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So What About Schmitt
I've a handful of favorite plaints against procedural-parliamentary-liberal-juridical- constitutional-democracy. Democracy is by definition anti-minority. Liberalisms greatest strength, its apotheosis of the individual, is likewise its greatest failing. Then there's the devastation of Society Must Be Defended. So it was that I was perfectly well prepared to add another from Schmitt when a book discussion group I've recently joined here in Toronto took up Schmitt's Political Theology. I was bowled over by my reading of "The Theory of the Partisan." Not so with Political Theology. Sure it displays a certain brilliance and contains a few rather memorable lines. However, the oft bandied about truism that Schmitt's critique of liberalism has never found its answer before or since strikes me as extraordinarily short-sighted.
While Kelsen, as the major target of Schmitt's venom, appears to me to get what's coming his way, the answer to Krabbe (Ch. 2 - pp. 21ff in my edition), at least Krabbe as presented by Schmitt, seems to me rather unimpressive. As Schmitt describes it Krabbe posits "[t]he modern idea of the state" as replacing
the personal force (of the king, of the authorities) with spiritual power. "We no longer live uner the authority of persons, be they natural or artificial (legal) persons, but under the rules of laws, (spiritual) forces ... These forces rule in the the strictest sense of the word. Precisely because these forces emanate from the spiritual nature of man, they can be obeyed voluntarily."
Closely related, according to Schmitt, are the associative theories Gierke and Preuss. Such a coummunity is understood to be "based on associations and constitued from below, as an organization that d[oes] not need a monopoly on power and could thus also manage without sovereignty."
Schmitt's big answer to Krabbe is that a legal decision always requires a personal element and that a "distinctive determination of which individual person or concrete body can assume such an authority cannot be derived from the mere legal quaility of a maxim. This is the difficulty the Krabbe ignored" (31).
So what? Of course he ignored it. By its very nature, Krabbe's theory, as determined from below, cannot answer such questions in advance. This, however, does not mean anything like "everlasting conversation" (Schmitt's charge in chapter four) or an inability to render decisions in critical cases. Instead what it suggests is that particular democratic systems are required to make such determinations according to their particular constituencies. No generalized theory from below can set out which individual, group, or other entity determines the political direction in a crisis, but each liberal normative system is free, under such a theory, to set forth the legally recognized way of dealing with crisis.
Now it's easy to see why folks like Kelsen and Wolzendorff (25ff) come into trouble with respect to Schmitt. By talking too much in advance about how to protect the system when trouble strikes, they give far too much room for Schmitt's version of a commissarial or sovereign dictator. A particular consitutional democracy may decide to set up some version of such a commissarial dictator or it may vest ultimate decision making power in a group of judges such as a supreme court or with a representative body such as congress. It could, as holds in the U.S., split power among such bodies (take for instance the variety of real decision makers in instances as diverse as Japanese internment - everyone should read Justice Jackson's wonderful dissent in Korematsu v. U.S. at some point - Watergate, Clinton's impeachment, Bush v. Gore, and Guantanamo). Hell , to meet the criteria of Schmitt and the conservative thinkers he draws on, a powerball system could be set up to make decisions. It only matters, after all, that a decision be made, not that the right decision be made.
Am I missing something here? Is Schmitt saying something more subtle than I'm getting at this point?
So by way of further introduction, I'm Old, and I intend to post here a couple of times a month or more. As stated earlier, I am a street pastor working with homeless folks in Toronto for the Mennonite Central Committee. I'm remaining officially anonymous outside the comment boxes as I will feel more freedom that way to discuss particulars of work with my friends from the street. I have posted infrequently over the last couple of years over at Adam Kotsko's the weblog. I had intended for my first post to be somewhat different, but I am saving that one for a few weeks time. One of the main topics there will be the published work of a LS contributor who is currently away from the computer. Glad to be on board.
