social Research)
In the past few decades, we witness a renaissance of Schmitt studies in the English-speaking world. The field of legal philosophy in the US shares a similar trend. A vast amount of manuscripts, journals or PhD dissertations published every year and engage Carl Schmitt’s thought in different ways. As a disputed figure like Schmitt, the reception of his doctrine widely varies in the spectrum between far left and far right. Among many controversies, one of them is about him joining the Nazi party in 1933 and the immanent relationship between his political decision and his legal thought. Through the careful examination and critical engagement with Schmitt’s works in different periods, William Scheuerman argues that the life-long belief of legal indeterminacy led Schmitt to join the Nazi party eventually (8).
This book is divided into three parts. In the first part, Scheuerman shows that Schmitt’s early writings on judicial issues, the decisionist approach of sovereignty, the critique of liberal parliamentarianism, as well as the concrete order doctrine of international law, these stages consistently shed light on the lack of legal determinacy. To re-establish the ground of determinacy, Schmitt demands homogeneity of ethnic community (21), with which, for Scheuerman, Nazi offers a plausible solution for the Weimar Republic. Hence, Schmitt’s legal philosophy inevitably drives him to the Nazi. The next part compares Schmitt with two contemporaries, namely Joseph Schumpeter and Friedrich Hayek. Following Between the Norm and the Exception, Scheuerman continues to shed light on the impact of Schmitt’s thought in the transatlantic world. In this book, he rather focuses on the influence of Schmitt’s legal theory in the post-war America. Comparatively, there are very few studies examine this period of intellectual history. Scheuerman substantially contributes to the intellectual history by revealing the theoretical relationship between these pivotal post-war scholars. In the last part, Scheuerman borrows Schmitt’s idea of political emergency and engages with the contemporary political and legal issue concerning global emergency in the era of terrorism. In this way, Scheuerman offers a timely reading of Schmitt and reveals the fundamental weakness and insights inherent in his legal political view.
As a work that is largely devoted to legal philosophy, not a political debate of sovereignty, Scheuerman comprehends Schmitt’s thoughts in the context of contemporary critique of liberal rule of law. In the American context, there are two inter-related statements that generalize the challenges of the rule of law. First, the expansion of state interventions to different fields of capitalist economy and social welfare brings the judges and administrators with a vast amount of power. Second, the proliferation of powerful constitutional courts, endowed with generous powers of judicial review over legislation, has arguably accelerated trends toward discretionary government. To put it in a nutshell, the overwhelmingly centralized power of executive and judicial power that accumulated over the past century culminated in the asymmetrical relationship between the branch of legislative and judicial. The latter could now outweigh the power of the former by means of large numbers of judicial reviews and the obscurity of legal interpretations. The democracy and the rule of law are under severe threat from within. This current crisis of the rule of law is, for Scheuerman, best depicted by Schmitt’s legal diagnosis. Despite the flawed political solution Schmitt offered, the accurate analysis against liberal parliamentarianism is worthy of scrutiny.
In the first part, Scheuerman studies carefully the works of Schmitt over his long academic lifespan. He realizes that the legal philosophy of Carl Schmitt was devoted largely to the critique of legal indeterminacy that happened in the liberal Weimar constitutional order. Eventually, this judgment results in consenting the Nazi’s reign and even the idea of Großraum in the realm of international law. Hence in Scheuerman’s claim, joining the Nazi is to a large extent consistent with Schmitt’s early legal and political thoughts. In the 1920s, for instance, Schmitt argued for the centrality of the ‘exception’ of law in the Political Theology. “In its very essence, all legal experience is permeated by indeterminacy, by the ever-changing dictates of the concrete exception.” (35) The sovereign that is endowed with ultimate power to decide the exception represents the ambiguity of the law. All laws are then normatively justified not by the abstract moral reasons, but the absolute decision of the sovereign in concrete circumstances.
This issue of legal indeterminacy that largely embodied in the liberal political and legal order is caused by the crisis of parliamentary democracy. The basic incompatibility between liberalism and democracy that posited by Schmitt seems to show the doomed failure of liberal parliamentarism in the age of mass democracy, given that only democracy could provide a substantial homogeneity between the rulers and the ruled. This homogeneity determines the legal meaning of all laws (50). Nevertheless, Scheuerman is aware that liberal parliamentarism does not necessarily lead to legal indeterminacy in Schmitt’s account. At least in the 19th century, the homogeneity was to a certain degree maintained by means of Besitz und Bildung (property and education) (47). In other words, before the age of mass democracy, the minority of the aristocrats who were qualified to engage deliberation and debate in the parliament would somehow realize the ideal of free discussion and promote social interest for all. Yet, mass democracy fundamentally changed the game that the parliament deteriorated to vales of endless interest-based claims that lead to nowhere. “The people itself cannot discuss…and it can only engage in acts of acclamation, voting, and saying yes or no to questions posed to it”, as Schmitt famously put in the Constitutional Theory. As a result, the discursive characteristic of the parliament in the age of mass democracy turns anti-political in terms of paralyzing the political order and provoking legal indeterminacy.
