Order and Orientation

NATO: friends and enemies

2011-09-12T14:49:00.000-07:00

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

2011-08-04T14:52:00.000-07:00

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

2011-07-31T17:10:00.000-07:00

"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. Since 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

2011-07-29T15:50:00.000-07:00

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

2011-06-09T18:20:00.000-07:00

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

2011-06-04T15:36:00.000-07:00

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.

Since 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. Since female selection is tethered to status, and since 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.

Land and Sea and History

2011-03-15T07:51:00.000-07:00

Greg Johnson over at counter-currents has revised and transcribed Simona Draghici's translation of Schmitt's Land und Meer. Presented as a story told to his daughter Anima, Schmitt uses the languages of ancient elemental philosophy and history to describe how our ever-changing phenomenological experiences of space structure our understanding of the state. While Land und Meer does not present a particular methodological approach to history, Draghici suggests an interpretation of Schmitt's historical philosophy in the introduction (not transcribed at counter-currents):

"[Schmitt] rejects any notion of predetermination regarding the course of history. His view of history is anthropocentric, and unpredictable with regard to evolution, based as it is on the premise of a direct relation of knowledge, outlook and deliberate action with the medium in which man moves. Instead of continuity, he prefers to observe the fractionalizing effect of chance in the development of any community or social entity. As Schmitt sees it, human existence in the confines of space and time has been experiencing spells of precipitated activity, outbreaks of energy which have taken chance to a successful outcome, whenever correctly identifying the favourable venues, or has been stalled, incapable of sustained and renewed effort. His historical man acts by recognizing chances and taking them in his freedom, in keeping with his knowledge and outlook, which in turn are affected by the experience of his own action upon his environment. It was only later, in 1958, that Carl Schmitt acknowledged his debt to Toynbee in this respect, in his essay 'Gespräch über den neuen Raum', included in a festschrift in honour of the Spanish jurist, Camilo Carcia Trelles, and published at Santiago de Compostella. It was Toynbee who in 1933 had come out with the concepts of stimulus, challenge and response, withdrawal and return, among others, in the first volume of his multi-volume work, A Study of History. Carl Schmitt adopted and adapted them as adequate descriptive tools to convey the interaction between man and space in that fitful manner in which it appears to the uninvolved onlooker. Hence, the evolution of any community may be appraised in terms of the success by which a series of challenges are correctly recognized for what they are and adequately met, for the corresponding duration of time."

This account of Schmitt's historical thought appears to be inconsistent with the Straussian approach, developed forcefully by Heinrich Meier in his excellent book on Schmitt and Strauss, which portrays Schmitt as an apocalyptic Christian historicist. By Draghici's account, Schmitt's historical man moves in an open-ended historical medium with his actions only partially restricted by a "spatial" analog to Machiavelli's Fortuna. Perhaps it is not insignificant that Machiavelli described Fortuna in terms of the elemental clash between "destructive rivers" and fixed terrestrial beings.

Recording of an interview with Carl Schmitt on partisan warfare (in German)

2011-02-22T11:46:00.000-08:00

Schmitt interviewed by Maoist Joachim Schickel [link]

Bertrand de Jouvenel on political theology

2011-01-14T15:11:00.000-08:00

In On Power Bertrand de Jouvenel uses an analogy to theological speculation to illustrate a central element of political philosophy.

When the intelligence, unsupported by either study or revelation, applies itself to its essential objective, the knowledge of God, it forms by a natural process two antithetical conceptions. One is that of a miraculous Providence, which is reached and set in motion by prayers for particular objects and then intervenes to disturb for the benefit of its invoker the natural course of things. And the other is that of a supreme Wisdom, which has subjected everything to laws of a majestic regularity and then leaves them to operate unchecked.

Theology has, as is known, admirably reconciled the two conceptions in the account of the Divine Nature which it has drawn up. It is enough for our present purpose to have borrowed form it the antithesis in its crudest form that we may apply it to the government of human affairs.

This government may take one of two forms, the legalitarian or the providential. It may buttress with sanctions fixed and relatively unchangeable laws, and see to their exact execution, while treating with respect whatever consequences they have; or else it may take occasional interventions and bring to each situation as it arises its own remedy, with the result that there are no longer fixed laws but rather an uninterrupted series of "miracles" or arbitrary acts.

Political philosophy in every age has thrown into contrast the two conceptions, which twenty-five centuries ago were called by the Chinese "government by the laws" and "government by men" respectively.

The first, clearly, is an ideal which does not admit of more than a partial attainment...
- page 399

Carl Schmitt on the ethics of legal process

2010-12-18T10:37:00.000-08:00

Throughout Schmitt's work one can find references to an internal ethic of modern legality that bears a striking resemblance to the ethic of internal process articulated by Lon Fuller. For instance, in Schmitt's 1943 speech on "The Plight of European Jurisprudence" we find:

[Jurists] fulfill a task which no other human can fulfill. We cannot choose the changing rulers and regimes according to our own tastes, but in the changing situations we preserve the basis of a rational human existence that cannot do without legal principles such as: a recognition of the individual based on mutual respect even in a conflict situation; a sense for the logic and consistency of concepts and institutions; a sense for reciprocity and the minimum of an orderly procedure, due process, without which there can be no law. That we defend this indestructible core of all law against all destructive enactments means that we maintain a dignity which today in Europe is more critical than at any other time and in any other part of the world.

This ethic only emerges in the wake of the credal civil wars in Europe and the subsequent Peace of Westphalia:

European jurisprudence is the first-born child of the modern European spirit, of the "occidental rationalism" of the modern age. The modern natural sciences followed later.

The ongoing relevance of Carl Schmitt to American social thought

2010-11-24T07:36:00.000-08:00

Kenneth Anderson wrote recently at The Volokh Conspiracy:

The truth is, as an intellectual matter, I think Schmitt has long since run out of steam in terms of what he offers to American political and social theory. This is possibly because I was intimately involved at Telos in the Schmitt revival from the beginning, felt like I absorbed what seemed important to me, and moved on by the 90s. For example, the notion of emergency in Schmitt is both deeper but more alien to American political thought than, I suspect, many American theorists think — they really mean something that just is regular old consequentialism pushed hard, whereas for Schmitt, such notions are part of a far deeper and more committed system. And although I once wrote a paper not long after 9/11 with a section carrying the very Schmittian title, “Criminals and Enemies,” what I meant by that had little to do with Schmitt and I was amazed at how quickly it was cast in Schmittian terms. Far, far more important than Schmitt in contemporary American social theory — if there were such a thing outside the cul-de-sac of identity politics — is the revival of New Class theory in the American contempory context, and a theory of elites.

Kenneth is correct insofar as his comment addresses the state of Schmitt scholarship on the left and among "critical theorists" who have generally only focused on Schmitt's terse definitions of the political and sovereignty. To the extent that American scholars continue to focus on the two or three pamphlets and lectures that provide brief sketches of concepts that Schmitt developed elsewhere at length, I believe it is accurate to conclude that Schmittian thought has "run out of steam" in America.

However, I believe that there is still a great deal of interesting scholarship left to be done that will concern Schmitt's much more nuanced and historical understanding of the relationship between the state and law (which has been obscured by Kelsen-like conflations of the two). One example of this type of scholarship is the work of Professor Adrian Vermeule at Harvard; Vermeule has published fascinating articles on the more analytical content of Schmitt's work (see for example "Our Schmittian Administrative Law").

A Translation of Schmitt's book on dictatorship

2010-11-15T09:57:00.000-08:00

Apparently there is a forthcoming English translation of Carl Schmitt's famous Die Diktatur. The release date was set for August 16, 2010, but the book has yet to become available (at least to my knowledge) online. I also located a listing for the book in the Sociology Catalogue UK 2010, which identifies Michael Hoelzel as the translator and gives a November 2010 release date.

If anyone knows more about the translator or when the book is going to be released, please let me know.

Gerard Magliocca on the possibility of constitutional theory

2010-11-12T13:31:00.000-08:00

Greg Magliocca has made a bold argument about constitutional theory over at Balkinization.

In suggesting that constitutional theory is “overrated,” Magliocca identifies an important problem for the competing wings of American Constitutional theory. He argues that constitutional theory requires originalists on the one hand to devise tortured justifications for transparently revolutionary decisions like Brown, and living constitutionalists on the other to create similar justifications for decisions that were considered correct at the time but are now considered wrong, like Plessy. A particularly glaring example of Originalist theoretical discord can be found in John Yoo’s otherwise excellent Crisis and Command.

Magliocca suggests that this problem arises from the fact that no normative theory can accurately reconcile all of the inconsistencies in the law. I agree. The problem originates from an adherence to the modern liberal conception of the law as something that is 1) universal and prima facie comprehensible, and 2) something that guarantees a correct legal conclusion in all possible situations. Adherence to these principles comes in various degrees of severity, with some evincing a theory of constitutional sola scriptura and others, who are less radical, cautiously countenancing the existence of undecidable constitutional issues. In either case the central problem arises from the fact that #1 essentially eliminates the possibility of any constitutional theory of the type criticized by Magliocca.

From the perspective of the Classical Liberal concept of law, the law is not, for example, the decisions of the absolute sovereign, but rather only the rules that are written down on paper. To introduce an extra-legal interpretive calculus – a Constitutional Theory – alongside the unexpressed theory that written rules are self-sufficient would be to unnecessarily multiply what is already a functional entity. Furthermore, to require the use of a theory in Constitutional exegesis would be to concede that the inert law-on-paper is not sufficient to further the goals of justice, and that therefore the rule of law (in the American sense of the term) requires interpretation and application by individuals possessing the correct conceptual framework.

And yet this is precisely what law, according to the modern concept, is not supposed to be, i.e., something that is not universally comprehensible. This contradiction lies at the center of the discord discussed by Magliocca. Certain theorists retain the liberal desire for a universally comprehensible law that, absent the meddling of devious subversives, criminals or aspiring dictators, is supposed to produce one apodictic legal conclusion after another for the ordinary citizen. Simultaneously, these theorists posit strictly defined canons of interpretation that require penetrating scholarship and belief in specific ethical norms for their correct application. In order to preserve the universality, however, they have to hammer the meandering, inconsistent historical path of the law into the partisan theoretical form they have constructed. Out of this procedure they produce the unbelievable results mentioned by Magliocca.

Another problem (arising out of #2 above) in American Constitutional Theory stems partially from the astounding naiveté evinced by proponents of the more popular and generalized theories like Originalism, “Constitutionalism,” and Living Constitutionalism. Proponents of these theories are often profoundly unaware of the deep epistemological problems that lurk beneath the text. Indeed, the philosophy of law exhibits in microcosm many of the perplexing issues that plague the philosophy of language and ethics. In most cases the philosopher or legal theorist works with concepts and therefore with what Wittgenstein identified as those vague or inapplicable “penumbral” (to use Hart’s terminology) instances where the applicability of the concept is uncertain. This problem looms large in the philosophy of law because a significant amount of cases – especially those that are controversial – run up against concrete situations that seem to be partially described in the text of the law, but not in a way that renders the legal status of the situation sufficiently clear. There are numerous hypothetical examples, such as Hart’s “no vehicles in the park” statute, as well as real cases, such as those dealing with the relationship between pornography and First Amendment or the ambiguity of the Commerce Clause.

The inability or unwillingness to consider skeptical conclusions about the Constitution, for example the conclusion that virtually any economic proposition may be deduced from the Commerce Clause, generates useless hand waving and perplexing scholasticism.

Sandy Levinson on "Weimar America"

2010-10-01T12:55:00.000-07:00

Weimar America

Sandy Levinson

In today's New York Times, Paul Krugman writes of the ever-increasing slide toward what he views as a Latin America "banana republic." There is much to his analysis, but let me suggest that we are better advised to look at Weimar Germany during the 1920s (rather than, say, contemporary Mexico or Argentina) to understand our present political situation.

Begin with the fact that more and more people, regardless of political party identification, have altogether justified contempt for Congress as an institution. When I last checked, the Gallup poll showed that a grand total of 19% of the America public "approved" of Congress, while a full 75% disapproved. Even if one believes, plausibly enough, that Democrats are more approving than Republicans, it's still impossible that many Democrats aren't in the "strongly disapproving" camp. I began touting Carl Schmitt's incisive (and altogether depressing) analysis of the Wemar Parliament several years ago; if anything, he's even more on the mark now than then...

The rest at: Balkinization

Dworkin on political theology?

2010-08-07T13:51:00.000-07:00

In "The Model of Rules" Dworkin raises and then discards the following possibility:

"Perhaps the distinction [between the commands of the law and the commands of a gunman] we make is illusory - perhaps our feelings of some special authority attaching to the law is based on religious hangover or another sort of mass self-deception." - 19

and he explains earlier about a certain form of legal realism (what he calls nominalism):

"[The myths that make up the law] should be thought of as Platonic myths and retained to seduce the masses into order." - 16

Kelsen's Pure Theory of Law

2010-07-31T09:36:00.000-07:00

"Law and state are usually held to be two distinct entities. But if it be recognized that the state is by its very nature an ordering of human behavior, that the essential characteristic of this order, coercion, is at the same time the essential element of the law, this traditional dualism can no longer be maintained. By subsuming the concept of the state under the concept of a coercive order which can only be the legal order, by giving up a concept of the state distinct in principle from the concept of law, the pure theory of law realizes a tendency inherent int he doctrine of Austin." - Hans Kelsen, "The Pure Theory of Law and Analytical Jurisprudence," 55 Harvard Law Review 44 (1941)

Hans Kelsen's Jurisprudence begins with a transcendental argument about the validity of legal rules that focuses on an analysis of the logical consistency of norms. This approach has profound implications for traditional perspectives on the state, sovereignty, and public law.