By Doug | August 1, 2007 | Permalink
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Chapter 2 of "Political Theology" is concerned with criticizing liberal constitutional theories of the state as reducible to the rule of law. The main point is that law can not constitute an entirely self-regulating, self-determining system of norms. The analysis is centered around what is involved in the notion of "juridical form" and criticizes the effort to render it self-sufficient, whether under Neo-Kantian notions of "form" or several others. Schmitt argues that juridical norms always involve a moment of application under contingent circumstances that can't be derived from the systematization of legal norms in the liberal fashion, and hence the validity implicated by the notion of "juridical form" is distinguishable into the generalized normative component and the component of application which necessarily involves a nonformal decision. In other words, laws are not just systems of norms, but, as carrying legal "force", involve an element of decision and command, which is essential to the whole notion of "juridical form", to the specificity of any "rule of law" as a distinctive characteristic of states. There will always be areas of indeterminacy in any system of laws, exceptions which "prove" the rule,- (and, indeed, show forth the existence of the rule precisely insofar as the decisions that they call for must re-enforce an understanding of the system of rule),- and such areas are not explicable except in terms of the assignment of the power to make decisions, which brings out the issues of legal competences, "persons", and sovereignty. The sovereign is "he" which decides the exception, which under "normal" circumstances is recessive, but comes to the fore in political and constitutional crises. The sovereign, as "he" who decides the exception, is not per se identified with any specific person, state, constitution or social agency, but, formally speaking, is up for grabs politically, given the intrinsically conflictual and competitive "nature" of the political, but is always involved in the establishment and maintenance of "juridical form" under any auspices whatsoever, including, e.g., the revolutionary party.
In other words, Schmitt is rejecting not just the notion of an autonomous or self-sufficient and self-replicating "rule of law", but the basic liberal fiction of the state as a neutral arbiter amongst competing societal interests, which is precisely what Krabbe is basically propounding, and which suppresses the issue of the sovereign, -(which is not to be identified with the "whole" of the state, but also not necessarily with the state at all)-, by assuming the "normal" condition as perpetual, suppressing the "exceptional" which nonetheless is always implicitly operative. That Krabbe "spiritualizes" the issue in terms of "voluntary", self-determined compliance to the law means that he disperses the "force" of law fictively across the variously constituted "interests" of "society" without discrimination, while assuming that all such "interests" would internalize and recognize the law. Schmitt denies any such "neutrality" for any state or sovereign, since the whole point of the sovereign is to generalize a "public interest", in terms of whatever general decision, which the sovereign is charged with preserving or altering. The sovereign, in other words, is always an interested actor or agency among other such interested actors, but one charged with the need to preserve some order of general interest. The "associationist" concerns of the other legal theorists mentioned are organicist accounts, whereby the order of laws expresses the "spirit" of the people,- (in contrast to Anglo-Saxon accounts of interest-group pluralism that Schmitt criticizes elsewhere),- which is another version of identifying the "force" of law immediately with the order of the "people". The chapter ends with a line about the production of aesthetic form requiring no decision, which together with Neo-Kantian accounts of "transcendental" form and Weberian accounts of "technical" form, for Schmitt, miss the specific problem of "juridical" form that law must take, as possessing legal "validity" and thus "force". Needless to say, he associates such accounts of "form" as bound up with a naturalistic scientism desiring to reduce political-legal problems to "lawful" regularities, which misses the normative, hence imperative, status of legal-political issues, which would be part of why he finds the analogy between the juridical and the theological fruitful.
Obviously, the “sovereign” is not the only one who decides, and the recognition of such decisions depends upon the decisions of other societal actors. Schmitt would subsequently define the political in terms of the friend/enemy distinction, such that, only through the identification of who one’s enemy is, can one clarify oneself and understand who one’s friends, i.e. political allies, are. The same process is meant to account for “sovereignty” as the preservation of the public interest and the juridical order of law. Some “final” decision organizing the state and its social orders is required for the existence of the same. Which is not to say that any such decision is historically “final”, only that decision-making processes involved in the organization of a state and its legal order “must” be able to achieve “decisive” finality, else no such state and order exists. That would be why the “power ball” analogy fails, since, while every decision contains an arbitrary, circumstantial component, the efficacy of “sovereign” decisions, that is, their capacity to organize a polity, is not irrelevant to the evaluation of such decisions- and their consequences.