In Scheuerman’s original interpretation, this argument “depicts twentieth-century mass-based authoritarianism as a fulfillment of the democratic project.” (49) Thus, Nazi would be a plausible solution of legal indeterminacy for Schmitt. Hence, since 1933, Schmitt wrote a vale of article to affirm the Nazi quest of ethnic and racial homogeneity. Unlike many scholars who conceive 1933 as the watershed of Schmitt’s academic life that shifts from the stage of decisionism to the stage of concrete-order approach, Scheuerman rather sheds light on the theoretical consistencies of Schmitt’s legal thought before and after 1933. “Essential to Schmitt’s idiosyncratic quest to reconceive the possibility of legal determinacy is an open endorsement of dystopian National Socialist visions of a racially and ethnically homogeneous ‘folk community’.” (135) Hence, to a certain extend, the Nazi realized the idea of sovereign dictatorship that Schmitt suggested in the early 1920s. The quest of homogeneous racial community and the emphasis of executive power of the party “re-politicize” Weimar’s state government through the friend-enemy distinction and dissolve the problem of legal indeterminacy. Scheuerman critically comments Schmitt over-emphasize the importance of the political, which would romanticize the use of violence. Also, the legal predictability and regularity are almost impossible to attain by the branch of legislative in mass democracy. Consequently, dictatorship seems to be the natural result.
Furthermore, Scheuerman believes the framework of the legal indeterminacy is embodied in Schmitt’s discussion of international law as well. Similar to the critique of liberal parliamentarism, liberal international law fails to represent a uniform will of a homogeneous group of people. Hence, the boundless extension of the liberal international law deprives the legality of it, insomuch as the legality should be grounded on the identity between the ruled and the ruler. Scheuerman argues that, in order to criticize the liberal international law, Schmitt endorsed the experience of American imperialism to support the National Socialist imperialism in the 30s and 40s before the war (165). Schwab first proposed the similarity between Schmitt’s concept of Großraum and Hitler’s concept of Lebensraum. Unlike the original international law that posits a groundless, anti-political notion of universality, imperial rule constitutes Großraum that is a grand political entity encountering others. In contrast to the globality of liberal international law, Großraum, illustrated by the US imperialism, has a hegemonic power to form the relations of domination. In the case of US, for instance, the nonintervention treaty between the US and the Latin American is made for the sake of protecting American property, though the US constantly used the exceptional clauses for various political purposes.
Scheuerman doubts if Schmitt could justify the German’s imperial expansion on the basis of the US imperialism. “In Schmitt’s legal theory, international law is systematically reduced to a direct and unmediated plaything of Nazi Realpolitik.” (190) Regardless of any traditional virtue of international law, Schmitt’s idea of Großraum is merely a veil for racial imperialism, as Scheuerman condemns. Accordingly, Schmitt fails to provide any alternative concept of international law to replace the liberal one.
The next part is to establish to linkage between the thought of Schmitt and two renowned American thinkers that are also Schmitt’s contemporaries, Schumpeter and Hayek. This contextual reading is inspiring and original, given that the majority of scholars shed light only on the Continental impact of Schmitt’s thought, such as the critical reception of Schmitt in the Frankfurt School or the Post-structuralism. On the other side of the transatlantic world, the influence of Carl Schmitt is largely ignored until the translation projects of George Schwab. By engaging with these thinkers, Scheuerman believes his studies could fill in this blank of intellectual history about the reception of Schmitt in the post-war American academia.
Concerning Schumpeter, his classic work Capitalism, Socialism and Democracy is for Scheuerman a response to Schmitt’s diagnosis of the crisis of liberal parliamentarism (217). Alike Schmitt, Schumpeter acknowledged Max Weber’s argument that modernization is the process of rationalism in which instrumental rationality, mechanization and bureaucratization dominate the modern logic of the world. The source of legitimacy, thus, is changed from charismatic leaders to rational legal authorities. What he disagreed with Weber is the annihilation of the heroic element in the discourse of iron cage. Schumpeter sheds light on the conception of the capitalist entrepreneur. Regarding the entrepreneurship, it allows the capitalist to be a heroic figure that pursue economic innovations and introduce new forms of economic activity to reform the current commercial routines. As a will to conquer, it appeals to the consumers. The boost of consumerism is a positive reinforcement from the market that manifests its support. His emphasis of will and heroic figure is akin to Schmitt’s notion of sovereignty.