As a general overview, Kelsen's theory can be understood to proceed from the accepted fact that people tend to regard legal rules like "no vehicles in the park" as valid. Kelsen's argument subsequently reveals that the validity of this rule depends on a more general norm granting, for example, the legislature the right to create such rules. The validity of this right owes its validity in turn to still more general norms, and so on. According to Kelsen, we eventually reach a point at which we have either identified the first norm - one ought to obey the constitution - or are unable to find further justification. Hence, we must conclude that in accepting the validity of a legal norm, we presuppose a basic or foundational norm. Since no fact can validate a norm - no "is" can justify an "ought" - no historical event or fact can be regarded as relevant to jurisprudence. Jurisprudence may only speak of norms and their logical consistency.

The logical validity of norms is therefore the basis of the validity assumed by the citizen who believes that "no vehicles in the park" is a valid legal rule. As a consequence,this validity can be maintained only if there exist no other norms that contradict any of the norms in the chain of deduction validating the rule.

The question of the state emerges at this point in the argument. Since law is a system based on coercion that orders human behavior, and since the state is (by Kelsen's definition) identical to this type of system, the traditional separation of state and law cannot exist. For if the separation is maintained, then there are two general sources of normative validity that can potentially contradict each other (one ought to obey the state or one ought to obey the constitution, for example). Since legal validity of the sort described by Kelsen in his argument clearly exists, no contradictions between norms can exist, and hence the state must be collapsed into pure law. The state is nothing separate from the law, and there is nothing outside the set of consistent norms. The norms of law therefore regulate everything that the concept of state traditionally applies to.

If the law contains rules regulating the creation of laws that are potentially self-referential, i.e., permits the creation of laws that alter or regulate the constitutional laws that govern the types of laws that can legitimately be passed, then Kelsen's theory has political consequences. As a consequence of the reduction of state to law, the form of the state may be transformed as easily as a statute. Most modern systems of public law permit the unconditional modification of every rule, including constitutional laws. For instance, there are no rules in the United States that are immune to modification or elimination through constitutional legal procedure. A cursory glance at the history of proposed constitutional amendments in the United States reveals the political implications of such a system.

Political implications

It is a basic truth that the continuity of any legal system ultimately depends on the legal behavior of the individuals responsible for the functioning of the legal institution. A legal system dominated by a jurisprudence that eschews the word of the law in favor of personal interest will quickly alter the political and legal landscape. In a similar manner, a jurisprudence that only conforms to a very narrow, Kelsian standard of legal validity will produce a particular political state of affairs. From a Kelsian perspective, the United States would be nothing more than the sum of consistent norms sanctioned by the Constitution, implying that a piece of legislation, amendment, decision or administrative act ought to be regarded as valid if, and only if, the normative component of the act was logically consistent with the other set of norms that made up the state or legal system. In practice this means that nothing could formally preclude the United States from becoming a Soviet Republic, absolute monarchy, anarcho-capitalist or other social order through Constitutionally-consistent legal activity. This would strike many Americans as wrong, and yet a Kelsian jurisprudence would instruct public officials to ignore this instinct in favor of an extremely narrow focus that regarded logical consistency as both a necessary and sufficient condition for legality. Kelsen's pure theory of law is therefore revealed as a stipulative concept that has unexpressed ethical and political implications. The purity of Kelsen's system turns out to be, in the end, the source of an impure mixture of politics, ethics and law.

Guillaume Faye and Robert Steuckers on Carl Schmitt

2010-07-27T20:09:00.000-07:00

Interesting essay from TOQ. Based on the anecdote revealed in the paragraph below, Schmitt was apparently much closer to Nietzschean vitalism than many of his American commentators normally concede.

We met Carl Schmitt in the village of Plettenberg, the place of his birth and retirement. For four remarkable hours we conversed with the man who remains unquestionably the greatest political and legal thinker of our time. “We have been put out to pasture,” said Schmitt. “We are like domestic animals who enjoy the benefits of the closed field we are allotted. Space is conquered. The borders are fixed. There is nothing more to discover. It is the reign of the status quo . . .”

continued at: http://www.toqonline.com/2010/04/the-lesson-of-carl-schmitt-part-1/

A contradiction in Schmitt's theoretical approach to law?

2010-06-10T18:18:00.000-07:00

Much of Schmitt's early Weimar-era works focus on the socially deleterious effects produced by the application of the theory of legal positivism to legal practice. This problem touches on a central question of legal theory: to what extent do theories of law affect the practice of law? From a practical standpoint, I believe Lon Fuller answers the question adequately when he asserts that, "in human affairs what men mistakenly accept as real tends, by the very act of their acceptance, to become real." 1

But for Schmitt the issue does not end with Fuller's assertion. Schmitt's intellectual foundation is partially comprised of various forms of German lebensphilosophie, which conclude in different ways that our theories about the world are formed by pre-conceptual human activities and experiences in concrete life. Informed by this perspective, Schmitt often speaks of concrete political and social situations generating theories of law that project rationalizations onto institutions formed out of pre-conceptual concrete life.

Thus, for example, legal positivism is a theoretical derivation from the institutions and political stability that emerged in 19th-century Europe. Legal positivism must therefore be something appropriate for the historical "concrete order" that it was generated for. How does this square with Schmitt's argument that the application of legal positivism is socially dangerous?

Schmitt argues elsewhere that the problem of legal positivism emerges when the institutional order that generated the theory falls away, leaving only the theory but not the institutions. When jurists in the new epoch proceed in accordance with a legal positivist understanding of the law, they make grievous errors which have immoral consequences because the current social order is not fit for legal positivism. Schmitt therefore also believes that theory can affect and modify the concrete life of human institutions. But how could this be if the concrete existence of humans generates appropriate theories to explain and justify the social shape that it forms?

1. Lon L. Fuller, "Positivism and Fidelity to Law -- A Reply to Professor Hart," 71 Harvard Law Review 630 (1958)

Protestant Theology and the separation of Church and state

2010-05-04T16:50:00.000-07:00

Protestantism is sometimes spoken of as a modernist force in the political realm because of its insistence on the separation of Church and state. But upon closer inspection this vision of Luther’s movement begins to blur. This is a consequence of the peculiar nature of those "un-political" movements that emerge in times of political conflict and turmoil. These movements function similarly to non-interventionist foreign policies in an economically globalized world: just as non-intervention invariably amounts to intervention, so un-political movements amount, roughly, to political movements. Indeed, as Martin van Creveld explains in The Rise and Decline of the State, by advocating for a separation of the political and theological domains, the Reformation became, in effect, a theological political power:

“From the beginning one reason why Luther in particular gained so much more support than previous reformers was precisely because of his insistence that the movement he led had no revolutionary overtones; he believed that religion should not be allowed to invade the realm of secular power. This position led him to write vicious tracts in opposition to the Peasants’ Revolt of 1525; in 1530 it was formalized when his collaborator, Melanchton, drew up the Confession of Augsburg and quoted Christ’s words to the effect that His Kingdom was not of his world. Other leading reformers, notably Zwingli, Calvin, Bucer, and Beza, dedicated some or all of their works to the secular rulers of the day in the hope of gaining assistance in spreading their views.”

A passage from Political Theology II in which Schmitt re-iterates an argument from the first Political Theology is useful here:

How should a theology, which explicitly separates itself from politics, be able to put an end, theologically, either political authority or a political claim? If the theological and the political are two substantially separate spheres - toto caelo [completely] different - then a political question can only be dealt with politically. The theologian can reasonably declare the closure of issues of political significance only by establishing himself as a political voice which makes political claims. Whenever he gives a theological answer to a political question, either he simply ignores the world and the sphere of the political or he attempts to reserve the right to impact directly or indirectly on the sphere of the political. It is therefore either a renunciation of any theological competence in political issues (the theologian remains pure in his pure element), or it is the opening of a conflict of competences, a kind of contestation of authorities.

The political opportunism of the Reformation gives the lie to the sanctimonious modernism of certain Protestant theologians who enthusiastically proclaim their support for the separation of Church and state and assert the “impossibility” of any political theology. Even ostensibly anti-political actions have political consequences. Indeed, by assuaging the fears of earthly princes, the Reformation conquered large sections of Christian territory.

State and Civil Society

2010-04-22T19:27:00.000-07:00

Schmitt's state is separate from society and generates its own ethic of unity that transcends all other societal obligations. The purity of this ethic is retained through the absolute separation of the state from society and its various obligations and incentives.

Under the old aristocratic system, the crown and army were separate institutions from society and the people. Statecraft was therefore not, as liberals contend, a self-coercive mechanism generated by free contract between equal individuals. The state was instead an enclosed institution with its own ethic and regulative functions; it was its own society, and not just a function of society. To this end, the institutions of society - economics, the family, religion etc. - were normally regarded as existing beyond the purview of the state, whose calculations concerned the protection and expansion of its territory, and the promotion of aristocratic virtue, including glory and manliness. Glory, conquest and honor become primary incentives in this milieu. However, Schmitt's concern was the preservation of order and the normal situation, which he regarded as a necessary condition for law and justice.

John Yoo's Historical Jurisprudence

2010-03-19T18:12:00.000-07:00

In his fascinating Crisis and Command, John Yoo sketches a brief outline of his theoretical approach to analyzing the American Constitution and “separation-of-powers questions” in particular. Since separation-of-powers questions are rarely considered by the Supreme Court, “historical practice” is, according to Yoo, more relevant for deciding these questions than SCOTUS decisions. Historical practice refers to precedent established in the legal behavior of presidents in the history of United States. For example:

”Presidents ... have never understood “advice and consent” to require personal consultation with the Senate before negotiating a treaty or choosing a Supreme Court nominee, and this because of a practice that began in George Washington's first year in office.” - xviii

Yoo elaborates further:

”Practice also represents the considered views of leaders of different branches over American history on separation-of-power questions. It is a record of the way in which government actors have adapted broad constitutional principles to discrete questions over time. The cumulative effect of their decisions may reveal sturdy truths about the way our government should best work within the system established by the Constitution.” -ibid

So the strict constructivist or normativist understanding of the text is thrown out in favor of an appeal to historical practice. Presidents adopt the customs established by their predecessors regardless of the consequences of any formal reading of the text of the constitution. Yoo therefore posits an extra-legal (in the formal sense of “legal”) source of normative power that has grown up through the cracks in the formal-normative edifice of our Constitution. Historical Practice is customary law, not written law; hence, just as custom was king in monarchies and aristocracies, so custom reigns in the epoch of liberal constitutionalism. Yoo does not, however, seem to regard this as revelatory of any crisis in the modern, liberal understanding of “law.”

Georges Sorel on Political Theology

2010-02-02T18:52:00.000-08:00

Schmitt uses the method of a "sociology of concepts" in Political Theology in order to demonstrate, roughly, the origin of political and legal ideas in analogies to dominant metaphysical accounts of the world. In his Reflections on Violence Sorel presents a handful of explanations that fall under this concept of Political Theology.

“Because astronomers had managed to calculate the tables of the moon, it was believed that the aim of all science was to forecast the future with accuracy; because Le Verrier had been able to indicate the probable position of the planet Neptune – which had never been seen, and which accounted for the disturbances of observable planets – it was believed that science could remedy the defects of society, and indicate what measures should be taken to bring about the disappearance of the unpleasant things in the world.” - 140

Sorel continues on to assert that scientific superstition is primarily a middle class conception of science that is "derived from astronomy" and "supposes that everything can be expressed by some mathematical law." Sorel concludes that "there are no laws of this kind in sociology; but man is always susceptible to analogies."

Edit:

"There is hardly anything, not excepting even war, that people have not tried to bring inside the scope of natural right: they compare war to a process in which one nation reclaims a right which a malevolent neighbour refuses to recognize. Our fathers readily acknowledged that God decided battles in favour of those who had justice on their side; the vanquished were to be treated as an unsuccessful litigant: they must pay the costs of the war and give guarantees to the victor in order that the latter might enjoy their restored rights in peace. At the present time there are plenty of people who propose that international conflicts should be submitted to arbitration; this would only be a secularisation of the ancient mythology.” - 39

cf. Thomas Kuhn on Political Theology

Ronald Dworkin interview on the BBC

2010-01-29T07:37:00.000-08:00

Link

Interesting short interview with Dworkin.

According to Dworkin, law consists of abstract principles that require interpretation, which implies that judges need extra-legal moral principles to interpret the law. Fidelity to the law therefore entails interpretation of the law. Although he asserts that judges need moral principles in order to follow the law, he doesn't comment on the content of those principles.

Contrary to originalist or constitutionalist conclusions, Dworkin believes that abstract constitutional clauses cannot be interpreted without moral convictions. Here Dworkin is very close to Schmitt, particularly with respect to the skepticism the latter evinces in State, Movement, People.

Schmitt regards the emergence of legal indeterminacy as a historical and sociological phenomenon that does not necessarily occur in all cases.

The so-called general clauses and the vague concepts have invaded all the spheres of legal life, even the criminal law, from all sides, and in countless circumlocutions: 'faith and fidelity', 'good manners', 'important motive', 'unreasonable harshness', 'reasonableness', 'particular plight', 'disproportionate disadvantage', 'prevailing interests', 'prohibition of abuse', 'prohibition of arbitrariness', 'claim for payment of interest' – these are only a few examples of the dissolution of the legalistic normativism.” - State, Movement, People, 49

”Such general clauses” according to Schmitt, “had in the long run become unavoidable and indispensable.” (Ibid)

"In the theory and practice of law, we have reached the point where the epistemological question is raised with all practical seriousness: to what extent a word or a concept of the legislator can in a truly calculable way bind the people who apply the law? We have made the experience that every word and every concept soon becomes contentious, uncertain, vague and unsteady whenever in an oscillating situation they are seized by minds and interests differently conditioned...all our administrative law is pervaded by such vague concepts, not norm- but situation-related (such as 'public order and safety' 'endagering', 'hardship', 'proportionality', a.s.o.), and also concepts such as 'due discretion', 'arbitrariness', 'prohibition of arbitrariness' are so incalculable in case of conflict that they themselves may turn into the worst arbitrariness.” - Ibid

For Schmitt, the dissolution of the law into indeterminate clauses is the consequence of the emergence of political pluralism within the classical liberal constitutional state. In such a situation, the various political identities function legally, but apply the law in such a way that alters the traditional interpretations of general clauses. The classical liberal state is incapable of dealing with this revision because it is only concerned with the prima facie meaning of the text of law. This situation will, according to Schmitt, eventually give way to the legal revolution.