The interest in Schmitt, then, is his bringing out of the constitutional/political aporia or paradox between the constituting and the constituted power that liberal constitutional theory disguises. That is the existential contest between concrete “orders of life” that he seeks to highlight. What he brings out through Donoso Cortez is the loss of any traditional “foundation” which would decide the issue. The fact that he ends the book,- or, more accurately, the pamphlet,- with Bakunin as the devil conceals the fact that behind the liberal legal theorists, what he’s really responding to is Lukacs’ “History and Class Consciousness”, with “political theology” intended as a rightist riposte to Marxian ideology critique. But he’s in ironical agreement with Lukacs with respect to Bakunin.
Posted by: john c. halasz | Aug 3, 2007 12:06:33 AM
Doug, your question (and John C.'s comment) bring to mind Rousseau's solution to the problem of the "general will" in The Social Contract. Having distinguished between the general and particular wills and based his whole theory of the social contract on the possibility of a "general will" to which all individual, particular wills can accede, he asks how such a general will is in fact possible, given the fact that any group large enough to form a government (polis, city, etc.) will be far too diverse and rambunctiously close to the state of nature to coalesce around anything. His answer is, well, actually it isn't possible, so what we need is a "law-giver" who claims (falsely) to speak for God and by that deception can bring the rowdy mass of particularities into sufficient line that a "general will" can be said to emerge. That is, the "general will" is a fiction founded on a deceit.
Bringing this back to your post, I think Krabbe's associational account of government from "below" via "the spiritual nature of man" (or, alternatively, the sittlich commitments of the community, as a Hegelian might have it) stands in place of Rousseau's general will, and Schmitt's critique is quite similar -- in fact, I think it's essentially the same point with a different twist -- as Rousseau's claim that, in real life, the general will is produced by an act of (personal or institutional) force, whether that force is via literal physical force or, more effectively, via a political deceit (and of course the more theological authority the deceit can claim, the more effective it will be, as we all know all too well these days . . . .).
To use your language, it may well be true that "each liberal normative system is free, under such a theory, to set forth the legally recognized way of dealing with crisis." Schmitt's first point would be, I think, that in the final instance there is no guarantee that such "legally recognized ways" will be sufficient to deal with a genuine crisis, and thus that the personalistic element of force will always, in the ultimate moment, emerge -- think of Alexander Haig claiming "I'm in control here" after the attempted assassination of Reagan, or Dick Cheney all set to give orders from an underground bunker after 9/11. His second and more profound point, which I think is much misunderstood even though it's pretty simple, is that this structure of crisis and personalistic force is buried in every legal judgment, no matter how routine, by virtue of the fact that no general rule of law is self-applying -- someone or institutional combination of someones always have to interpret and apply it for it to become effective in the given case. And finally, vis a vis Krabbe, Rousseau and the general interest, the proposition that social mores can be so firm and unambiguous as to require no personalistic enforcement is the dream that Rousseau saw through -- when someone (and especially a politician) begins not just talking about the "spiritual nature of man" but drawing decisive judgments from such a "spiritual nature" (the unnatural nature of homosexual marriage, to cite one crude example), it's time to recognize Rousseau's false prophet working his magic.
Posted by: Adam Thurschwell | Aug 4, 2007 12:40:45 AM
I have to agree with john c. halasz (and i especially appreciated his comment regarding the silent conversation between Schmitt and Lukacs). As I see things, Schmitt's critique of Liberal, procedural political programs is essentially the following: on the one hand liberal theories are incapable of addressing the difference between the legitimacy of an act and the juridical system of concepts employed in its legitimation. that's why, for instance, he says, "The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existence, which derives from the exception. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition” (Political Theology 15). It's only when something cannot be subsumed by a particular concept that the (il)legitimacy of that concept is foregrounded.
On the other hand, Kelson et al. obscure the non-coincidence of legitimacy and legitimation (which is part of Agamben's point in State of Exception [p.84-86]).