More importantly, for Schumpeter, the rise of mass democracy, in the 20th century undermined the parliamentary democracy. In an essay, “Socialist Possibilities for Today” (1920), Schumpeter argued that liberal parliamentarism was genuinely functioned in the past due to the limit participation of the poor and working classes. The elites or the representatives that worked in the parliament – either from the bourgeoisie, the aristocracy or the state bureaucracy- they shared a similar view of social interests. This is the only way that “government by discussion” could work (227). This analysis clearly echoed with Schmitt’s diagnosis of the crisis of parliamentarism in the early 1920s. Through the archival study, Scheuerman finds out that in this period, Schumpeter did exchange his view with Schmitt on this topic. He even encouraged Schmitt to work on his famous writing, Concept of the Political, and had a high opinion of it. In the meantime, Schmitt quoted occasionally Schumpeter’s claims about imperialism in his works. For Scheuerman, their disagreement on the solution of the crisis of parliamentarism is clear but not too far. While Schumpeter endorsed liberal elitism; Schmitt rather opt for a mass-based authoritarian plebiscitarianism. To put it in a nutshell, for both of them, homogeneity that dissolved the problem of legal indeterminacy is the prerequisite of a functional parliamentary democracy. Mass democracy leads only to a dead end.
Apart from Schumpeter, Scheuerman also examine the intellectual inheritance between Schmitt and Hayek. The critique of the modern interventionist state by Schmitt in the 1920s and 30s had a great impact on Hayek, which resulted in his magnum opus, The Road to Serfdom (1944). Hayek posited a dichotomy between general law and individual commands that the former should not refer to “the wants and needs of particular people”. It determines his understanding of the rule of law. To put it in another way, the society and the state should be clearly separated. The former is diversified and heterogeneous while the latter is not. The interventionist state they witnessed in the first half of the 20th century was, as Hayek adopted Schmitt’s thought, the phenomenon of the total state. It is different from the neutral state that liberal thinkers endorsed in the 19th century, insomuch as the state and society were now fused with each other in the age of mass democracy (254). It resulted in the establishment of welfare state and lawmaking for the sake of a particular group of people. It is not hard to find the affinity between Hayek and Schmitt’s critique of interventionist development that contributes to the decay of liberal parliamentarism. In fact, as late as 1976, when Hayek wrote a new Preface to The Road to Serfdom, he still admitted he was not free from the “interventionist superstition” and this tone of anti-welfare state polemics was indebted to Schmitt’s decisionist approach (256). Despite several differences between Schmitt and Hayek in terms of the endorsement of the pluralist party state as well as the epistemological skepticism that the rule of law is grounded on, Scheuerman reveals the uncanny intimacy between their thought. For him, it could somehow explain the marriage between authoritarian plebiscitary and neoliberal capitalism in the 20th century, particularly the myth of Chinese capitalism.
In the last part, Schmitt’s legal and political thoughts are engaged with the contemporary political issues. In particular, the renaissance of the Schmitt studies in America is caused by the warfare in the name of anti-terrorism. When we take the global scale of the state of emergency into account, the explanatory power of Schmitt’s theory seems to outweigh the mainstream liberal political thought or legal thought. Scheuerman endeavors to scrutinize the relevance of Schmitt’s view and see if his understanding and ideas could shed some new lights to our current plights. The white house gradually centralized its power in the past century. After the cold war, the US government has a new way to strengthen its power-counter-terrorism. The terrorist attack in 2001 marked a watershed of US history in the sense that the USA Patriot Act was passed spontaneously. The bill endowed the executive government with unprecedented great power to fight the enemies by all costs, including regularization of emergency authority, such as a suspension of human rights of suspects during anti-terrorist interrogation.
Apparently, in Schmitt’s doctrine of sovereignty, the emergency power fundamentally constitutes the idea of sovereignty. “The sovereign is he who decides on the exception”, he eloquently wrote at the beginning of Political Theology. Provided that the emergency power is triggered in face of crisis, Schmitt’s notion of sovereignty argued for the “unavoidability and ubiquity of dire crisis” and it leads to his fundamental belief of legal skepticism (269). The latter is comparatively far-reaching in the field of legal theory. Scheuerman is not going to challenge these conventional views of Schmitt. Rather, his writing shows that Schmitt’s views about emergency power originated in his early academic writings and he maintained these thoughts for several decades. In this case, Schmitt’s intimacy with National Socialism before and during the WWII is closely related to his own intellectual reflection of sovereignty.