Dworkin also recognizes partisan manipulation of the law as being part of law in general; he only qualifies this tendency by requiring that individuals apply their partisan views with integrity or consistency so that even when their partisan convictions don't benefit their party, they must still apply those convictions. So, for Dworkin, a legal argument is valid when it involves the consistent application of any moral conviction. Bush v. Gore (2000) is singled out as an invalid decision based on this criteria.

Jurgen Habermas - seminar on Carl Schmitt and Leo Strauss

2009-12-22T09:58:00.000-08:00

I found this course outline over at the Rawls-Habermas blog.

This fall, Jürgen Habermas will be teaching at The Department of Philosophy at Stony Brook University (see my previous post).

Habermas will give a graduate seminar: "From Political Theology to the Political Philosophy of Religion."

Course description: "This seminar will begin with a systematic comparison of two great German figures in first half of the last century, Leo Strauss and Carl Schmitt. Both stand for polar positions, one putting Classical Antiquity against monotheism, the other defending a return to a pre-Hobbesian Catholicism. Then we will engage the work of two important theologians, each representing different version of political theology, from the theological camp: Gustavo Gutierrez and Johann Baptist Metz. These comparisons then will be juxtaposed to recent discussions in the United States about public role of religion, especially as it is taken up in the work of Wolterstorff. The seminar, thus, moves from political theology formulated from without theology, to political theology formulated from within, to then conclude with a political philosophical analysis of religion in the public sphere that is agnostic and abstemious about theological claims."

The bolded section represents an interesting interpretation of Schmitt's political program. More to follow.

The Sunic Journal and Carl Schmitt on Political Romanticism

2009-12-08T19:20:00.000-08:00

“In every romantic, we can find examples of anarchistic self-confidence as well as an excessive need for sociability. He is just as easily moved by altruistic feelings, by pity and sympathy, as by presumptuous snobbery.” Carl Schmitt, Political Romanticism, 161

Introduction
The third part of Tomislav Sunic's show on Carl Schmitt focuses on a concept that Schmitt developed early in his academic career: Political Romanticism. Sunic is correct that the concept is important to Schmitt's thought and that it is also relevant and useful for us in the 21st century, but his explanation of the concept is fundamentally flawed. In the following entry I will review Sunic's description, provide a corrected analysis of Schmitt's concept of political romanticism, and then supply an argument for why the concept is still relevant.

Sunic's Discussion
Sunic introduces political romanticism toward the end of his show by establishing a set of equivalences between Schmitt's concept of political romanticism and secular myths, political myths, and finally, Schmitt's own concept of political theology, which Sunic regards as a synonym for political romanticism. He then proceeds to identify specific examples of these phenomena, and references Marxists, feminists, anti-arabism, liberal professors, and utopianism. All of this is fundamentally incorrect, but Sunic's most glaring error emerges with his identification of “true believers” in political myths with political romanticism.

Political Romanticism
Part 1
From a theoretical perspective, Sunic's misrepresentation of the concept of political romanticism stems from a neglect of the philosophical conditions necessary for, and the psychological properties of, political romanticism. For Schmitt, the philosophical component of political romanticism is a logical consequence of the elimination of traditional Christian metaphysics, which, mediated through Malenbranche's pantheistic occasionalism and the 18th century's liberal individualism, shifts metaphysical authority onto the individual subject. The metaphysics of political romanticism is therefore a species of subjective occasionalism, meaning that everything outside of the subject is regarded as an occasion for the individual will. This implies that political romanticism has no specific ontology in the sense that it may be defined as Sunic does by reference to specific objects and ideologies. Indeed, Schmitt argues consistently that objects and political movements are not intrinsically romantic; for example, the middle ages, Marxism, and utopianism are not intrinsically romantic according to Schmitt's definition.

The psychological component of political romanticism is the aesthetic attitude that the romantic subject takes toward life, transforming everything in the world into an occasion for aesthetic production. The practical consequences of this attitude are that politics, most forms of ethics, law, and science are transformed into occasions for the aesthetic production and contemplation of the individual.

“In the romantic, everything – society and history, the cosmos and humanity – serves only the productivity of the romantic ego” PR, 75

External events such as revolutions and wars only take on significance for the political romantic to the extent that they provide an occasion for a “great experience.” Schmitt often refers to the romantic's tendency to take everything as an occasion to start an “endless novel”, tracking the etymology of “romantic”:

“Etymologically, romantic means romanhaft, “fanciful” or “fictitious.” The word is derived from Roman, a “novel,” a “work of fiction,” or a “romance.” PR, 30

The psychological component of Schmitt's concept provides the basis for his political analysis of the movement. Since the primary goal of the romantic is aesthetic play and contemplation, and since their only commitment is to their aesthetically interested ego, the romantic “has no interest in changing the world.” (98) However, this does not prevent the romantic from taking an aesthetic interest in politics, nor does it prevent them from superficially participating in mundane political affairs.

Although Schmitt references several 19th century thinkers in his attack on political romanticism – from Byron to Nietzsche – his primary targets are Adam Mueller and Friedrich Schlegel, whose adolescent ideological oscillations provide material for amusing rhetorical flourishes by Schmitt. Political Romanticism demonstrates that these two men adopted absolutely contradictory political postures in their writing and behavior at various times in their life, advocating both revolution and restoration depending on the situation, and embracing a wide and incoherent range of political ideologies on the right and left. However, despite their revolutionary and reactionary posturing, Schmitt maintains that these two thinkers were essentially bound to the existing political order, which provided the necessary external conditions of stability and sustenance for romantic contemplation. Specifically, Schmitt identifies liberalism as the cause of romanticism:

“Psychologically and historically, romanticism is a product of bourgeois security.” PR, 99

According to Schmitt, the 19th century archetype of the isolated thinker divorced from public life is made possible by the structure of liberal life. Guy Oakes explains in his excellent introduction to the English translation of Political Romanticism:

“The conditions for a perpetual fascination with one's own subjectivity can be satisfied only in the bourgeois social order, which guarantees an absolute dichotomy of public and private spheres.” PR, xxxi

Even when the political romantic “theoretically postulates chaos” (98), he remains intimately tied to the existing order and resolves never to “leave the world of his impressionistic experience and change anything.” (99) Like Johannes Climacus in Kierkegaard's Diary of the Seducer, the political romanticist renders a political ideology into something like a political “Cordelia” in order to develop an aesthetic experience from it. As Johannes transforms Cordelia from a real woman into an object of aesthetic contemplation, so the political romantic transforms a political position into an aesthetic object. However, the political romantic remains incapable of making an either/or decision for a political or religious truth that would have real consequences. Their participation in the political sphere remains superficial.

Part 2

The purpose of this elaborate definition for Schmitt (which I have by no means done justice to) is to establish a defense of the counter-revolution, which is ordinarily denounced as “romantic” and “irrational”, and shift some of the burden of romanticism onto liberalism and the revolutionaries. At several points in the book, Schmitt explains that thinkers like Joseph de Maistre and Louis de Bonald held thoroughly unromantic political perspectives, occupied public political offices, and effected unromantic attitudes toward the political world that privileged truth, justice and political seriousness over aesthetic play:

“Bonald is a theoretician. He is fond of abstract formulas. He undertakes discussions of fundamental principles, and in morality and politics he wants to arrive at the compelling certainty of the laws of mathematics and natural science. In all this, he was a person who stood for his convictions in political reality, and he had an extremely unromantic aversion to fantasies, reveries, and lyric poems. For this reason, he was active during the restoration in France as the leader of the “ultras,” who combated the quasi-liberal and constitutional policy of the government with all political means. He fought for the “natural system of societies” against the “political system of the cabinet.” Regardless of how this standpoint may be judged politically, regardless of whether it is regarded as justified or narrow minded, a man who took his political convictions seriously had to come to this kind of political activity.” PR, 119

Friedrich Schlegel, on the other hand, while superficially supporting Bonald's goals, is nevertheless

“shocked ... by the mere thought that his ideals might be defended in political practice. He has political ideals. But he implores the reader not to believe that the author has the presumption of making even the most trifling changes in existing conditions. So what does he really want? He wants to “follow” the development “as a sympathetic fellow traveler.” He is “concerned only with a purely intellectual discussion and elucidation of the age.” He does not want to be one of the “self-appointed world reformers,” regardless of whether their intentions are good or bad.” - Ibid

The previous quotes illustrate Sunic's second, more grievous error of calling “true believers” political romantics. Nothing could be further from Schmitt's definition, which remains silent on the content of the political conviction being held by the romantic. Indeed, from Schmitt's perspective, even Don Quixote, lost in his personal realm of delusion and desire for the middle ages, is not a political romantic, because Don Quixote is capable of making a decision in terms of right and wrong – good and evil – and taking action (147).

Marxists and feminists may be tilting at windmills, but they have - at the least - made a decision in terms of good and evil, and therefore taken the “leap”, so to speak, that political romantics eschew. The political romantic resists any cause external to the ego, and therefore cannot give themselves over to a secular demiurge like “historical materialism” or “patriarchy.”

Schmitt also regards myth as integral to the understanding of law and politics, so Sunic's assertion that political romanticism concerns stupid and simplistic political myths is incorrect. In The Nomos of the Earth Schmitt actually locates the origin of law in myth, and his body of work demonstrates a profound respect for the role played by myth in politics (see his commentary on Sorel in The Crisis of Parliamentary Democracy and his treatment of myth in Political Theology II).

The Relevance of Political Romanticism

Schmitt's theory of political romanticism is relevant because 1) it helps clarify the consequences of liberal political theology and political institutions, and 2) helps us understand the potentially corrosive role played by the academy.

1) Political romantics, because they are uninterested in political activity or the political consequences of their ideas, are capable of producing and disseminating socially deleterious material. This is a consequence of the liberal-institutional separation of public and private spheres, and ultimately of the nihilistic tendency in liberal thought to not publicly comment on the actual content of private convictions. In other words, since liberal political thought places faith in political discussion of any and every political idea, the political romantic is allowed to flourish while the liberal remains convinced that an endless discussion of perspectives will produce truth and justice. Schmitt points out that political romantics tend to see the state and social institutions as works of art. To a certain extent the same can be said of liberal thinkers. For example, there is a tendency in Anglo jurisprudence to regard a constitution as an endless novel that is to be continuously revised and updated according to rival, subjective narratives about the purpose of the state. This approach to jurisprudence was pioneered by Ronald Dworkin, and remains immensely popular in the Law and Literature movement in academia.

2) In her hilarious “Junk Bonds and Corporate Raiders”, the feminist thinker Camille Paglia diagnoses and criticizes the political romanticism plaguing the academic left. I don't know if she is aware of Schmitt's book, but Paglia's reviews of the “queer” theorists Halperin and Winkler mirror in abstract Schmitt's discussions of Mueller and Schlegel. For example, she reveals how Winkler regards his object of study – ancient Greece – as merely an object for aesthetic play (he exclaims that his study is an “artist's penciled outline”) (164). This approach, according to Paglia, has disastrous consequences for individuals who really want to understand our history and seriously engage the real world politically and ethically. Paglia goes on in her lengthy paper to attack the titans of left-wing postmodernism for being shameless, self-promoting intellectual dwarfs who manipulated their objects of study for the sake of fame and ego. She maintains that while these thinkers were in profound theoretical rebellion against the system, they remained tied to the status quo in the same manner as Schmitt's political romantic, never venturing far from its cozy and reassuring boundaries. Indeed, political romantics depend on the status quo to support their aesthetic involvement in radical politics.

The comparison between Paglia and Schmitt can only go so far, however, because Paglia lapses into her own form of Nietzschean aesthetic contemplation, reaching Dionysian ecstasy in discussing Aretha Franklin and other figures of 60's pop-culture. She does argue that the 60's represented some form of concrete and committed political revolt vis-a-vis the bland, self-absorbed abstractions of Foucault and Derrida, but this section remains ephemeral and unconvincing. In any case, the point of this comparison is to point out that the identification of political romantics in an academic and political movement is a necessary condition for the pursuit of truth and practical goals. Political romantics are obstacles to any political or academic movement.

From the horizon of this problem, the far right might be able to better come to terms with the fact that the academic part of the reactionary movement has largely been literary-artistic, and perhaps marginally philosophical since the beginning of the 20th century. Furthermore, it might be useful to identify and criticize (as Paglia has done on the left) the political romantics negatively affecting the intellectual and practical production of the right.

Update 12/10/09
Macrobius added the following comment to a different post, but it was intended for this entry. It is a useful addendum to the etymological definition of romanticism given by Schmitt.

"It is helpful to think in terms of literature and architecture:

In literature, an 'epic' is from the heroic era (of the barbarian invasions), and a 'romance' is written from the perspective of a post-Roman -- a specifically Germanic perspective, looking back at the Roman culture and cultural artifacts it has replaced. It is a term redolent of troubadours and the early or rather pre- Gothic.

In church architecture, it corresponds to the period after 'Saxon churches' and more like the early Norman -- but before the distinctively Gothic.

Spengler likewise captures this sense with his Faustian.

I am inclined to think that Germans writing soon after the 19th century would be connected to these sorts of resonances -- and project the new German culture of Goethe into a politically 'Romantic' role, meaning, primarily, post Respbulica Christiana, or post Ancien Regime. Rome, in this case, being pre-Revolutionary France, ideally the French-German unity of Charlemagne."

