Carl Schmitt, the Lex van der Lubbe, and Nuremberg

Moral indignation is a base emotion that should not be indulged by individuals who understand the fallable nature of humans and their invariably inconsistent ethical systems. However, when one is repeatedly bombarded by the sanctimonious posturing of otherwise benighted individuals, it can be useful (and entertaining) to highlight glaring instances of moral hypocrisy perpetrated by their moral heroes. Carl Schmitt's legal memorandum on the legal principle nullum crimen, nulla poena sine lege, prepared on behalf of the industrialist Friedrich Flick for his defense at Nuremberg, is a tactful illustration of liberal moral (and legal) hypocrisy.

In March 1933, just a month after the Reichstag fire, the National Socialist government in Germany promulgated the Lex van der Lubbe, which increased the punishment for certain crimes from life in prison to death and provided retroactive capital punishment for offenders who had already been convicted.

There was immediate outrage in America and England, with prominent jurists declaring that Germany had violated the sacred western prohibition against the enactment of retroactive laws. The outrage and public pressure were so intense that Hitler changed van der Lubbe's sentence. Contemporary scholars nevertheless regard the passage of this law as one of the terminal events in German politics, propelling Germany toward absolute and arbitrary dictatorship.

Fast-forward 12 years, Germany is in ruins, and the Nuremberg trials are getting underway.

U.S. Supreme Court Justice Robert Jackson was a moral crusader who took a leave of absence from SCOTUS to zealously pursue justice at Nuremberg as chief prosecutor. While Jackson is now infamous for losing his temper and being bested by Goering on cross-examination, Schmitt's memo suggests that Jackson spearheaded yet another embarassing legal enterprise at Nuremberg.

Jackson vigorously advocated charging Nuremberg defendants with the crime of war of aggression, i.e., charging them with the crime of, in some sense, aiding in an aggressive war against other states. Jackson succeeded in his crusade, and several defendants were imprisoned for aiding in a war of aggression by planning or financing it directly or indirectly in Germany (Flick was ultimately not charged with conspiracy to commit aggressive war.)

Yet as Schmitt's memo painstakingly demonstrates, it was impossible to claim under either classical European international law or post-League international law that an ordinary European citizen acting qua citizen could be held personally liable for a war of aggression. Indeed, even attempts to hold Kaiser Wilhelm liable for WW1, which America had opposed from the beginning, were eventually abandoned by the French. Thus, as a result of the European tradition of framing war as a dual between equals without regard to either side's claim to justice, no individual European citizen would ever have contemplated that participating in industry within an aggressor nation would have exposed them to decades in prison. In prosecuting defendants for this crime, the Nuremberg court had therefore violated one of the sacred principles of legality - a principle the violation of which liberals had once bellowed about when Germany enacted the Lex van der Lubbe.

NATO: friends and enemies

Schmitt once wrote enigmatically in his Glossarium, "Tell me who your enemy is and I'll tell you who you are."

Twenty years after the collapse of the USSR, NATO is in shambles, lacking a concrete identity and, judging by its recent showing in Libya, an effective military presence.  The disillusionment of the alliance's greatest benefactor, echoed in Gates's "blunt warning," points to a bleak future.

The sorry state of the alliance suggests that the abstract enemy "terror" is just as weak at delineating real divisions as the abstract "bourgeoisie" was for communists.  As real communism quickly dissolved into genuine political conflicts with concrete enmity between putative communist nations and ethnicities (Russia against China, for example) or conflicts over actual resources, so the war on terror has allowed supposedly anti-terror forces to fracture.  NATO infighting, feet-dragging, and willingness to arm and support forces formerly identified as terrorists suggests that the abstraction of "terror" is insufficient to preserve NATO as an alliance of friends with a specific, concrete identity.

The existence of a unified, concrete enemy permits nothing less than political intransigence for opposing allies. The source of NATO's decline is echoed in Nietzsche's advice:

Better an enmity cut from one block
than friendship held together by glue.

The Carl Schmitt Library

A list of volumes from Carl Schmitt's library, which at the time of its confiscation in 1945 by American forces numbered an estimated 6,000 items (and which was later supplemented), is being compiled by the Carl Schmitt Gesellschaft.  Glancing at it only briefly has revealed several interesting authors including Celine, Oliver Wendell Holmes Jr., Theodore Adorno, Bertrand Russell, Ludwig Wittgenstein, H.L.A. Hart, and the infamous Schmitt plagiarist and prophet of the New Right, Francis Parker Yockey.