More importantly, many accept Schmitt’s idea that authoritarian rule and even inhumane measures maybe necessary for some exceptional circumstance lest the state would collapse in the crisis, even though the debate concerning counter-terrorism seldom embraces Schmitt’s theory (292). Hence, Scheuerman finds it essential to revisit Schmitt’s idea of international politics critically and presents different ways to engage with it. Schmitt’s emphasis of crisis in the notion of sovereignty denotes that “crisis management would constitute a paramount activity for contemporary government.” (289) To encounter the unpredictable crisis ahead, Schmitt inevitably favors the centralized power of the unified executive government, which would at least potentially undermine the rule of law. Moreover, in the light that the law fails to anticipate all sorts of emergent circumstances, the sovereign power of the executive branch of government should have the absolute power and limit not by the ‘situational laws’. In other words, the sovereign power must be lawless, for the sake of dealing with unprecedented crisis and saving the normalcy of legal order. For
Scheuerman, the extremely skeptical view of norms of Schmitt, which demands the laws to be able to predict all sorts of circumstance, is problematic. More precisely speaking, it is assaulting a straw man. To endorse Andrew Arato’s claim, there is a spectrum between a purely formalistic legal order and the lawless, absolute sovereign power. A reasonable degree of legal constraint by means of a set of constitutional procedure should be plausible to contain the emergency power of the government (291) and make it consistent with the rule of law.
Scheuerman’s interpretation of Schmitt is well grounded, systemic and timely. His historical configuration contributes both to the Schmitt studies as well as the studies on intellectual history in America. Unlike a mere historical inquiry, Scheuerman endeavors to engage Schmitt with the contemporary debate in the field of legal theory, in order to find out how Schmitt’s legal thought would help articulate the legal problems we have, aka legal indeterminacy in the age of mass democracy. Yet, there are a few questions that this brilliant work should have addressed.
To begin with, Scheuerman strongly believes that there is a strong affinity between Schmitt’s theoretical reflection and his political decision of joining the Nazi party in 1933. Hence, he reconstructs a coherent theoretical view of Schmitt on legal indeterminacy by widely examining his works from the 1910s to the post-war period. It is, however, a bit surprise to find that in this book, Scheuerman seldom pays attention to the counter-side of the debate. Since George Schwab introduced Schmitt to the American intellectual circle by a series of English translation in the 1980s, a decade long debate emerged concerning whether Schmitt’s alliance with Nazi is motivated by his legal and political thought or not. American scholars like George Schwab and Joseph Bendersky strongly defended the ‘early Schmitt’ that Schmitt showed no sign of anti-Semitism or the empathy of National Socialism before 1933. On the contrary, Carl Schmitt was once a Kantian and then a conservative Catholic who devoted to be the guardian of the republican constitution. For the leftist side of interpretation, Schmitt’s legal and political thought before 1933 is far from legal Fascism. In contrast, he defended the newly born republican state of Weimar against the threat of populist movements and the formalistic positivism by developing a cutting edge doctrine of popular sovereignty. Scheuerman was apparently aware of their arguments and his article written in 1993 was an attempt to respond to these critiques. However, his response is far from satisfactory. He does not consider elaborating his counterarguments in his latest work, which, to a certain degree, undermines the validity of his approach.
The defense against the Fascist reading of Schmitt before 1933 is mainly twofold: historical and theoretical. Historically speaking, the anti-Semitic charge of Schmitt is questionable in a few ways. Many of Schmitt’s friends were Jews, like Leo Strauss, Walter Benjamin, Jacob Taubes, Franz Neumann, Otto Kirchheimer, and Waldemar Gurian. When he moved to Berlin to teach in 1927, the school he chose was Handelshochschulen, a new established school that had a reputation of being an institution with many Jews. He published nothing openly against the Jews before 1933. Most importantly, according to Gopal Balakrishnan, the honeymoon between Schmitt and the Nazi party is much shorter than he anticipated. Schutzstaffel commenced to investigate Schmitt’s opportunistic tendency towards anti-Semitism. It didn’t result in a catastrophic retribution by SS is thanks to the protection from Goering. In a letter to the editorial board of the SS paper, Goering urged the SS to stop further attacks on Schmitt.