The Sunic Journal: Carl Schmitt

2009-12-03T18:12:00.000-08:00

New Right intellectual Tomislav Sunic has dedicated an episode of his radio journal to Carl Schmitt.

Link to mp3: The Sunic Journal: Carl Schmitt

Dr. Sunic's official site: tomsunic.info

Schmitt on Monarchy and Historicism

2009-10-16T19:10:00.000-07:00

In Constitutional Theory Schmitt enumerates the various types of justification presented for monarchy and separates them into two classes: political and nonpolitical.

Religiously grounded justifications for monarchy only have polemical meaning for enlightenment opponents because the source of the monarch's power is not owed to any man or institution. But the significance is greater for the traditionalist, who recognizes in the monarch an analogy to God who governs the world. The religious justification goes beyond mere analogy, though, as the monarch is also considered to have supernatural attributes. Schmitt explains that “[t]he last attempt to work seriously in practical terms with these religious images of monarchy falls in the year 1825, when Karl X of France still wanted to heal the sick through the laying on of hands, an attempt, however that only produced a somewhat embarassing romantic imitation.”

The patriarchal justification exemplified in the work of Filmer takes a similar approach through analogy, and is therefore also misunderstood by enlightenment opponents. Schmitt categorizes these justifications:

“All principled justifications of monarchy contain at the core only two ideas, which lead in a distinctive sense directly to monarchy: the idea of a personal god and image of the father. None of these ideas belongs essentially to the political sphere. Where the monarchy is religiously justified and the monarch becomes a divine creation or one standing in a special connection with God, the idea moves in the theological realm or on the terrain of worldviews, not in the political sphere. If the world is governed as a unity by a single god, and the unity of the state is understood under a monarch as something equivalent and analogous, the primary concept is obviously God and world and not monarchy and state. If the monarch is understood as the father of the state family and the dynastic concept of a hereditary monarchy is derived from it, the idea of first importance is family and not state. Always, therefore, it is nonpolitical ideas and images that constitute the core of the argumentation.”

To this understanding Schmitt contrasts 19th- and 20th-century justifications for monarchy, which turn on pragmatic-political justifications. Under this tradition of thought Schmitt surprisingly places both enlightenment and certain counter-enlightenment thinkers:

”In the nineteenth century, the rationalistic and empirical justifications of monarchy are distinguished by the fact that they incorporate the monarch into the rechtsstaat system of separation of powers. These justifications make a mere governmental form out of the monarchy and render it into the more or less influential chief executive. The justifications are different here, but they always take proving the usefulness and appropriateness of the monarchy as their point of departure...Every consideration of appropriateness and usefulness, just like all arguments deduced from historical experience, whether they are presented by liberal theorists like Benjamin Constant and Guizot or by antiliberal monarchists like Charles Maurras, are necessarily relative.”

Schmitt proceeds to criticize the historicist arguments because if one takes such an approach, then “[o]ne can only say that monarchy arises and passes away like everything in history.”

Interestingly, this criticism can be raised against de Maistre, who advances certain historicist and pragmatic justifications for the monarchy.

Eiserne Krone: Carl Schmitts Hobbes-Interpretation

2009-09-16T14:58:00.000-07:00

Eiserne Krone reports on a new book that investigates Schmitt's Hobbes. The popular description of Schmitt as the "20th Century Hobbes" is rather misleading unless one understands how Schmitt's Hobbes differs from the social-contract Hobbes we usually associate with the author of Leviathan.

Eiserne Krone: Carl Schmitts Hobbes-Interpretation

Some observations on Schmitt's early constitutional theory and de Maistre's analysis of constitutions.

2009-08-31T16:30:00.000-07:00

“Government is a true religion; it has its dogmas, its mysteries, its priests; to submit to the individual discussion is to destroy it; it has life only through the national mind, that is to say, political faith, which is a creed.” - Joseph de Maistre, “Study on Sovereignty”

In his "Study on Sovereignty," Joseph de Maistre argues that no nation is constituted a priori because a constitutive act requires a presupposed common ground for compromise and the mutual recognition of duties and rights amongst the people. This common ground is the essence of the constitution because the force of the prescriptions codified in the document derives from the capacity and will of the constitution-writing people to enforce and assent to those laws. This will depends in turn on the pre-formal customary duties observed by the constituting people. For example, Americans have rights because the original constituting force was bound by the customary duty to subordinate itself to whatever prescriptions were given in the constitution. If this original duty is subjected to critical thought – to rational discussion – then it is possible that this duty may be attacked and destroyed institutionally. That is, if the initial conditions of a constitution-making people, such as the customs antecedent to the written constitution, are subject to the same procedures as ordinary constitutional laws – abrogation though amendment or even indictment through public discourse – then it is possible that the basis of the social order may be eliminated. Since the preservation of social order is an axiom of statecraft, this problem has to be confronted by all administrations.

This possibility leads de Maistre to champion the necessity of national dogmas and prejudices that are unimpeachable through discussion and rational political procedure. In practice, this would entail restrictions on certain bourgeois liberties like freedom of speech, and on the scope of laws.

Schmitt employs a similar pattern of reasoning in the development of his constitutional theory. The distinction between "constitution" and "constitutional law" that Schmitt emphasizes against legal-positivists aims at limiting the scope of legislation and adjudication in order to reinforce the foundation of the political order against corrosive legal and administrative activism. The constitution, for Schmitt, is qualitatively different from a constitutional law, but it also determines the validity of constitutional laws. Schmitt, like de Maistre, believes that a constitution presupposes existing social forms and agreements. A constitutional convention does not create a new political unity but instead gives a constitution to an already-existing concrete political community in a decisive act, and through that process determines a specific form of political life for the community:

“[T]hat the constitution establishes itself is obviously nonsensical and absurd. The constitution is valid by virtue of the existing political will of that which establishes it. Every type of legal norm, even constitutional law, presupposes that such a will already exists.” - Constitutional Theory, 76

Schmitt justifies this assertion through a comparative analysis of various constitutions and then explains that constitutional laws are valid only if they are consistent with existential values:

”Every existing political unity has its value and its “right to existence” not in the rightness or usefulness of norms, but rather in its existence. Considered juristically, what exists as political power has value because it exists. Consequently, its “right to self-preservation” is the prerequisite of all further discussion; it attempts, above all, to maintain itself in its existence, “in suo esse perseverare” (Spinoza); it protects “its existence, its integrity, its security, and its constitution,” which are all existential values.” - Ibid.

If the political community in America decided on the political form of democracy against monarchy (as stated in the preamble to the constitution), then any subsequent constitutional law must be consistent with this decision and not establish, for example, sovereign bodies that are unaccountable to the "people" mentioned in the preamble. From a purely normative standpoint, it might be "legal" for the constitution to be amended so that it enables an absolute sovereign and terminates democracy, but for Schmitt, this amendment would be unconstitutional because it was inconsistent with the initial political form chosen by the constituting force. Indeed, Schmitt explains that, although the Weimar constitution could be changed through constitutional amendment [Art. 76], this procedure “should not be taken to mean that the fundamental political decision that constitutes the substance of the constitution can be eliminated at any time by parliament and be replaced through some other decision. The German Reich cannot be transformed into an absolute monarchy or into a Soviet republic through a two-thirds majority decision of the Reichstag. The “legislature amending the constitution” according to Art. 76 is not omnipotent at all” (Ibid, 79). Such a radical change in the form of political existence can therefore never be brought about through the legal process; the change is only possible through a radically new, extra-legal political event.

Some notes on de Maistre's Considerations

2009-07-21T16:51:00.000-07:00

Joseph de Maistre's Considerations on France contains an interesting sketch of realist anti-formalism. Below are some citations and reflections.

”1. No constitution is the result of deliberation. The rights of the people are never written, or at any rate, constitutive acts or fundamental written laws are never more than declaratory statements of anterior rights about which nothing can be said except that they exist because they exist." (Maistre's note: “It would take a fool to ask who gave liberty to the cities of Sparta, Rome, etc. These republics did not receive their charters from men. God and nature gave them to them.”) (Considerations, 49)

Analysis: Rights consist in the power to act within a certain sphere defined by the observance of duty by others (see Hohfeld's analytic). If this sphere has not been created, then they do not exist. In addition, this sphere cannot be created by formalization, because written laws are inert and do not enforce themselves.

One deficiency of this explanation is that it doesn't account for the possibility that a formal declaration of rights produced by deliberation can precede the enforcement of rights. However, one can still say that these rights potentially existed, because the power to enforce them existed, and the declaration only brought out the latent possibility.

”The rights of the people, properly so called, often enough proceed from the concessions of sovereigns and in this case can be verified historically; but the rights of the monarch and the aristocracy, at least their essential rights, those which we may call constitutive and basic have neither date nor author.” (Considerations, 50)

Analysis: The second part of this sentence references Divine influence on the origin of right, but it also conforms with Maistre's realist analysis of law. In a monarchy characterized by dynastic legitimacy, the sovereign gives the constitution to a nation and possesses the power to legislate. Hence, the rights of the people proceed from the power of the sovereign. However, the rights of the sovereign and the nobility cannot proceed in this same manner, because they are presupposed by the very capacity to legislate and give rights. This means that any declaration of the rights of the aristocracy or the monarch would be tautologous in the sense that they would be the formal declaration of powers that already exist de facto.

”5. Although written laws are merely declarations of anterior rights, it is far from true that everything can be written down; in fact there are always some things in every constitution that cannot be written and that must be allowed to remain in dark and reverent obscurity on pain of upsetting the state." (Ibid)

Analysis: Maistre cites Hume to this end: “[Parliament's right to remonstrate against the king] touched upon the circumstance in the English constitution which is most difficult, or rather altogether impossible, to regulate by laws, and which must be goverened by certain delicate ideas of propriety and decency, rather than to any exact rule or prescription.” To this principle Maistre opposes Thomas Paine's assertion that a constitution doesn't exist unless it can be put in his pocket.

For Maistre, like Bodin before him, the penumbral darkness endemic to all legal forms calls upon existing, anterior principles presupposed but not expressed by the law.

”6. The more that is written, the weaker the institution becomes, and the reason for this is clear. Laws are only declarations of rights, and rights are declared only when they are attacked, so that a multiplicity of written constitutional laws proves only a multiplicity of conflicts and the danger of destruction.” (Ibid)

Analysis: Codification has a specific purpose consisting in the preservation of principles that may otherwise be ignored or forgotten. In other words, codification confers moral qualities on principles by the act of formalization. Thus, if an entity declares its own rights, it is revealing that it needs to defend those rights through other means besides those normally characteristic of its being.

Maistre continues: ”This is why the most vigorous political system of secular antiquity was that of Sparta, in which nothing was written.”

”7. No nation can give itself liberty if it is not already free. When a nation begins to reflect on its existence, its laws are already made. Human influence does not extend beyond the development of rights already existing but disregarded or disputed. If imprudent men overstep these limits with reckless reforms, the nation will lose what rights it had without attaining those it hopes for. From this follows the necessity of innovating only rarely and always with moderation and trepidation.” (Ibid)

Analysis: As mentioned earlier, formal procedure and legislation confer a special moral quality on principles that need to be defended. However, if this moral legitimacy inherent in legality comes to dominate the presupposed legitimacy of the constitution-giving power, then it is possible that rights may be legislated that impinge on the rights of the original institutions. This is how a nation loses its original, fundamental rights.

The Maverick Philosopher on Political Romanticism

2009-07-16T05:47:00.000-07:00

An adequate exposition of Schmitt's theory of political romanticism from the Maverick Philosopher

The author of that blog has since moved here.

Thomas Kuhn on Deism and Political Theology

2009-07-04T09:17:00.000-07:00

"Other reflections of the new science can be discovered in the political philosophy of the eighteenth and nineteenth centuries. Several recent writers have pointed to the significant parallels between the seventeenth-century conception of a mechanically functioning solar system and the eighteenth-century conception of a smoothly running society. The system of checks and balances incorporated in the Constitution of the United States, for example, was intended to give the new American society the same sort of stability in the presence of disruptive forces that the exact compensation of inertial forces and gravitational attraction had given to the Newtonian solar system. Also, the eighteenth century's determination to derive the characteristics of a good society from the innate characteristics of the individual man may well have been fostered in part by the corpuscularism of the seventeenth century. In eighteenth- and nineteenth-century thought the individual appears again and again as the atom from which the mechanism, society, is fabricated. In the opening paragraphs of the Declaration of Independence, Jefferson dervied the right to revolution from the God-given or inalienable rights of the social atom, man, and his derivation seems to parallel the one in which Newton, a century earlier, had derived the mechanism of nature from the God-given or innate properties of the individual physical atom."
- Thomas Kuhn, The Copernican Revolution, 263

Sacred Orientations: Schmitt and Eliade

2009-07-01T19:47:00.000-07:00

The Sacred and the Profane

“[T]he sign, fraught with religious meaning, introduces an absolute element and puts an end to relativity and confusion. Something that does not belong to this world has manifested itself apodictically and in so doing has indicated an orientation or determined a course of conduct.” - Mircea Eliade, The Sacred and the Profane

“An abyss separates us from the time when international law textbooks still spoke of Christian international law, and of the right of Christian nations.” - Carl Schmitt, The Nomos of the Earth

Schmitt's presentation of the nebulous Nomos theory of law is a confounding departure from the more rigorous and precise decisionist and institutionalist methods employed in his Weimar-era works. Despite this fault, Schmitt manages to present several valuable insights in Nomos of the Earth and Land and Sea, and it is for this reason that there has been a surge of interest in Schmitt's post-Weimar texts. But most of this interest has manifested itself in relatively straightforward treatments of Schmitt's arguments without reference to his (to a certain extent incoherent) theoretical context. The following is a limited discussion of that theoretical context focusing on the work of Romanian philosopher and religious historian Mircea Eliade. Eliade's own theoretical context is equally complex and this piece can accordingly only serve as a preliminary investigation that will need to be supplemented in the future by reference to thinkers like G.W.F. Hegel, Emile Durkheim, Rene Guenon, Julius Evola, Martin Heidegger, as well as the Historical school of jurisprudence. The scope of this investigation is furthermore confined to Eliade's work of religious history and phenomenology: The Sacred and Profane.