The list is available here: http://www.carl-schmitt.de/download/biblio-cs.pdf

Aristocratic Liberalism: from Absolutism to Democracy

"Aristocratic Liberalism" is likely an inappropriate label from a technical perspective for the tradition of thought running through the works of authors like Tocqueville, Burckhardt, Jouvenel, Kuehnelt-Leddihn, and most recently (and perhaps most forcefully) Hoppe. Nevertheless, given these authors' aversion to nationalism and democracy and preference for aristocratic liberty, individualism, and economic analysis, "Aristocratic Liberalism" is apt for the purpose of distinguishing this tradition of thought from the "storm clouds of a completely different type of traditional rhetoric" - the pragmatic-populist and nationalist forms of revolutionary conservatism that characterized the thinkers of the third reaction.

Below is a short summary of the analytical narrative of political power suggested in the writings of many of these authors, and especially in the works of Jouvenel and Hoppe.

Two terse and contentious definitions

A notable/noble/aristocrat is a self-sufficient individual with resources adequate for self-sustenance and the physical enforcement of his liberty against others. He is a man of good stock with excellent physical and mental capacities, good character, future-oriented goals, and a relatively loyal and equally robust extended family. Often he is an independent power exercising authority over a set of consenting individuals, as in autocephalous societies like medieval kingships where a federation of aristocrats is presided over by a "king", or unwilling individuals, as in heterocephalous societies where kingship is imposed exogenously through conquest. Such a man is "free" in the ancient sense of the term.

The masses, in contrast, are comprised of individuals who are only self-sufficient to a limited extent and who, if at all, occupy positions of authority with a very limited scope, such as the head of a family. Often they are subject to the authority of the notables. Here we find the early bourgeoisie, the peasants, the proletariat, the serfs, and slaves.

With these definitions in place we can assert an equally contentious axiom of human behavior:

Man has a will-to-power such that in every association he will, other things being equal, inevitably attempt to maximize his power and aggrandize his person at the expense of others in that association.

Absolutism and equality

Wherever there is a set of nobles and each has relatively equal military and economic resources, there will be a true balance of powers and the tendency toward absolutism will be muted. However, where there is a chance for one noble to compel obedience from the others, there will be conflict, from which the positive relationship between absolutism and equality emerges. The reason for the conflict is clear: the independent authority of the less-powerful nobles represents an obstacle to the imposition of the aspiring absolutist's will.

Historically, the two principle ways for the absolutist to conquer the federation of conquerors are 1) by appealing to the interests of those subjugated by the rival nobles (Caesar), or 2) by conquering foreign peoples and employing them in offices traditionally performed by the other nobles (Alexander). In each case the authority of the exalted is marginalized at the expense of uplifting the unexalted.

The conquest of the conquerors does not signal the end of absolutism's egalitarian march; instead, the absolutist must continue down the hierarchy of independent authorities until there is no longer any impediment to his will. In each case those who are subject to, or enemies of, the authority in question ultimately benefit from absolutism's attack on the authority. Below the rule of the nobility are the religious, ethnic, municipal and familial authorities, all of which present potential obstacles to the absolutist's power, and all of which subjugate a potential class of new allies for the aspiring monarch.

But this trajectory is not followed uniformly to its conclusion in all possible associations. In non-democratic manifestations of absolutism, such as those that obtained in early-modern Europe, the process of equalization is arrested by external and internal restrictions.

External restrictions include the existing effective authorities that remain independent by virtue of their physical distinction from the personality of the absolutist, such as the Church, the nobility, and the common people. The physical distinction between the monarch and other authorities magnifies class-consciousness within each authority so that the authority is strengthened vis-a-vis the monarch. Thus we see in the history of absolutism that the triumph over traditional authorities was rarely complete.

Internal restrictions originate from the absolutist himself and include those cosmological and religious principles that govern the scope of an individual's will-to-power as natural law did in the middle ages and Christian common law did in the age of absolutism. In addition to the moral and religious principles that may temper his appetite, economic calculation itself provides an internal restriction on the absolutist, as Hoppe has demonstrated. These restrictions explain the relatively "conservative" and pious dispositions of many monarchs.