Schmitt's analysis, then, is an attempt to identify when and where we can actually distinguish between these two elements, which liberal conceptions of "Juridical Right" efface. And, in distinguishing, adjudicate between competing courses of action. So, Schmitt's critique of, e.g., Krabbe isn't that his theory "cannot answer such questions [about legitimacy] in advance," but rather that the discrepancy between legitimacy and legitimation cannot be addressed at all -- for all intents and purposes, Krabbe collapses the two together. And such a folding of one problem into another amounts to a static system.
What I find interesting is that Schmitt's sociology of concepts, and the analogical relationships he attempts to make central to his account, rely on a version of what Blumenberg calls "the Secularization thesis" (cf. The Legitimacy of the Modern Age 89-101). That is, Schmitt's own attempt to distill to authority of sovereign action from a concept of god, which has been transfered to the politico-juridical sphere, amounts to saying that there can be no truly legitimate juridical order. Hence there will always be some exception which can be used to contest the existing juridical apparatus. But this seems to be tantamount to arguing for something like a permanent revolution, no?
Posted by: Alexei | Aug 6, 2007 4:09:48 PM
Nice post Doug. I'm also one of the new folks to LS. I hope to post something on Machiavelli and Leo Strauss soon, once I get moved into my new place and find some time for writing. I have also just finished an MA on the mysterious Schmitt. I found your reading to be very careful and insightful...
John: It is interesting what you say about Schmitt and Lukacs. The problem is that "History and Class Consciousness" wasn't even published until 1923... I believe that, technically speaking anyhow, the "Crisis of Parliamentary Democracy" is the dialogue with Lukacs, and not PT as I understand you to be arguing.
Posted by: Barret Weber | Aug 8, 2007 2:54:02 PM
Barret Weber:
The book was published in 1923, but my recollection is that many of the essays comprising the book were written and published separately. Having done a quick internet search, only the central "Reification" essay was new to the book and first published in 1923, the other essays are dated between 1919 and Sept. 1922.
Posted by: john c. halasz | Aug 8, 2007 6:49:06 PM
Thanks for the clarification, John. That is very interesting then. As I said, I knew of the connection with the 1923 works (in John McCormick's book on Schmitt, for example) and the connection to Max Weber, but PT is usually understood as being more closely connected to Kierkegaard or even resembling some sort of a dialogue with or even against Spinoza.
Posted by: Barret Weber | Aug 8, 2007 8:20:56 PM
Sorry to all for the delay in responding to comments. I've been in Chicago.
John C.: Lot's going on to respond to in your comment. I'm certainly interested in the argument re: Lukacs being the specific target of his righist "political theology" - especially interesting in light of Taubes' response back to Schmitt with a leftist political theology. I would like to pursue this line more thoroughly at some point.
I, for one, don't think Schmitt has a wide enough net. I don't agree that he is dealing at all persuasively with "several other" attempts to render the legal form self-sufficient. It seems to me that it is a very narrow conversation he's entering, and that's part of the reason I don't think it works. Jewish law works quite well as basically self-sufficient system, for instance. One can understand why he doesn't go after that, but the Anglo-American form presents a far more subtle attempt at legal pre-eminence. I basically am arguing that as it stands it could easily be made impervious to Schmitt's critique (of course this is perhaps in large measure because of its system of checks and balances which doesn't see law as all). The mention of Society Must Be Defended was not accidental. Foucault's reading of law as the main tool used by French and English opponents of dictatorship tracks well with a reading of liberal political power as spiritual-legal.
If Krabbe is as insistent as Schmitt suggests with respect to an attempt to eliminate personal elements, then this is certainly a major blunder and worthy of criticism. It isn't, however, damning. There's no reason one couldn't jettison this part of the theory and simply argue that, yes there are personal elements, but they are easily mitigated by appellate courts (at times with multiple judge panels), checks and balances, etc.