Religious history and phenomenology are relevant to Schmitt's later jurisprudence as a consequence of his belief in the relationship between myth, religion and law. This belief is supported by the scholarship of figures in the Historical school of jurisprudence like Savigny and Bachofen, and by the conclusions of the three famous 19th century Catholic counter-revolutionaries: Joseph de Maistre, Luis de Bonald, and Donoso Cortes. However, at the beginning of Nomos, Schmitt cautions us not to focus too intensely on “elemental-mythological” approaches because the book rests on essentially “jurisprudential foundations.” (Schmitt, 37) Nevertheless, in distinguishing himself from Haushoferian geopolitical approaches, Schmitt affirms that the “ties to mythological sources of jurisprudential thinking are much deeper than those to geography” (Schmitt, 38) and concludes that “[h]uman thinking again must be directed to the elemental orders of its terrestrial being here and now.” (Schmitt, 39)

Eliade's Theory

Eliade, like Durkheim, divides the world into two modalities: the sacred and the profane. For Eliade, however, these modalities are existential categories concerning different types of “being in the world” (Eliade, 14). For those who exist this way, and divide the world accordingly, space is experienced as something heterogeneous because it is carved up between sacred and profane spaces.

Sacred space has a fixed ontological character in that it is the only “real” space, which is distinguished from the formless, chaotic “profane” world. In other words, “the manifestation of the sacred ontologically founds the world” (Eliade, 21). Eliade gives the name “hierophany” to this phenomenological event. The disenchanted natural world, which is ordinarily profane, reveals something sacred to man through hierophany. The incarnation of God in the natural body of Jesus Christ, was, for Eliade, “the supreme hierophany” (Eliade, 11). This experience, “a primordial experience, homologizable to a founding of the world,” is pre-conceptual and precedes all human reflection on the world (Eliade, 20).

Ontological Realism

From his investigations of various religions throughout history, Eliade concludes that “religious man has always sought to fix his abode at the center of the world” (Eliade, 22). To have an abode or a home furthermore presupposes a fixed, unassailable point that cannot be referenced if every point is relative; i.e., one cannot orient oneself spatially without a fixed point that is differentiated from other points. Eliade therefore concludes that, “no world can come to birth in the chaos of the homogeneity and relativity of profane space. The discovery or projection of a fixed point – the center – is equivalent to the creation of the world” (Ibid). Thus, hierophany confers unique ontological status on a specific point in a homogeneous world, thereby making the world heterogeneous.

Sacred space therefore rests like an island in the formless, chaotic sea of the profane. This is more than a vague metaphor because water symbolizes in primitive cultures “the preformal modality of cosmic matter” i.e., chaos (Eliade, 41). According to Eliade, the present age is defined by this sea: it is profane. Waves of orientation – fixed points – emerge and disappear in accordance with pragmatic “needs of the day” (Eliade, 23). And yet the present age cannot entirely do away with the sacred because it is the only source of orientation, and orientation is, for Eliade, a necessary condition for all further human activity (Eliade, 22). We therefore retain sacred temporal orientations, like our birthday, or spatial orientations like our place of birth, or our church. For Eliade, the Church serves a function analogous to a wall: it separates the sacred and profane, providing an island of orientation for religious man.

Religious man's desire for spaces like these is not just a negative desire not to “be paralyzed by the never-ceasing relativity of purely subjective experiences,” (Eliade, 28) but is also a desire to imitate parts of our religious narrative – our cosmogony. Indeed, Eliade states that the efficacy of religious man's attempt to construct a sacred space is measured by the extent to which it “reproduces the work of the gods” (Eliade, 29).

Land appropriation

In his attempt to demonstrate how sacred space influences religious man's existence, Eliade focuses a great deal on territory and land appropriation.

“One of the outstanding characteristics of traditional societies is the opposition that they assume between their inhabited territory and the unknown and indeterminate space that surrounds it. The former is the world (more precisely, our world), the cosmos; everything outside it is no longer a cosmos but a sort of “other world,” a foreign, chaotic space, peopled by ghosts, demons, “foreigners” (who are assimilated to demons and the souls of the dead)” (Eliade, 29).

The division between home territory and extra-territorial spaces (inhabited or not) therefore entails a division between sacred and profane space for religious man, because orientation toward a home and a world only occurs as a consequence of the manifestation of the sacred. Eliade further indicates that this distinction is accompanied by the possibility of new categories to comprehend and deal with the extra-territorial, profane space. To the extent that this space is inhabited by humans, possibilities for political and legal delineations emerge.

Because religious man desires sacred space, and because the paradigmatic model for the sacralization of space is found with the gods in their Creation, religious man attempts to consecrate these chaotic, extra-territorial spaces and establish sacred orientation in their place; i.e., he attempts to appropriate profane spaces. This appropriation is, according to Eliade, accompanied by a “ritual repetition of the cosmogony” because what is to become religious man's world must first be “created” (Eliade, 31).

“When the Scandinavian colonists took possession of Iceland (land-náma) and cleared it, they regarded the enterprise neither as an original undertaking nor as human and profane work...For them, their labor was only repetition of a primordial act, the transformation of chaos into cosmos by the divine act of creation” (ibid)

This primordial act is the origin of the legal title to land. Legal validity is conferred on the act of appropriation by its “unification” with the creative work of the gods (Eliade, 30). Religious man, in conquering and establishing order in a profane space through force, thereby orients the space toward a sacred cosmos. Since theology is normative, the process of orientation has the associated effect of establishing a legal order. “At this origin of land-appropriation, law and order are one; where order and orientation coincide, they cannot be separated.” (Schmitt, 81)

Law as the unity of order and orientation

The legitimation of the appropriative act by orientation to the sacred ontologically fixes that space and its institutions. This power to ontologically “fix” a space resides in myth, for Eliade, because myth speaks of realities and of what was or is the case without justification. Myth therefore establishes “apodictic truth” (or, at any rate, truth that is experienced as unassailable and fixed) on the ruins of chaos (Eliade, 95). Schmitt accordingly begins his discussion of the origin of law by reference to “mythical” language and its “threefold root of law and justice” (Schmitt, 42). Schmitt's initial discussion of this origin describes law as a product of the human experience of living on and cultivating the land: land supports linear divisions, cycles of harvest and the visual extension of man's dominion over other men and animals in the form of walls and enclosures. (ibid) In contrast, for Schmitt, the sea does not contain these possibilities for rhythms of cultivation or linear division because the sea does not support structures or hold forms.

From this distinction between land and sea we can infer the empirical and phenomenological approach Schmitt employs: it is originally not possible for man to experience or structure the sea in a way similar to the possibilities afforded by land so that he may have law (recall Eliade's assertion that the sea is originally conceived as chaos). Hence, law and norms are originally bound to the immanent experience of earth and entailed by the possibilities for order and structure on land. These structures are additionally oriented toward mythology by virtue of primitive man's understanding of the Earth as a sacred entity.

Schmitt is furthermore in agreement with Eliade that each ancient or “pre-global” civilization

“considered itself to be the world, at least the world inhabited by human beings, or to be the center of the world, the cosmos, the house, and each regarded the part of the earth outside this world, as long as it did not appear to be threatening, to be either uninteresting or an odd curiosity. To the extent that this outside was threatening, it was thought to be a malevolent chaos, in any case, to be an open and “unoccupied” space “free” for conquest, territorial acquisition, and colonization.” (Schmitt, 51) (Compare with Eliade quote above).

The appropriation of chaotic land is accompanied by a new initial division and distribution of the soil, which, for Schmitt, determines the nature of all subsequent “legal relations to soil” (Schmitt, 45). The total ownership and division of land by the land-appropriator is to be understood as a categorical presupposition of law, and Schmitt cites Kant's Philosophy of Law to this end. Supreme proprietorship of the soil, according to Kant, is the “main condition for the possibility of ownership and all further law, public as well as private” (Schmitt, 46). One of Schmitt's examples of law's “telluric” nature is England. English law “clearly distinguished between English soil – those areas ruled by common law – and other spatial areas; common law was regarded as the law of the land (lex terrae)” (Schmitt, 97).

Once land has been appropriated, subsequent legal and institutional developments are informed by “concrete orientations.” The medieval respublica Christiana, for example, was defined by an orientation toward Roman soil, and was characterized by a territorial distinction between sacred Christian and profane heathen territory. The latter could be appropriated by Christians through a Papal order manifested in the form of a just war, which was a type of war oriented to a profane sphere populated by foes (in the absolute, Schmittian sense of the term) (Schmitt, 58). Internal Christian wars, on the other hand, were bracketed according to certain principles, and therefore “did not abolish or negate...total order” (ibid). This distinction implies that legal categories like war and peace were not “free floating” universal concepts, but rather concepts “concretely oriented” toward “the empire, the territorial ruler, the church, the city, the castle, the marketplace, the local juridical assembly” (Schmitt, 59). In this context, it seems that “orientation” signifies a sort of mooring to institutions and places inhabited by actual people living according to certain principles or guiding ideals. Thus, the attachment to Rome by the medieval Christian empire “signified a continuation of ancient orientations adopted by the Christian faith,” and the papacy was “bound inseparably to Rome, in fact, to Roman soil” (ibid).

Schmitt appears to believe at this point that his concept of “orientation” is sufficiently defined to make the assertion that legal continuity “should not be sought historically in cultural and economic consistencies” because “[t]he continuity that bound medieval international law to the Roman Empire was found not in norms and general ideas, but in concrete orientation to Rome” (ibid). However, he has not yet justified this conclusion, because the initial act of land appropriation could simply be analogized to an intellectual abstraction, and “orientation” could be understood simply in terms of a collection of unexpressed assumptions.

Nomos

Schmitt maintains that the original meaning of law was destroyed by various antitheses, especially the distinction between nomos and physis, “whereby nomos became an imposed “ought” dissociated from and opposed to is. As a mere norm and act, nomos no longer could be distinguished from thesmos [law or legislation], psephisma [plebiscite], or rhema [command], and from other categories whose content was not the inner measure of concrete order and orientation, but only statutes and acts” (Schmitt, 69). Schmitt's point is that law was not originally an intellectual abstraction defined by a principle of deontic logic as it came to be in the work of early legal positivists and Hans Kelsen specifically. However, by calling upon mythical language, Schmitt does not intend to “breathe artificial new life into dead myths,” but rather develop heuristically an old concept for a new age in which legal certainty is virtually nonexistent. Schmitt hopes to re-establish legal certainty by demonstrating the original unity of is and ought in the act of land appropriation, which is justified by reference to the sacred. Schmitt also refers to the structural limitations and requirements of spaces – between the sea and land, for example – as certain guidelines for the limits of law. It is sufficient for this investigation to state that this aspect of his approach defines the limits for establishing order, while reference to myth informs his approach to orientation. Indeed, Schmitt asserts that order and orientation meet in the “terrestrial fundament” during the act of land-appropriation (Schmitt, 47).

Nomos, originally conceived, “is the immediate form in which the political and social order of a people becomes spatially visible – the initial measure and division of pastureland, i.e., the land-appropriation as well as the concrete order contained in it and following from it” (Schmitt, 70). To this end, “nomos can be described as a wall, because, like a wall, it, too, is based on sacred orientations” (Ibid). The initial divisions and measures a people gives itself at the moment of land appropriation are therefore oriented toward the sacred. Indeed, the very concept of a wall seems to entail a distinction between order and chaos, and therefore the sacred-profane modality.

In a certain sense, Schmitt's nomos theory of law appears indistinguishable from social-source theses in the philosophy of law, wherein a social event is attributed normative power (hence Jellinek's phrase concerning the “normative power of the factual”). Schmitt explains, for example, that “nomos is precisely the full immediacy of a legal power not mediated by laws; it is a constitutive historical event – an act of legitimacy, whereby the legality of a mere law first is made meaningful.” (Schmitt, 73) The original act of appropriation is, however, more than simply a non-normative origin of law, for the spatial measures and divisions produced by the appropriation preserve an orientation toward that initial act through time.

Instructive here is Schmitt's discussion of an alternate translation of the Odyssey. Schmitt believes that it makes more sense to speak of Odysseus “comprehending” the various nomoi of the lands through experiencing them rather than coming to “known” or conceptualize the local laws in a neo-Kantian sense. By his experience of the walls, enclosures and divisions of the various tribes and cities he visits, Odysseus understands their fundamental “concrete orders” and norms. In this sense, Odysseus' experience of a city produces “apodictic” normative conclusions about what is sanctioned and forbidden. There is no need, in other words, to make reference to ideology or abstract norms and “basic norms,” because it is prima facie the case that this land is divided this way, and that goods are distributed according to the principles inherent in the very division of the land that one can comprehend by looking at it. To the extent that this initial distribution and division is understood to be oriented toward the sacred, one understands that this order ought to be this way – that it couldn't be any other way – because it is a simulation of the cosmogony. Is is thereby united with ought.

The Marian conquest of the New World

In the Middle Ages Europeans considered Jerusalem and Rome to be the center of the earth - an orientation that would eventually characterize the conquest of the New World. Although the opening up of the New World eventually forced a change in the “structure of old concepts” of the center of the earth (Schmitt, 87), the early appropriations of the profane New World were oriented toward Rome and the Pope (Schmitt, 92). This orientation is demonstrated by a principle of international law that obtained as a consequence of disputes over territorial acquisition. This principle – the raya line – relied on common presuppositions and a common arbitrating authority in the Pope, and, according to Schmitt, expressed “a spatial order that distinguished between the spheres of influence of Christian and non-Christian princes and peoples” (Schmitt, 91).