Most of the external and internal distinctions are only eliminated with the success of the revolutions against absolutism. Empowered by the egalitarian creations of the absolutist, the masses finally wrest control of the monarch's apparatus for the enforcement of his will - the State - from the monarch himself. Borrowing the legitimacy accumulated by the State over the centuries of its growth, the masses then set about eliminating every opposition to its authority. In the place of the concrete personality of the monarch they set a whole range of egos, but the goal of the state remains the same, and its power increases.

No longer the manifestation of a single concrete person but rather the embodiment of the will of everyone under its power, the State is able to eliminate nearly every external restriction on its power. As Jouvenel shows, what the absolute monarch failed to do over the course of several centuries is accomplished in a few years by the new "republics," which used the limitless scope of democratic legitimacy to effectively reach into every sphere of life.

No longer requiring the legitimacy of divinity to justify the state (for the State is now a creation of the people), the State abandons its commitment to a supernatural origin of law. Divine law is supplanted by positive law, which permits every arbitrary rule to be classified as law.

Both of these innovations accelerate the process of equalization so that every time a new aristocracy or elite threatens to emerge, the State quickly allies with those subjugated by the new elite, becoming the ally of workers, minorities, women, etc. Because there are authorities in all spheres of life, the State extends its legislative power to all spheres of society and effectively becomes total.

Carl Schmitt on Juristic Thought: Part 2

A reader requested the second part of my analysis of Schmitt's 1934 paper On the Three Types of Juristic Thought.  Citations were scrapped to save time.

II.A In the Context of Modern Jurisprudence

            Schmitt's essay On the Three Types of Juristic Thought is not a tightly written analytical piece, but rather a loosely arranged group of investigations and arguments.  Schmitt ventures into the territories of legal realism, contemporary Anglo-American Legal Positivism, natural law jurisprudence, sociology, historicism and phenomenology.  Schmitt clearly has grasped the profound theoretical shortcomings that followed the great 19^th-century codifications, which precipitated a turn toward formalism and therefore normativism, and skillfully applies the analytical tools of “realism” in order to reveal the limitations of such approaches to law in our modern context.  Schmitt is equally adept at revealing the basic, unjustified assumptions underlying command or decisionist theories of law.  However, if his proposed typology of juristic thought is to hold, it must be able to explain and engage more contemporary theories of law in terms of concrete-order thinking.  Methodologically, Schmitt's approach seems to be superior to early formulations of legal positivism and legal realism, and would probably be superficially compatible with certain contemporary approaches to jurisprudence.  His essay is, however, a broad, sweeping survey that neglects to justify many epistemological assumptions about the contextual nature of juristic thought, and fails to justify various evaluative judgments about what the law ought to be.

            Schmitt's more analytical claim is that the form and structure of the law presuppose a specific social order, which in turn presupposes ideals about how the law is to be applied, what the law ought to do, and what the objects of law are.  Concrete-order thinking therefore conceives of jurisprudence as a discipline that investigates and affirms the interrelation of sociological phenomena and ideology – moral, political, and economic – with the formal substance and official structure of the law.  This approach is close to the philosophy of H.L.A. Hart, which acknowledges that the criteria governing interpretations of the law are determined by social purposes.  Furthermore, Hart, like Schmit, recognizes the necessity of psychological acceptance of the law to legal “validity,” and the connection between that acceptance and social purpose.  Schmitt would not, however, find Hart's approach sufficient, for Hart ultimately locates the source of law and its legitimacy in a rule of recognition, and thereby commits the same errors Schmitt attributes to normativism.  In contrast, for Schmitt, institutions and concrete-orders are the ground of law: their guiding ideas and internal regulative functions shape the form and structure of the posited law through time, so that no single rule can always determine whether or not something is law.  This notion, that novel situations cannot always be accounted for in a basic norm, is an insight that Ronald Dworkin relies on in arguing that legal officials must appeal to the guiding ideas of “principle” and “policy.”  The logic seems to be the same for Schmitt: in indeterminate cases, legal officials ask what course ought to be taken given the guiding ideas of the state and the other institutions presupposed by the law.  In terms of Schmitt's project, Hart's Legal Positivism would therefore be understood as an advanced but fault-ridden approach to law, while Dworkin's “natural law” approach might be considered a concrete-order jurisprudence of liberal-individualistic institutions.