With regard to the theoretically concern, Schmitt’s concept of the political and the emphasis of the social homogeneity aim not at promoting the purity of nation, don’t mentions the exclusion of the Jews. In the Concept of the Political, for instance, he clearly stated that the friend/enemy distinction is dispensable from the personal hostility or profitability. In contrast, it is about an existential relationship between political entities. He specifically traced the idea of public enemy back to Plato’s The Republic in order to distant from the idea of private enemy. The eternal existence of the enemy also constitutes to Schmitt’s political metaphysics of pluriverse. In short, identity coexists as diversity. It could also echo Schmitt’s early Catholic view that the Catholic Church is a complexio oppositorum that contains a wide spectrum of contradictory schools and thoughts without dismantling the papacy. Unless the Jewish group is existentially threatened the unity and order of the absolute constitution, it is hard to find a legitimate reason to annihilate the Jews in early Schmitt’s doctrine of popular sovereignty.
Another question is posed with respect to Schmitt’s preference of authoritarian plebiscite. Scheuerman repeatedly argues that Schmitt’s critique of normativism and formalistic liberalism is to justify his preference on sovereign dictatorship or authoritarian plebiscite, which paves his way to the Nazi party (109; 165; 218). He, however, does not respond to the republican interpretation of Schmitt. For the counter-argument, some argue that Schmitt had no intention to reject liberal parliamentarism entirely. Nevertheless, encountering the vulnerable political order of Weimar republic, Schmitt was rather devoted to save democracy by separating it from liberalism. Liberalism that appeals to universalism and deliberation fails to embody the social homogeneity that democracy presumes at the first place. In light of solving the problem of legal indeterminacy, Schmitt revisited the tradition of pouvoir constituant and developed his own approach of popular sovereignty, aka decisionism. Andreas Kalyvas used three moments of democracy to conceive Schmitt’s democratic doctrine. Hence, the emphasis of level of dictatorship is to manifest the political will that forms the order of the political community, instead of replacing exception with normalcy. At the end, the exceptional measures of sovereign are employed to restore the order for the sake of returning the power back to the normal political and legal order. In the Constitutional Theory, Schmitt sheds much light on the two pillars of the constitution, identity and representation. After the constitutional order is formed, the representation of the public will then will be endowed with the political power to execute the will of the people. It defines the second level of constitution, the positive constitution. The appearance of the people in the public sphere is to assure the representational organ of the state will stay as close as the people’s will. If so, it is unclear how Schmitt would prefer authoritarianism or even totalitarianism before 1933 at the expense of the normal representational apparatus of parliament.
In short, Scheuerman delivers a fruitful, well-grounded study on Schmitt’s account of legal indeterminacy and its legal and political consequences. Also, his brilliant critique of the decay of liberal parliamentarism is influential among the American thinkers in the early 20th century. To a certain extend, Schmitt’s thought shaped the landscape of the post-war American academia, as well as the contemporary reaction of the controversial political issues, such as counter-terrorism and the global status of emergency. His political decision of joining the Nazi is undoubtedly unwise, but his diagnosis of the immanent problems of liberal parliamentarism is still full of insights. This remarkable work would surely contribute much to the Schmitt studies as much as the debate of legal theory.
Balakrishnan, Gopal. 2002. The Enemy: An Intellectual Portrait of Carl Schmitt. London: Verso.
Bendersky, Joseph. 2016. Carl Schmitt: Theorist for the Reich. New Jersey: Princeton University Press.
Kalyvas, Andreas. 1999-2000. “Carl Schmitt and the Three Moments of Democracy.” 21 Cardozo L. Rev. 1525.
Scheuerman, Bill. 1993. “The Fascism of Carl Schmitt: A Reply to George Schwab.” German Politics and Society 29: 104. ProQuest.
Schmitt, Carl. 2011. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press.
Schwab, George. 1994. “Contextualising Carl Schmitts concept of Grossraum.” History of European Ideas, 19: 1-3, 185-190. http://doi.org/10.1016/0191-6599(94)90213-5.
Schwab, George. 1989. The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt Between 1921 and 1936. Westport: Greenwood Press.
 George Schwab, “Contextualising Carl Schmitts concept of Grossraum,” History of European Ideas, 19 (1994):1-3, 185-190, DOI: 10.1016/0191-6599(94)90213-5.
 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press, 2011), 5.
 George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt Between 1921 and 1936 (Westport: Greenwood Press, 1989).
 Joseph Bendersky, Carl Schmitt: Theorist for the Reich (New Jersey: Princeton University Press, 2016).
 Bill Scheuerman, “The Fascism of Carl Schmitt: A Reply to George Schwab,” German Politics and Society 29 (1993): 104, ProQuest.
 Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt, (London: Verso, 2002), 207.
 Andreas Kalyvas, “Carl Schmitt and the Three Moments of Democracy,” 21 Cardozo L. Rev. 1525 (1999-2000).