The Pope had jurisdiction over disputes in the New World because Papal missionary mandate was the official legal title of the conquista (Schmitt, 111). The chaos and profanity of the New World was to be conquered, ordered and subsequently oriented toward Rome and Jerusalem. In this context, all understanding of law – formal or customary – was tempered and structured by the unity of order and orientation toward Rome. The practical implications of this juridical consciousness were: 1) that law was inseparable from the moral and theological considerations of Christianity and its attendant Natural law; and 2) the normative validity of the law was self-evident because it was manifested in the institutions and force-fields of actual power created by Europeans.

The jus publicum Europaeum

Despite the fact that the legal title, and therefore the orientation, of the land-appropriation of the New World would eventually be secularized and oriented toward the concept of Discovery, Schmitt maintains that, “[f]rom the 16th to the 20th century, European international law considered Christian nations to be the creators and representatives of an order applicable to the whole earth.” (Schmitt, 86). Schmitt argues that although there was a great transformation from a theological system predicated on the Church - the medieval respublica Christiana – to a secular-juridical system predicated on the state – the jus publicum Europaeum – European and international law remained oriented toward a Christian Europe.

Here the argument seems to deviate from a model that is compatible Eliade's discussions of orientation. Indeed, Schmitt regards the detheologization of public life, the elimination of supra-territorial allegiances to churches, the centralization of political decision in the territorial sovereign, and the secularization of theological concepts to be compatible with his mythological approach to law. This new system determined legal concepts in a radically different way so that, for example, just war was determined not by theological conclusions, but rather by Europe's visible structural characteristics (its linear division into territorial nation-states) and the new institutional forms (absolute sovereignty). Schmitt explains that in the new bracketing of war, “right (law) has become a completely institutionalized form; here, men of honor have found a satisfactory means of dealing with a matter of honor in a prescribed form and before impartial witnesses.” (Schmitt, 143) The only reason such formalizations functioned, according to Schmitt, was due to the fact that they were oriented toward a concept of a Christian Europe inhabited by honorable sovereigns.

Thus, for Schmitt, the Realist and liberal assertions that this order was bound only by the maxim pacta sunt servanda are the product of superficial analyses that ignore the orientation of this order:

“[S]trong traditional ties – religious, social, and economic – endure longer. Thus, the nomos of this epoch had a completely different and more solid structure. The concrete, practical, political forms, arrangements, and preconceptions that developed for the cohabitation of continental European power complexes in this interstate epoch clearly demonstrated that the essential and very effective bond, without which there would have been no international law, lay not in the highly problematic, voluntary ties among the presumably unrestrained wills of equally sovereign persons, but in the binding power of a Eurocentric spatial order encompassing all these sovereigns.” (Schmitt, 148)

New Orientations

For Schmitt, what emerged after the collapse of the jus publicum Europaeum was a “collection of states randomly joined together by factual relations – a disorganized mass of more than 50 heterogeneous states, lacking any spatial or spiritual consciousness of what they once had had in common, a chaos of reputedly equal and equally sovereign states and their dispersed possessions, in which a common bracketing of war no longer was feasible, and for which not even the concept of “civilization” could provide any concrete homogeneity.” (Schmitt, 234)

During this period in the history of law, order and orientation are no longer unified, and a base formalism or legal positivism dominates. However, Schmitt continues to speak of orientations after the collapse of Eurocentric international law. Schmitt's approach here is similar to his method of political theology and its “sociology of juridical concepts,” which comprehends law in terms of secular analogies to theological concepts. Orientation then emerges in the context of secular-sacred spaces, such as the headquarters of the League of Nations: the city of “Calvin, Rousseau and the International Red Cross, whose spiritual fate in the past was so closely tied to the world of the Anglo-Saxon democracies” (Schmitt, 241).

There are at least two ways to interpret this secular concept of orientation. The first, which is compatible with Eliade's model, asserts that the dominant orientation of our age is, in fact, a chaotic orientation toward the sea, the medium of absolute freedom and chaos. Part of Schmitt's thesis supports this interpretation, as he writes at length of Britain's “sea-oriented concept of the status-quo” and the role of sea power in the development of the classical-liberal concept of absolute freedom (Schmitt, 245). It is more probable, however, that Schmitt's “orientation” is intended simply as the antithesis to universalism and utopia, so that any order designated and defined by and for a specific people or place has “orientation.” Land- and sea-orientations are therefore not necessarily informed by the sacred-profane modality.

Schmitt's discussion of topoi supports this interpretation because the “commonplace” or topos is to be understood as “orientation” (Schmitt, 50). Schmitt mentions Aristotle's development of different modes of discourse – different orientations - for different spaces. For example, rhetoric was oriented to the marketplace, while other forms of discussion were oriented to different spaces, like the Lyceum. In contrast, More's Utopia – his u-topos – was “rootless” and disoriented and not moored to any concrete place or situation (Schmitt, 178). The best way to understand this approach is to consider Schmitt's discussion of the history of concepts like freedom and peace. For a theologian like Vitoria, the extension of the concepts of freedom and peace are confined by, or oriented to, Christian spaces and Christian people. Another example is found in Hobbes' concept of the state of nature (as opposed to contemporary abstract formulations), which was historically oriented to the concrete reality of the conflict in the New World (Schmitt, 293).

Conclusion

Toward the end of his narrative, Schmitt appears to extract (or mirror) the formal structure from Eliade's conclusions about ontological certainty and the phenomenological experience of fixed points from the sacred-profane modality. In this way, the intuitive force of the antithesis between chaos and order remains even after the collapse of sacred orientations toward Christian land. It seems clear, then, that while Schmitt's treatment of pre-20th century international law is congruent in some rudimentary sense with Eliade's modality, his subsequent treatment is not. Primitive and religious men may have derived their legal and logical justifications for land-appropriation from their experience of the sacred, but modern man certainly does not. Modernity is thus a time of disorientation.

For Schmitt, “[i]n such times of disorientation, the essential juridical task becomes that of properly ascertaining the reality of a fading and a rising nomos, and of disclosing the derivation of each” (Schmitt, 182). Schmitt's use of Pareto's residue-derivation theory here is important because it reveals the structure of his historical approach. Man's innate desire for logical constructions produces formal derivations (law) from the concrete situation in which he is situated. By analogy, one could say that religious man's institutions and formalizations are derivations from his residual desire for the sacred. Whether Schmitt intended this is uncertain (he may have found such speculations to be juridically insignificant), and he leaves his reader to wonder about the dark secret of history that renders his historical theory of law accurate.

Juan Donoso Cortés

2009-04-19T17:48:00.000-07:00

Below are some observations I recorded while reading Donoso Cortes's selected works in English and some secondary literature on Cortes. Cortes represents the 2nd reaction of conservative Catholicism to the revolutions of the 19th century. Specifically, Cortes is concerned with the 1848 revolution.
Cortes sees the wave of revolutions as a reflection of the fact that the rich – the propertied classes – lack the virtue of charity. In this sense, Cortes acknowledges the necessity of revolution:

“What is good is the correction that disobedient peoples receive from tyrants and that tyrants receive from revolutions”

Cortes's anthropological picture of man and his conception of history are generally pessimistic and providential, in the spirit of de Maistre. For Cortes, humans can neither invent nor discover the truth, unless it is placed before them. The will must therefore be subjugated and repressed because, without knowledge of the truth, man can neither desire nor do good. For these reasons, and because evil naturally triumphs over good, all historical periods “end in disaster”. However, this does not mean for Cortes that struggle against evil is not necessary. Indeed, struggle postpones and restrains the coming catastrophe, thereby making struggle a duty. For Cortes, this struggle consists in attempting to restore, insofar as it is possible, the civilizing elements of the Church: inviolable authority, obedience, and the divinity of charity.

Cortes's philosophy is fairly thin, and his conclusions are often unsupported. However, his intent is not to present a philosophical world-view. While most of his fundamental observations concerning human nature and history rest on theological premises, his practical observations on political affairs are logically compelling and relatively pragmatic. In his speeches and letters, Cortes explores the contradictions inherent in 19th century liberal republicanism, and he presents a robust justification for pragmatic dictatorship. Indeed, as an actual statesmen, Cortes was genuinely interested in effecting political change – i.e., in restraining the catastrophe – and his works reflect this. Cortes also offers theological justification for his positions by employing the analogies of political theology.

In his famous speech on dictatorship, Cortes first identifies the dangerous legal formalism lurking behind the current crisis:

“[T]he fundamental point for the gentleman is the following: it is legality in domestic policy. Everything exists by the exact letter of the law. The law must be exactly followed in all circumstances and on all occasions. Gentlemen, I believe that laws are made for societies, not societies for laws. I say: society, everything through society, everything for society; always society, society in all circumstances and on all occasions.“When the letter of the law is enough to save a society, then the letter of the law is best. But when it is not enough, then dictatorship is best.”

Cortes then provides empirical evidence of dictatorship existing in various forms of classical and modern government. He also points out the erroneous analyses proffered by liberal formalists concerning the English Constitution by identifying the personal, dictatorial element therein:

“Gentlemen, it so happens that the English Constitution is the only one in the world (so wise are the English) in which dictatorship is not an exception in the law. It is in the common law. this matter is clear. The Parliament has dictatorial power on all occasions and at all times whenever it desires to exercise it. It is limited only by what limits all human powers – prudence. It is omnipotent. This is what constitutes dictatorial power. It can do everything except change a woman into a man or a man into a woman, say its jurists. It has the power to suspend the right of habeas corpus and to proscribe by means of a bill of attainder. It can change the Constitution. It can even change the dynasty, and not only the dynasty, but even the religion of the state. It can suppress consciences. It can do anything. Gentlemen, who has ever seen a more monstrous dictatorship?”

Cortes therefore employs the classical juridical method in considering not only the form but also the substance of the law. For Cortes – as for Aristotle - law is both written and unwritten custom, which has developed in concert with the institutions of human association. This approach allows Cortes to identify the inadequacies of purely formal – normative – analyses of law, by highlighting the importance of the pre-formal components of society: personal decision and the political nature of society itself. These two elements, for Cortes, are just as important as the formal text of the law, and his proof is found in the political reality of 1848, which demonstrated that the internal validity of formal law was irrelevant in light of the concrete political situation of the time:

“After the sophists always come the barbarians, sent by God in order to cut the thread of argument with their swords.”

Cortes is also, however, a product of the intellectual milieu of the 19th century. His preference for a pragmatic decisionism separates him from the traditional Catholic restoration represented by de Maistre and others, and situates him as a modern reactionary. Carl Schmitt writes:

"It is precisely here that one can think of Sören Kierkegaard, who died two years later (1855). At the time, Donoso was renowned in Europe, whereas Kierkegaard was at most a local or provincial Danish figure considered to be a bit eccentric, whose name was not known in Europe and did not yet deserve to be. But today, we are aware of the value of public opinion. It would be misleading to compare the various perspectives of a dying Spanish envoy in Paris with the death of a virtually unknown individual in Copenhagen. More than 15 years ago, P. Erich Przywara advanced the Spaniard as an impressive counterpart to Nietzsche, and then antithetically compared Donoso’s Christian sacrifice with Nietzsche’s Dionysian sacrifice. Yet, Nietzsche belongs to a later stage of the self-destruction of German idealism, i.e., to a time in which the ruins of the German spirit were transformed into a force field of new theogonic and global uranic rudiments. Donoso’s historical contemporary in the north was Kierkegaard, who in Berlin in the winter of 1841/42 had heard the older Schelling’s famous lecture, which was an astounding failure and signaled an intellectual turning point and the end of German idealism. The names of that coming generation sound different today than they did then, when they were all obscure young men: Kierkegaard, Friedrich Engels, Bakunin, Bruno Bauer, Max Stirner, and Jacob Burckhardt. This explosive mixture came together in Berlin after 1840, when Nietzsche began formulating his explosive ideas. From here, Kierkegaard went his own inward way, and led his all-too-Christian battle against the Christian church. He thereby overcame the 1,800 years that he felt separated him from the essence of the Christian era. His critique of the age is more incisive than any other. He also made clear prognoses, and predicted the horrors of a future reformation. He knew that in an age of masses, historical events would be decided by martyrs, not by statesmen, diplomats, and generals. But his own inward way seemed a way out of history, so that he, too, did not appear to undermine the communist monopoly of the historical understanding of the century."

Schmitt recognizes in Cortes a political analogue to Kierkegaard. Presumably Schmitt believes that Cortes's critique of legal formalism and preference for concrete dictatorial decision mirrors Kierkegaard's attack on Kantian formalism, which demands that Kant's chain of deductively valid norms terminate in, or begin with, a decision in terms of good and evil. Whereas Kierkegaard understood and attacked the errors of formalized, liberalized Christendom, Cortes squared off with the coming materialist interpretation of history and its concomitant monopolization of the language of “humanity”. Each thinker, however, understood the necessary decision – the leap of faith – that would catalyze the struggle against revolution.

The decision - any decision - exalted over the traditional avenues of natural law jurisprudence and politics is perhaps one of the first reflections of the coming age of Fascism, National Socialism and atheistic conservatism:

"Compared with the Spaniard, who had looked into the abyss of the terror of 1848, Maistre was still an aristocrat who wanted to restore the ancien régime and to prolong and to magnify the 18th century. Given the style of his thought and his choice of words, given the content of his thought and the powerful historical situation, what Donoso had to say was different from the philosophy of conservative and traditionalist authors, who in other respects must have influenced him. He made striking outbursts that often came from the storm clouds of a completely different type of traditional rhetoric." - Carl Schmitt

Cortes seems to therefore represent an intermediary between Catholic conservatism and the restoration, and the conservative revolutions of the 20th century. The content of the 3rd reaction supports this conclusion, as Catholic thinkers like Charles Maurras and Carl Schmitt, though the influence of Cortes, come very close in certain respects philosophically to the modernism of atheists/pagans like Heidegger, Junger, Strauss, etc.