            However, in concrete-order thinking, the intellectual call for a specific form of natural law jurisprudence is tantamount to a call to civil war unless it occurs within a social context where the juridical status of the institutions won't be disrupted by the ethical content of the new theory.  Thus, for example, the natural law jurisprudence of John Finnis would be a call to social revolution unless it were espoused within the context of some sort of quasi-Latin communal organization comprised of interlocking networks of friends working together toward a single, common good.  In a similar manner, a Dworkinian natural law would only be legitimate in the context of a liberal-individualist society, and not, for instance, in a quasi-Hegelian, Prussian Gemeinschaft.  These conclusions partially follow from Schmitt's premise that an institution constrains the scope of the law.  For instance, in the classical-Christian tradition, the family cannot be dissolved formally through the law in the same way that the individual and its rights cannot be dissolved now, because the family, like the individual in modern liberal-democratic states, was an irreducible object of law with its own internal regulations.  Although by some standard the family might be considered morally base or economically inefficient, the law as a sociological phenomenon presupposing the legitimacy of the family order could not destroy the family without eradicating its own concrete moorings.  If the law were turned into the instrument of an interest at odds with the concrete-orders of the social environment, then it is no longer the law of that milieu, but rather the law of some incommensurable institution, or a mere political tool used for imposing a radically new order.

            This consequence of concrete-order thinking constitutes an explicit injunction against legal activism, but it does not rule out social change.  Schmitt, writing as a Catholic in the early 1930s, actually speaks favorably of Aristotelian-Thomist orders, but he clearly doesn't see German law as a mere vehicle for the reintroduction of classical virtue ethics.  Schmitt recognizes that there are peculiarly German-Protestant institutions, and other Stände presupposed by German law.  To demonstrate, Schmitt cites Title I, paragraph 2 of the Prussian Law Code of 1794 as the most recent code where specifically German institutions were affirmed as legitimate institutions irreducible to mere collections of norms: “Civil society consists of several smaller associations and Stände bound together through nature or law or both”.  If one desired to introduce Aristotelian-Thomist natural law into Germany, one would have to do so without deploying the law against non-Catholic German institutions like the Prussian military.

            In a certain sense, the recognition of the relationship between political assumptions and the function of the law comes very close to legal- and political-realism insights.  Schmitt certainly agrees with the realists that the applicability of formal norms to concrete situations and cases is not a matter of pure deduction, that the study of legal behavior is important for jurisprudence, and that judicial decision involves discretion on the part of the judge.  However, Schmitt does not believe that demonstrating incongruities between legal behavior and the purported function of law constitutes the invalidation of traditional approaches to jurisprudence.  Rather, Schmitt would say that such incongruities – where, for instance, a judge invokes precedent for the sake of some personal end – highlight the collapse of the institutional order that the law presupposed.  An Oliver Wendell Holmes-type can make observations about the incompatibility between sociological reality and the putative function of the law, but all this accomplishes from a concrete-order perspective is the recognition that laws and legal rules ultimately presuppose the existence of the social forces that existed when the laws were originally posited.  Schmitt would agree with Holmes that the old common laws of a nascent agrarian democracy or of Henry IV's England certainly do not seem compatible with the social reality of 19^th century North America, but he would argue that relatively objective legal decisions were possible in those original institutional contexts.  In this context “Objective” would be understood by Schmitt to mean something like “compatible with guiding ideas of the institutions in existence.”  (There are, however, collections of laws that are compatible with a variety of incommensurable institutional orders.  The American constitution is an excellent example, for the bourgeois liberties constituted therein presupposed at their inception the legitimacy of a white, landed aristocracy predicated on the institution of slavery.  These liberties now hold for a cosmopolitan, multicultural and pluralistic democracy.)

            The principle difference between Schmitt and realists is that Schmitt wants jurists to approach jurisprudence with a concept of the law in mind that includes a normative belief in the legitimacy of the juridical content inherent in the institutions currently in existence.  This seems to be a result of Schmitt's historicist conception of jurisprudence, which states that there is no such thing as a “free-floating” jurisprudence.  Law, norms, and decisions are not universal, ahistorical entities, but rather concepts and events bound to a “historical, concrete, total order.”  This means, of course, that Schmitt's own style of concrete-order thinking is bound to the “concrete present situation and the reality of...current legal life.”