If Schmitt were rejecting the idea of the state as a neutral arbiter and its attempt to mask the split between constiuent and constituted power, then I'd be much more sympathetic. But I didn't catch that happening. Is this elsewhere in his work? Between the lines? Or have I flat out missed it? It seems to me that his constant harp is with respect to the exceptional decision, and specifically with Krabbe it is that his theory can't set out in advance who makes the exceptional decision. And that's what I have gone after. Perhaps Schmitt's criticism of liberalism is more persuasive elsewhere. To me, it just isn't here.
You point to the subsequent development of friend/enemy thinking. I think this is more relevant stuff, but I don't think it works then as an argument against liberal democracy. Again, I refer to Society Must Be Defended. It is liberalism's rejection of dictatorship via an apotheosis of law that makes it possible for the friend/enemy distinction to be distributed across the entire social order and not just limited to threats to the sovereignty of a monarch.
Posted by: old | Aug 9, 2007 10:09:09 PM
Adam, As stated in my previous comment to John C., if there really is a belief that the personal can be eliminated, then of course there is a big problem. I just think that if liberal theorists did consistently maintain the maxim that true power is constituted from below, then they would have the tools to navigate around Schmitt's criticism. It is surprising to me that so many have taken him to be basically unanswerable.
As for the point about exceptions basically being buried in every legal decision, I don't see Schmitt as making that point particularly strongly. And, it doesn't seem to me that radical of a point. It's not at all that radical or damaging or historically new for a legal scholar to suggest that law works primarily by analogy since no set of legislation could ever hope to cover every contingency. Analogical reasoning in law has been Western jurisprudence's way of dealing with the exception for millenia. To me this doesn't have to conflict with the idea of power as spiritually constituted from below (and I think the point is far more about spirit in a Hegelian sense than what I suppose you to be referring to with the gay marriage line). Legal theorists of the 17th and 18th century were able to draw on the tradition of common law as a weapon against the king because it was a mechanism by which they could argue that society over time and as presently constituted had developed a more potent form of authority.
Posted by: old/Doug | Aug 9, 2007 10:28:49 PM
Alexei, you will have to say more for me about what you are attempting to get at with respect to the distinction between legitimacy and legitimation. Much of what you say seems to be riding on that, but I'm not sure I get what you are saying. In a nutshell, it seems to me that Schmitt's consistent point is that liberal democratic normativism doesn't have the theoretical resources to determine who decided in exceptional or crisis situations. But the tradition of normative democracy has shown that it can vest such a power in a number of different political forms. Hence the list I offered. While Adam's point about Haig or Cheney shows that a dictatorial figure can be the one to sieze power in critical situtions, the other examples I offered showed that, in the American system particularly, it has also sometimes been congress or the supreme court who has been the decision maker in crisis situations. I would argue that which body made decisions in particular situations was governed by a variety of factors, pre-eminent among them a certain measure of social capital attached to particular decision making bodies. Social capital that was garnered primarily by prior decisions of some import that were made in a way that played well with the general public and thus tapped into the well spring of power as spiritually constituted from below.
Posted by: old/Doug | Aug 9, 2007 10:45:02 PM
Barret, I'm glad to know that you found my reading careful and insightful. Looking forward to your post or posts on Machiavelli and Strauss.
Posted by: old/Doug | Aug 9, 2007 10:48:37 PM
Tiny intervention: the attack on absolute sovereignty via fundamental/ancient constitution discussed by Foucault in SMBD is not limited to liberal opponents of the monarch. The argument more or less holds with the Levellers, True Levellers and Diggers (although they seem like socialists before the idea was ever conceived - or at least the scholarship following from Hill seems to suggest), but it is complete nonsense in the French case. Putting Boulainvilliers, Montesquieu, Mably, Buat-Nancay and, indeed, Dubos in the "liberal" camp makes no sense at all. (Foucault's reading of Montesquieu is pretty poor in SMBD, by the way.)
Posted by: Craig | Aug 10, 2007 12:25:59 AM
Whether particular folks named by Foucault in SMBD could be considered liberals is much less relevant than the fact that liberal normativism took over the idea of law as soveriegn over against a dictator.
Posted by: old | Aug 10, 2007 8:00:43 PM
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