Hamlet or Hecuba

2009-04-14T16:26:00.000-07:00

The author of Thinking With Shakespeare reports:

Carl Schmitt’s Hamlet Oder Hekuba: Der Einbruch der Zeit in das Spiel was published in 1956 and reprinted in German by Klett-Kotta in 1983. Portions were translated into English under the title, “The Source of the Tragic,” trans. David Pan, in a special issue of Telos 72 (Summer 1987): 133-52. The full monograph has been translated into French, Hamlet ou Hécube, trans. Jean-Louis Besson and Jean Jourdheuil (Paris: L’Arche, 1992).

David Pan (UCI) and Jennifer Rust (St. Louis University) are completing a translation of the text, forthcoming from Telos Press, Spring 2009."

It will be interesting to compare this new edition with Simona Draghici's 2006 translation.

Shades of Realism

2009-03-24T19:14:00.000-07:00

I've noticed that there is a tendency to equate Schmitt's later work on international law with the Realism of Hans Morgenthau. There are clear similarities, and the relationship between the two thinkers and their perspectives has been well-documented. But the institutional (and later, spatial) component of Schmitt's "concrete-order" jurisprudence distinguishes "Schmittian Realism" - as Habermas has misleadingly coined the term - from more common forms of Political and Legal Realism.

In Nomos of the Earth, Schmitt presents an analysis of the subject-matter of international law:

I. International law, jus gentium in the sense of jus inter gentes, is dependent, of course, on the organizational forms of the gentes and can mean:

1. inter-populist law (among families, tribes, clans, races, ethnic groups, nations);
2. inter-urban law (between independent poleis and civitates; inter-municipal law)
3. inter-state law (between the centralized order of sovereign territorial entities);
4. law valid between spiritual authorities and secular powers (Pope, Caliph, Buddha, Dalai Lama in their relations with other powers, in particular as an agency of holy wars); and
5. inter-imperial law, jus inter imperia (between Great Powers with spatial supremacy over other state territories), as distinguished from that within an empire or a Grossraum prevailing over inter-populist, interstate, and other international law.

These categories introduce distinctions not common to modern forms of Realism, and point toward influences external to the traditional Realist scope of the state of nature. In other words, we are not only dealing with territorial nation-states, but several different types of political units, and even different types of power (spiritual and secular). Nevertheless, these distinctions are not in themselves incompatible with Realism. The important property in this case relates to the equality between political units in the state of nature. As Schmitt indicates, the inner structure of the political units (gentes) determines the nature of the equality that characterizes the state of nature between them. Schmitt refers to a property that emerges from the relationship between these units:

II. Together with jus gentium in the sense of a jus inter gentes (as distinguished from the structural forms of various gentes), there can be general common law extending beyond the borders of the self-contained gentes (peoples, states, empires). It can obtain in a common constitutional standard or in a minimum of presupposed internal organizations, in common religious, civil, and economic concepts and institutions. The most important case is a generally recognized right of free men to property and due process of law extending beyond the borders of states and peoples.

This emergent common law constrains the scope of self-interest in the state of nature so that a normative order comes to dominate interstate relations. The maximization of state self-interest is then tempered by the norms and assumptions of this order, and the specific interest of each political unit is defined to a certain extent by the common law. The balance of powers is therefore not a “lawless chaos of egoistic wills to power.” Indeed, Schmitt states that the Eurocentric order of the Jus Publicum Europeaum "was not the precarious ties of sovereign wills 'autonomously joined together,' but rather membership in a balanced spatial system of benefit to all.”

Schmitt's appeal to a common law among nations is an appeal to a theory of political justice, and his conclusions concerning international law should therefore not be dismissed on the grounds that they eschew justice in favor of the nihilism of an abstract Realpolitik. It is the case, however, that Schmitt resists the rationalization of political relationships that accompanies cosmopolitan-liberal theories of international law. But this resistance is only against legal positivist (which is to say, contractual) discussions of international order, and not against reason in general. For Schmitt, "[w]e need neither abandon human reason nor cease to consider rationally all the possibilities of a new nomos of the earth." This is the case because Schmitt's nomos theory of law is concerned with reconnecting the logical disconnect between is and ought that ultimately produced continental legal positivism. For Schmitt, recovering law as nomos is supposed to show how deontic content can be derived from ontological facts; i.e., how nomos inheres in physis in such a way that fundamental (legal-) normative conclusions are apodictic.

More on imperialism and colonialism

2009-03-21T08:42:00.000-07:00

The Hegelian insight about ancient Greek custom in the previous post is repeated by Hobbes in the Leviathan:

“The multitude of poor, and yet strong peoples still encreasing, they are to be transported into Countries not sufficiently inhabited: where neverthelesse, they are not to exterminate those they find there; but constrain them to inhabit close together, and not range a great deal of ground, to snatch what they find; but to court each little Plot with art and labour, to give them their sustenance in due season. And when all the world is overcharged with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death.”

It appears as an abstract principle in Hobbes (as opposed to Hegel's historical treatment), but the historical context of Leviathan lends to an historicist understanding of the quote.

Imperialism and Isolationism

2009-01-17T09:04:00.001-08:00

The American foreign-policy cycle has once again reached the isolationist phase for a significant portion of the American popoulation. Ron Paul is a case in point.

Something worth considering here is that the American "polity" is in fact a product of the conquest of the New World.

On the one hand, humanists and individuals generally influenced by "heathen philosophy" like Bacon and Juan Ginés de Sepúlveda (de Las Casas' antithesis) justified the conquest by reference to Aristotle's invocation of the master-slave dialect in the relationship between Greek and barbarian. Amerindians were barbarians and were therefore naturally the subjects of European rule.

On the other, there was a sort of formal argument concerning the colonization of new territories that is often referenced in the history of philosophy. Aristotle briefly mentions in the Politics that a viable solution to internal strife, such as that caused by restless, unemployed portions of the population, is the colonization of new territories with those populations.

Schmitt references sections 247 and 248 of Hegel's Philosophy of Right at least three times in his body of work, and especially in the context of the conquest of the New World.

In these sections, Hegel describes the practical application of this principle in antiquity:

"This mode of colonization was frequently employed by the ancients, especially the Greeks. Hard work was not the concern of the Greek citizen, whose activity was directed rather towards public affairs. Accordingly, whenever the population grew to a point at which it could become difficult to provide for it, the young people were sent off to a new region, which was either specifically chosen or left to be discovered by chance." - Section 248

The obvious parrallel here is in European states ameliorating the problems of virulent religious pluralism by opening up a new space of conquest. Indeed, Hegel continues in that passage to argue that the liberation of colonies is an even greater advantage to the mother state, because they are no longer dependent on one another.

The historical origins of America lie in a similar colonial necessity, which was ultimately caused by the internal political antagonisms in Europe. From its inception the American polity has been tied to foreign intervention and violence. The 19th century Monroe Doctrine - one of the greatest statements of American isolationism - was in principle an announcement of imperialistic intent in the western hemisphere; and the entirety of the 20th century is defined by a bellicose American foreign policy. Where, then, does this tradition of isolationism ever find justification by reference to American tradition?

Regardless of the justification, in an age of increasing economic interdependence and instability, and of radical political antagonism between the West and the Near East, I have trouble imagining what an isolated (i.e., non-bellicose, anti-interventionist) political entity might look like.

Gaddafi entreats the U.S. to return to Grossraum-thinking

2008-12-23T10:46:00.000-08:00

Gaddafi sides with Russia and invokes Medvedev's theme of a multipolar world in the op-ed below. Interestingly, he suggests that America return to the Monroe Doctrine. Gaddafi emphasizes the original intent of the doctrine not to meddle in European politics, but ignores the "imperialistic" and interventionist sense of the doctrine. Nevertheless, it seems that there is a renewed interest in establishing a world order in the form of one of the three possibilities Schmitt references in Nomos of the Earth: a world divided amongst a plurality of Grossraumen.

GADDAFI: Provoking Russia

The gamble of poking the bear

Muammar Gaddafi
Tuesday, December 23, 2008

OP-ED:

Once again, the West's policy toward Russia and its addiction to interfering in the affairs of other countries is having dangerous effects on the rest of the world. The seeds for the current danger were sown by NATO´s expansion to Russia's borders after the fall of the Soviet Union. That deliberate, provocative and continuing process echoes in Russia's long memory the painful experience of the Napoleonic and German armies storming across Europe into their motherland, hellbent on conquest.

NATO's expansion was not merely an attempt to secure Russia's vast resources - the sole objective of those earlier adventures. Its other aim was to fill the political vacuum left by the dismantlement of the Soviet Union. It was "independence mania" being driven down the throats of the former Soviet republics. However, Russia perceives its encirclement - from Central Asia to the Black Sea and the Baltic Sea - to be a threat, the effects of which are now playing out on the regional stage, including the recent hostilities in Georgia.

The real danger lies in the fact that Russia possesses 16,000 nuclear weapons, among the largest stock in the world. Intimidating Russia and attempting to besiege it fuels nationalism and threatens the world, again, with nuclear war. A new arms race is already afoot in the wake of the West´s decision to install a missile system in Eastern Europe, just miles from the Russian border.

Interestingly, the West's misread of Russia's reaction to NATO expansion was a precursor of recent strategic blunders - such as the invasion of Iraq - based on misleading information and short-sighted and naive analysis. Did the West really expect that "independence mania" would stop at pro-West Kosovo and not reach Abkhazia and South Ossetia? Now NATO is considering Georgia and Ukraine for their military alliance, more geopolitical bombs at Russia´s borders.

The continuation and expansion of NATO has no justification anymore, after the dismantlement of the Soviet Union and the end of the Cold War. And, unlike during the Cold War, Russia is not defending a political, economic or philosophical ideology; it has none. What it will defend is Russian nationalism and the integrity of the Russian nation itself. In fact, it will be defending its very existence. This makes the current situation all the more dangerous.

America, like any other country in the world, has the right to defend itself as well as to seek to live in permanent peace. Its remote geographical location - insulated by two vast oceans and with non-threatening neighbors to the north and south - has made it a safe haven for immigrants and refugees, away from the conflicts and ambitions of the old world. Such a stature makes America the worthy host of the United Nations. Such a status would also qualify it to be a neutral country.

As America reassesses its role in the world under a new president, it should consider a return to the Monroe Doctrine, which called for non-interference in problems or relations with Europe, and non-expansion by European countries of their colonial hegemony toward America. This principle of non-interference should be extended by and for all countries of the world.

Greed, stupidity, recklessness and miscalculation must not continue to implicate humanity in war. Russia is not the Soviet Union. The world has moved on, and cooperation, not intimidation, is the key to peace and progress. Will the West wake up to this fact in time?

Muammar Gaddafi, the leader of the Great Socialist People´s Libyan Arab Jamahiriya, recently returned from a state visit to the Russian Federation.

Source

Thoughts on Telos press and Critical Theory

2008-12-18T21:53:00.000-08:00

Telos press is an excellent resource for a wide range of political thought. They consistently provide new translations of dissident thinkers like Carl Schmitt and Ernst Jünger, and their journal operates as a scholarly medium for proponents of far left and far right thought to engage in discourse.

The "official" ideological perspective of the journal seems to have gone through a series of changes, from Marxism and neo-Marxism, to critical theory and the bourgeois liberalism of Rorty. Russell Berman's introduction to the latest issue provides the outsider with an interesting snap-shot of the state of "critical theory" and its politics.

"Community" has long been a companion of Critical Theory, but it has always pointed in two diametrically opposed directions. One path leads us to communitarian dreams of a genuine sociability and a full life. Romantic sensibility, anxious about the modern experience of cold rationality and mechanical organization, elaborates counter-models of authentic living, embedded in organic communities deemed genuine. While the Enlightenment legacy appears to abandon us to alienated isolation—no matter how much it proclaims the importance of public discourse—the romantic community provides an existential alternative, an opportunity to reclaim a human authenticity. Ferdinand Tönnies's famous conceptual binary named this drama: the opposite of the impersonality of the modern Gesellschaft is the communal warmth of the Gemeinschaft. At stake is a choice between formal rationality and emotive solidarity, between organization and affection, between logic and love. In the envisioned community, distance can melt away, to be replaced by forms of living that are genuinely worthy of human beings.

Yet while Critical Theory has a history of appealing to community as a corrective to liberal isolation, it also understands how, along another dangerous path, this communalism can grow brutally repressive. The countercultural pipe dreams of Gemeinschaft can easily morph into the self-destructive violence of a Nazi Volksgemeinschaft, with a universal degradation of freedom. Community solidarity takes on the character of organized discipline, eliminating internal differentiation and the very suppleness and flexibility that had been touted as the comparative advantage of community over mechanical rationality. Instead of human warmth, the repressive community only offers sadistic ardor. It is the ambiguous point where an ecstatic "Yes, we can" resounds into the imperative "Now, you must," since the community named by the plural first person requires state power to issue commands in the name of the people. The landscape of the twentieth century is covered with examples, extreme and less than extreme, of heroic communities, with vaunted world-changing agendas, that insisted on uniformity and loyalty. In the face of repressive conformism, Critical Theory regards the insistence on this sort of community and its indeterminate appeals as nothing more than ideology. The romanticism of the commune is stalked by its own evil twin, the rationality of 1984. Given such managed community of socialized control, the totally administered society, the mission of Critical Theory is to seek out the possibilities of dissent...

Writing in 2008, Berman raises the old dichotomies of the Romantic left: reason and emotion, community and individual, conformity and dissent. Tönnies's sociological distinction between Gemeinschaft and Gesellschaft emerges once more to draw the battle lines, and Berman signifies his alliance with the former. This allegiance, however, necessitates a confrontation with the 3rd reaction, which also finds its roots in romantic dispositions and Gemeinschaft thinking. Berman's introduction struggles with the reality of the Volksgemeinschaft by discussing dissent; that is, by discussing how an individual embedded in a distasteful Gemeinschaft might resist communal oppression. The hagiography with direct or indirect links to Nietzsche - from Nietzsche himself to Benjamin and Heidegger - is called upon for lessons in individualist critique and dissent. We are told, for example, that "the Islamic world needs intellectuals like Nietzsche and Voltaire."

