Carl Schmitt was one of the most controversial political theorists of the 20th century. We will explore his biography, along with the relationship between Schmitt and the Nazis. Is it possible to salvage some elements of his work even if there is some continuity between it and Schmitt’s abhorrent political behavior? Afterward, an important element of Schmitt’s thought will be analyzed: his discussion of sovereignty. In particular, we will take a look at his answer to an important question: what is the relationship between sovereignty, democracy, and dictatorship?
Carl Schmitt’s Life
Carl Schmitt spent most of his life as a legal academic but was also a practicing lawyer. His specialty was constitutional law, the relevance of which will be obvious by the end of this article, but he was a man with broad intellectual and creative interests.
Much of his earlier years were spent attempting to develop a literary career (or at least write some respectable novels). His style was compared, by him and others, to Dada—a kind of avant-garde literary and artistic movement that emphasized the irrational and nonsensical. Schmitt was also a political journalist.
Undoubtedly the most important aspect of Schmitt’s biography, and the thing which justifies this brief biographical section, was his support for the Nazis. Schmitt was very full-throated in his support, climbing to various significant academic, legal, and political positions during the Nazi regime. Soon after the Nazis came to power, Schmitt was denouncing his Jewish colleagues and intellectuals who had fled Germany: of the latter, he famously remarked that “they have been spat out of Germany for all time.”
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Debate continues about how far this support was ideological or careerist—he hadn’t expressed anything like the same deal of Nazi sympathy before they came to power. As we shall see, there are elements of Schmitt’s work that seem to justify parts of the Nazi project, while the implications of other parts of his work with respect to Nazism aren’t so clear.
Certain other intellectuals who had, at one time or another, expressed Nazi sympathies and co-operated with the Nazi regime did express remorse, or at least attempt to justify their behavior during the period of Nazi rule (the philosopher Martin Heidegger is an example). Schmitt, on the other hand, was unrepentant. He was highly critical of the proceedings of the Nuremberg Trials, taking up the defense of certain ex-Nazis who were being tried. He himself was investigated during this process.
Can Parts of Carl Schmitt’s Philosophy Be Salvaged?
A further point of debate, which is not so much historical as philosophical, is if and how far one can attempt to salvage valuable intellectual contributions from someone like Schmitt, even if we accept that parts of his intellectual work as indeed of a piece with his Nazi sympathies.
This raises the question of what we are really doing when we read political theorists, particularly those who were writing in a political context significantly different from our own. Perhaps we are confident that there are timeless prescriptions to do with how politics should be done and how societies should be organized, but we might equally try to read political theory as inseparable from its historical context.
This would mean that we’d have to consider those who made grave errors, like Schmitt, as just one in the litany of those who have failed to fully grasp their political situation, but have failed in an interesting, provocative way. The history of political theory is, almost by definition, a history of such interesting failures in any case. Having said that, what does Schmitt have to say about politics?
Carl Schmitt on Sovereignty
This article will focus on the idea of sovereignty in his work, mostly because this is one of the concepts which has been most influential on later philosophers. In other words, of all of Schmitt’s failures, this is perhaps one of the most interesting.
The crux of Schmitt’s conception of sovereignty can be boiled down to the claim that there can be no legal order without sovereign authority. The sovereign here is defined against the law, the general legal norms which certain (liberal) constitutional theorists argue should be the ultimate basis of the actions of the state.
The sovereign is that which applies general rules to particular cases, and by that same token, makes determinations about exceptions. In other words, the sovereign decides what counts as a normal or abnormal case from the point of view of the law. Thus one of Schmitt’s most famous contributions to philosophy: the idea that the sovereign is whoever decides on the state of exception.
Law as Grounds
On the face of it, this appears to suggest that Schmitt assumes that laws are just grounds—that they are just reasons why certain things should be done. Yet laws can also articulate competencies—a law can describe who is fit is interpret it. In other words, the law may not just say what should be done in such-and-such case, but describes who is to determine if and how it is applicable to such cases.
The point, as a liberal might put it, is that it does not necessarily contradict the conception of a lawful government to say that someone must be given responsibility for applying or interpreting the law.
One might say that laws can pick the relevant people out for themselves, making a sovereign superfluous. Yet Schmitt might reasonably point out that this kind of response has rather missed his point. Even if laws do offer guidance about who is meant to apply them, implicit to the very idea of a law is, in some sense, someone who determines what counts as the “normal state” of society.
The degree of social stability given by this “normal state” is required to make laws intelligible, insofar as the possibilities described by a system of legal procedures are meant to account for the range of possible social practices.
Even accounting for the fact that the law will develop over time according to changes in circumstance, to hold that a cumbersome, slow-moving legal machine can keep up with events is to suggest that societies do not change all that quickly. But, as we know, they can and do change quickly.
Indeed, the very idea of sovereignty for Schmitt was determined by the possibility that the sovereign can identify the moment of complete exception—the moment when, in short, everything has changed and the guiding norms we have will no longer tell us what to do, or will lead us only to make mistakes.
Political Turmoil and the State of Exception
Schmitt, who lived through both World Wars in Germany, was all too aware that this was not how society and politics always worked. Indeed, much of his most important work was done in the Weimar period between the wars. This was a period when extreme political fractiousness and economic turmoil were accompanied by a weak, indecisive government (or so goes one understanding of the period).
The underlying political epistemology—that is, the conception of political knowledge—in Schmitt’s work is quite intriguing. On the one hand, he is clearly ruling out the possibility of pre-empting all possible conditions in such a way that we can make laws ahead of time that fully account for them. Yet at the same time, it must—at least in principle—be possible to give an account of the social conditions of a given moment, because the sovereign act is a determination of when these conditions have definitively changed.
Schmitt cannot, therefore, be understood to advocate a kind of total skepticism of political knowledge, though squaring these two epistemic claims isn’t obvious or straightforward.
Could Carl Schmitt’s State of Exception Actually Occur Now?
Another puzzling element of Schmitt’s work is this: when he says that sovereignty is definitive of the legal order, what does he really mean? No one can suspend the law entirely in the way Schmitt seems to think the sovereign should be able to in the existing, Western liberal democratic form of government. Does that mean these places do not have a legal order?
Certainly, the United States, France, the United Kingdom, Germany, and so on do seem to have some kind of legal order. Is Schmitt merely suggesting there is a frailty in the system, that these countries could be better run? Or is he suggesting that, given the existence of a legal order in these places, we must assume that there is a sovereign power somewhere submerged within the nexus of legal and political institutions?
One would think that if sovereign power is held by any one entity, it would be the army, given that the sudden suspension of the law appears to at least resemble something like the institution of martial law. It is, perhaps, no surprise that Schmitt’s work has proven especially influential in China, where the army has extraordinary political power.
Yet Schmitt at least purported to believe his work was compatible with democracy, and that exceptional moments of sovereign power are constitutive of the democratic norm—he cites the dictatorial elements of the French revolutionaries as an example. It is difficult to know how seemingly strong, established democracies would behave in moments of existential crisis. Certainly, it is conceivable that the rule of law would be partially suspended or altered, though whether a total sovereign power would emerge is less clear.