            The Law and Economics movement is another useful example.  Schmitt's concrete-order thinking would see the Law and Economics movement as a jurisprudence of corporate-business associations, and therefore as a polemical response to the state welfare institution.  Thus, eschewing the distinction between tax and fine, in terms of concrete-order thinking, would not be some profound new insight into “the law,” but rather an affirmation of the centrality of the guiding idea of the corporation, which is profit.  In such a case, the forms and structure of the law become instruments for the maximization of wealth because rival institutions with rival conceptions of justice have been marginalized or destroyed.  Law is thereby translated into an expression of the self-interest of individuals and businesses, not because that is what law is in a metaphysical sense, but rather because, from a certain sociological perspective, that is how humans behave in the socio-institutional sphere roughly delineated by the - at the time - common definition of “law.”  It would be hard for Schmitt to see a legal conflict between the Reichstag and the Prussian military in terms of the pure self-interest of the institutional actors, for they were traditionally unified under a single law, and would therefore be “naturally” bound to respect the internal regulations of each other.

II.B Normative Element

 Schmitt seems to believe that because his jurisprudence is contextualized, he is thereby justified in evaluating negatively any normativist or positivist innovation in German law.  Schmitt regards these impositions on German law as liberal-individualistic attacks on traditional legal institutions, but fails to show why those impositions are any less justified or legitimate than the institutions they dissolve.  This lacuna refers back to Schmitt's conclusions regarding natural law jurisprudence, which implicitly value “normalcy” and “the stable situation” as the only proper criteria for legitimacy.  His unexpressed conclusion seems to be that any institutions that come to be viewed as normal and customary in a given social milieu are legitimate legal institutions.  At this point in his argument, Schmitt reveals his orthodox Hegelianism by quoting the Rechtsphilosophie: “Recht must grow into custom, into habit, the state must have a rational organization...”.  Thus, Schmitt's essay expresses a profound dissatisfaction with the relativisation of institutions vis-a-vis the individual's interest and right, and the liberal opposition of contractual association to institution.  For example, Schmitt mirrors Hegel's conservative indignation by lamenting Kant's normativist reduction of marriage to “a contract of individuals mutually interested in their sexuality.”  However, Schmitt does not seem capable of mustering a justification for why the family should not have been dissolved into contract, except for the fact that it had been previously regarded as a natural, irreducible institution.  In fact, Schmitt's own historicism seems to bind him to the outcomes of the French Revolution, which reduced many institutions – and therefore the object of law – to a civil-society comprised of individual human atoms engaging in contractual relationships.

            Schmitt appears to be aware of this conflict, but in attempting to construct a solution, opens an even wider ethical chasm.  According to Schmitt, institutions and concrete-order thinking never ceased in Germany, despite the fact that the Weimar Republic had overthrown most of the last institutional elements of the ancien régime.  To some extent Schmitt is correct, for certain traditional elements of the military and certain feudal land rights remained legitimate.  However, Schmitt takes this to be a justification for the assent of National Socialist power in Germany, and proceeds to evaluate the general clauses of National Socialist law – appeals to “common decency” and “good faith” – as a return to concrete-order thinking.  To Schmitt's credit, he doesn't believe such clauses are sufficient and justified in themselves, but rather believes that if they are to become more than mere political tools, they require underlying institutions comprised of individuals who assent to such principles.  Schmitt also credits the work of authorities like Johannes Popitz with using general clauses to protect the “new German tax jurisprudence from sinking into a mere science of tax evasion.”  This just means that the presuppositions of a German community trump contractual concepts, so that the units of economic interest become institutional structures, families, and other Stände unified under the guiding law of the state.

            Schmitt's various evaluations of non-communitarian forms of jurisprudence, where they are reduced to mere illegitimate “polemics” against tradition, appear to have very little argumentative value.  However, Schmitt's contextualized-institutionalist understanding of law does, in a certain way, produce some interesting political and ethical results.  For instance, according to Schmitt's paper, installing some form of liberalism in an Islamic country would require more than a purely formal restructuring of the legal and political apparatus. A substantial demographic shift that pushes liberal axioms, such as Kaldor-Hicks efficiency (wealth maximization norms), into the position of cultural primacy is also required; but enforcing such a shift is by definition anti-liberal, or at any rate not necessarily conducive to the self-interest of Islamic institutions and individuals.  Moreover, Schmitt's demand for the legitimacy of institutions not formed by the contractual interrelationship of individuals raises some interesting questions about the presuppositions of contemporary law, which regards the individual and its rights as more legitimate than classical institutions like the family.  We can therefore conclude that although Schmitt's essay relies on a wide range of unjustified epistemological and ethical assumptions, his overall approach, which relies on a phenomenological perspective and sociological analysis, remains a relevant alternative to the investigation and practice of law.

Eliade meets Schmitt

Gorneanu [a member of the Legation] takes me today to Carl Schmitt, who has wanted for a long time to know the true story about Nae Ionescu’s philosophy. A house in Dahlem, with very un-Germanic furniture, several modern paintings, and a library rich in old books. Carl Schmitt is a small man with a face not very impressive but luminous, animated...

- Continued at Ahnenkult

See also: Sacred Orientations: Schmitt and Eliade

Strange reading

Presented in relatively terse prose, Human History: Viewed As Sovereign Individuals Versus Manipulated Masses tells a story of the clash between (Oriental and Western) collectivist cultures and the (Aryan) culture of sovereign individuals. The authors' tendency to gloss over the more complex philosophical issues undergirding their principles contributes to the earnest tone of the text. The book is both a history and a call to action - for a return to the society of sovereign individuals.

An opaque "nature" philosophy, punctuated by the evolutionary ethic described in the beginning, permeates the book. The authors divine a teleological purpose to human existence from observations of the evolutionary process: the first cell divided and each new cell existed individually, then cells grouped together and performed specialized functions until they reached a point where they could no longer function individually apart from the whole. Next, groups of specialized cells developed sex as a means of reproduction rather than mere self-division. Sexual selection implied perception and selection of other individuals to be "enjoyed" or admired for their own sake, for if other individuals were valued only as something to be incorporated into a larger whole, the purpose and function of sexual selection would be defeated. The authors regard this individuation effected by sex as the ethical apex of evolution and consequently regard social species like bees, ants, and termites as "regressive," because the species have functionally regressed to a cellular state.

Returning to the course of human evolution with this theory in mind, the authors show how the primordial sovereign individualism of the orient and the west was defeated by regressive collectivism. The primary vehicles of regression were familial authority in the east and religion in the west. In particular, the authors single out manipulation of individuals by the use of words, which allowed the collectivist founders to eschew the rule of physiology and evolution and acquire power. The proto-Indo-European (Aryan) invaders represent a sovereign-individualist reaction against this regressive collectivism, and provide us with a link, through the culture of ancient Greece, to the original sovereign individualist culture.

Because everyone has heard some variation of this story, from Nietzsche, to whom the authors pay homage, or from evopsych/hbd literature, I won't elaborate further on this part of the narrative.

The book stresses that Aryan culture approved of one-to-one combat in the resolution of conflicts between individuals. One-to-one combat ensured that any mass manipulator, "prophet," community organizer, or other nascent demagogue, had to be prepared for combat with anyone who resisted his collectivist designs. Not only did the culture of one-to-one combat render the society of sovereign individuals less susceptible to evolutionary regression, but it also affirmed evolution (and therefore individuality) by breeding out cowardice, weakness, and manipulators.

The authors also claim that northern Europeans refused to suppress female sexuality in the manner of the collectivist societies and desert religions. Because female selection is tethered to status, and because Aryan culture lacked the formalized positions of hierarchical status characteristic of collectivist societies, women selected mates according to innate strength and intelligence rather than formally-defined stations.

The book doesn't describe in-depth the collapse of the various individualist societies, but it does provide a few interesting examples; for instance, when the clergy managed to ingratiate itself to northern European pagans, one of their first goals was to establish a class of individuals, including the clergy, that would be exempt from challenges of one-to-one combat.

The authors go on to focus on the American Revolution, banking and fiat currency. These sections of the book are less thought-provoking, but just as controversial as the rest of the book.