This whole approach strikes me as unintentionally ironic. After affirming the viability of a romanticized Gemeinschaft, the critical communitarian reverts to individualistic dissent in order to dissociate himself from a virulent, reactionary Gemeinschaft (National Socialism) whose intellectual strength is nourished from the same source as his own: namely, from 19th century radical individualism and aestheticism. After over a century of failed communities and celebrated dissent, the endless discussion concerning which political arrangement is authentic continues. The communitarian-oriented critical theorist remains committed to forms of individualistic perspectivism that will always be inimical to any stable political unity.

The lack of serious political action and intellectual consensus, not only at Telos, but also amongst critical theorists and the post-Marxist left, is symptomatic of a pervasive political romanticism, or what Carl Schmitt called subjective occasionalism. From this perspective, the romantic flirtation with Gemeinschaft thinking is not a rational response to being abandoned in bourgeois-individualistic “isolated alienation”, but rather a negative consequence thereof. That communitarian-oriented critical theorists recoil into radical-individualistic dissent in the face of concrete manifestations of Gemeinschaft like National Socialism and radical Islam perhaps confirms Schmitt's thesis that the romantic takes ostensibly serious and important domains like the political and relativises them into mere occasions of their personal fancy. Indeed, despite any pretensions to authentic communal political associations, the critical theorist always holds his individualistic trump card: the unjustified duty to throw off all externally imposed value systems. Whatever the utility such a duty may have in times of horrible nihilism and slaughter, it is clearly antithetical to the sustenance of an authentic political unity.

It is at this point that we can turn to the 1924 preface of Schmitt's treatise Political Romanticism:

It is only in an individualistically disintegrated society that the aesthetically productive subject could shift the intellectual center into itself, only in a bourgeois world that isolates the individual in the domain of the intellectual, makes the individual its own point of reference, and imposes upon it the entire burden that otherwise was hierarchically distributed among different functions in a social order. In this society, it is left to the private individual to be his own priest. But not only that. Because of the central significance and consistency of the religious, it is also left to him to be his own poet, his own philosopher, his own king, and his own master builder in the cathedral of his personality. The ultimate roots of romanticism and the romantic phenomenon lie in the private priesthood. If we consider the situation from aspects such as these, then we should not always focus only on the good-natured pastoralists. On the contrary, we must also see the despair that lies behind the romantic movement – regardless of whether this despair becomes lyrically enraptured with God and the world on a sweet, moonlit night, utters a lament as the world-weariness and the sickness of the century pessimistically lacerates itself, or frenetically plunges into the abyss of instinct and life. We must see the three persons whose deformed visages penetrate the colorful romantic veil: Byron, Baudelaire, and Nietzsche, the three high priests, and at the same time the three sacrificial victims, of this private priesthood.

Schmitt transposes Kierkegaard's classic attack on the 19th century aesthete into the sphere of the political. The romantic in this sphere renders the political an occasion for his own self-reflection, an object of half-serious play. It is this sort of subjective occasionalism, fostered in the individualistic-bourgeois security of the 19th century, that allowed the explosive dissident Nietzsche to demand more war for the sake of war, while at the same time dissenting from concrete politics. It is perhaps this same subjective attitude that compels the critical theorist to call for a Gemeinschaft predicated on abstractions like love and humanity, and at the same time allows him to call on radical, non-rational individualism to dissent against the “1984 rationalism” of concrete German and Islamic communities.

Schmitt himself was certainly no stranger to romantic impulses, and Jürgen Habermas rightly points out that Schmitt becomes a caricature of the tendencies he criticizes in Political Romanticism at certain points in his career. However, this does not refute his incisive definition and criticism of political romanticism, which provides the serious and concerned individual with the tools to recognize a political blind alley like "communitarian critical theory."

Balakrishnan on Schmitt's later jurisprudence

2008-12-17T09:04:00.000-08:00

A section of Gopal Balakrishnan's The Enemy: An Intellectual Portrait of Carl Schmitt highlights well an aspect of Schmitt's "concrete-order thinking" that I failed to emphasize. Schmitt quotes Hölderlin on Pindar in his paper "On the Three Types of Juristic Thought" (summarized in the previous post) in order to emphasize the “natural”, immanent and undeniable legitimacy of the institution:

The Nomos, the law, is the cultivation, in so far as it is a form, in which man
encounters himself and the god
The church, and the law and the old inherited statutes
Which, stronger than any artifice, holds together the living relations
in which a people encountered itself and encounters the time 1

Schmitt wanted to find a way out of the dangerous relativism inherent in Kelsian (and later, Hartian analytical) legal positivism, Hobbesian decisionism, and sociological structuralism. Instead of resting analyses of law on arbitrary social constructions and authoritative fiat, Schmitt wanted to uncover the absolute ground of occidental law. This represents an initial step toward Schmitt's later Nomos theory of law, which attempts to repair the rupture between is and ought inherent in positivist theories of law. Though Hauriou's Institutionalism is ultimately a form of positivist legal theory – it is predicated on sociological observation – his emphasis on social percepts and phenomenological experience point, for Schmitt, in the right direction toward an unassailable foundation of law. Schmitt's use of Hauriou is therefore a jumping-off point for a return to Hölderlin and Hegel's Philosophie des Rechts in order to emphasize that the point at which a people encounters itself in history is the point at which law emerges2.

1 Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt, Verso 2000, page 196
2 Ibid, 197

Carl Schmitt on Juristic Thought

2008-12-05T18:56:00.000-08:00

The following is the first part of an essay I wrote on one of Schmitt's earlier papers on jurisprudence. The first part is a somewhat incomplete summary of Schmitt's position in the paper. The second part, which is not reproduced here, analyzes Schmitt's jurisprudence in the context of contemporary forms of analytical and natural-law jurisprudence. I am considering editing the second part extensively before posting it. Part 2 is available here.

Carl Schmitt's 1934 essay on The Three Types of Juristic Thought attempts to show the inadequacy of types of jurisprudence that approach the theory and practice of law without reference to what Schmitt calls “concrete orders”1. The basic aim of Schmitt's argument is to show that without the conceptual tools provided by concrete order thinking, jurisprudential theory and practice is impossible. This is not to say that forms of jurisprudence that do not explicitly employ concrete order thinking are not real approaches to law, but rather that their utility derives from their reliance on unexpressed “concrete suppositions” (46). By not acknowledging the reliance of law on concrete suppositions, these types of juristic thought will operate under descriptively incomplete definitions of law. In so doing, they will deform the structure and purpose of the law in such a way that will have explicit sociopolitical impact on the community or society that the law holds for. Schmitt's essay therefore has two theses; one explicit, the other subtle. The more explicit thesis, that concrete-order thinking is the superior approach to juristic thought, is less contentious and relatively agreeable with contemporary approaches to jurisprudence. However, the other thesis, that certain types of juristic thought represent an individualistic subversion of traditional social structures, is more tenuous because it relies on unjustified assumptions regarding the legitimacy of certain German institutions.

Every form of jurisprudence, for Schmitt, is characterized by one or more of three types of juristic thought: decisionism, normativism, and concrete-order thinking. Schmitt reveals his alliance with concrete-order thinking by discussing the limitations of the other two types. His reasoning is that purely formal or epistemological approaches to law falter on their inability to recognize that law is largely determined by, and presupposes, a specific institutional and historical context. Concrete-order thinking, on the other hand, conceptually describes law not simply as a set of formal rules or statutes posited by powerful officials, but also as a sociological and temporal phenomenon.

The peculiar label “concrete-order thinking” is a neologism coined by Schmitt to distinguish his use of Maurice Hauriou's Institutional Jurisprudence from the neo-Thomist Institutionalism of Georges Renard (90). Hauriou presented his institutional theory of jurisprudence as a reformulation of classical juristic thought, which, according to Hauriou, is characterized by a dualism of form and substance: law is not just legal rules and the decisions of individual officials, but also the social institutions and circumstances underlying the law2. For this reason, Hauriou chose to develop his theory of law from empirical investigation of contemporary and historical social institutions in Europe3. One of the results of this approach is that jurisprudence is understood not just in terms of normative concepts and theories of command, but also in terms of social percepts4. This means that Hauriou takes a phenomenological approach to law, so that in order for an entity to be labeled an institution, it must satisfy a set of phenomenological conditions, such as the common psychological acceptance of the legitimacy of the institution5. The accepted rules and regulations of the institution derive from a foundational, guiding idea, such as the drive for profit in a corporation or the ideal of charity in a hospital (Hauriou's example)6. Institutions establish their juridical legitimacy not merely through being posited by force or satisfying purely formal criteria, but rather by their “duration in peace”, which indicates psychological acceptance of the institution's guiding idea and the status quo7.

The “duration in peace” or what Schmitt refers to as the normal or stable situation is an essential element of concrete-order jurisprudence (66). From the recognition of this state of affairs arises conceptions of justice, reason and morality; and from this order emerge the juristic elements of the institutions, such as its regulative and functional parts. For Schmitt the law of a state rests on a notion of a normal situation and a normal concept of man, which entails belief in the legitimacy of other social institutions residing under the protection of that state (46). This delicate union of a plurality of institutions under the power and authority of the state can only be maintained properly by making constant reference to the substance of law in the practice of jurisprudence. Thus, proper use of the formal text of the law – proper adjudication and legislation – must recognize suprapersonal juridical entities called institutions, which are comprised of concrete men and women adhering to specific ideals and regulations internal to the institution. Schmitt's essay does not betray dogmatic adherence to Hauriou's theory, but it clearly adheres to the basic sociological and phenomenological insights into the origin and nature of law. Schmitt thus begins from the assumption that “every form of...life stands in direct, mutual relationship with the specific mode of thought and argumentation of legal life” (45). Which is to say, for example, that the “sense of justice, legal practice, and legal theory of a feudal community...differs from the societal thinking of a bourgeois legal system...” (Ibid).

In order to further explain and bolster this argument, Schmitt discusses rival approaches to jurisprudence. Schmitt begins his essay with a discussion of purely normative approaches to jurisprudence. Normativism, for Schmitt, reduces every concrete-order to rules of law, so that the normativist is something close to the mythical “formalist” of law that philosophers of law often ridicule. The normativist conceives of formal rules as quantifying over a heterogeneous set of specific concrete cases and individuals. Formal rules derive their consistency from other rules in a complex chain that must terminate in an ultimate or fundamental norm. For the normativist, then, x is a law if it issues in an “ought” statement consistent with the other set of “ought” statements labeled “the law”. Schmitt adduces a group of arguments against this position in order to show, first, its descriptive inadequacy, and second, its historical context and political implications.

Pure normativism, for Schmitt, cannot produce an approach to law sufficient for legal practice and theory because no effective formal set of norms can account for all possible situations or for the “changing will of men” (49). Furthermore, since the form of the law is inert – that is, incapable of “interpreting, applying, sanctioning or defining itself” - normativists are left with the problem of dealing with the organs that perform these offices (51). The normativist responds by identifying such organs as machines indiscriminately applying the formal norms of the law, but this merely brings us back to the initial objection, which invites the question of how a machine is to apply a norm in a situation where the machine has no instructions for which norm to apply. For Schmitt, if the normativist refers to the official's discretion, then he immediately moves into the sphere of order. This is the case because the concrete social, institutional and political suppositions of the official immediately become juridically relevant in the context of the interpretation or legislation that the official must effect for the novel situation. Schmitt argues that such a problematic understanding of law only makes sense in periods of formalization and codification, where the normativist can claim impersonality and objectivity in a political-polemical manner against the subjectivity of command or the suprapersonality of an institution. In other words, the normativist “plays off” the statute against concrete office and decision so that “the master of Lex subdues Rex” (50).

Schmitt's approach here is not one of complete skepticism, for he does believe that formal norms are integral to law. For Schmitt, however, the norm has a regulative function only within the framework of an order (49). Norms are generated by and for their specific order, but they do not constitute the sum total of the order's regulative functions, which also emanate dynamically from the institution's guiding idea in novel situations. Norms obviously have to abstract from the concrete order and situation, but in order to remain effective – to hold for specific cases – they must remain in a “completely defined sphere” (56). This means the norm is inviolable and relevant “only so far as the situation has not become completely abnormal and so long as the normal presupposed concrete type has not disappeared” (Ibid). Thus, Schmitt concludes that the concrete-order is not just a disregarded presupposition of the norm, but rather an “inherent, characteristic juristic feature of the norm's effectiveness and a normative determination of the norm itself” (Ibid).

In contrast with his treatment of normativism, Schmitt's discussion of decisionist jurisprudence is far less comprehensive. For Schmitt, Hobbes is the first pure manifestation of this sort of juristic thought, for although other thinkers, such as Tertullian, privileged decision over law and reason – voluntas over veritas – they presupposed the stability of some (Christian) order (60). For Hobbes, however, the sovereign is not justified by ordering ideals, but is simply he who decides. This means that Hobbes conceives of the sovereign decision as creating order from disorder, so that statutes emanate not from orders, but from pure, isolated decision (60). Schmitt seems to think that this approach is only coherent in a time of disorder and tumult, such as the era of creedal civil wars in Europe that emerged during the decline of the medieval-catholic concrete-order. In a stable order, pure decisionism makes formal law redundant and poses a set of problems regarding how, for instance, one is to define the sovereign, or how statutes are to be considered legitimate after the death of the sovereign etc. Schmitt therefore dismisses later decisionists like John Austin without argument, for it seems absurd to conclude without justification that, in the ordered stability of the 19th century, the social influences underlying sovereign decision are irrelevant to the discussion of law (86). For Schmitt, decisionism merely paved the way for normativism and codification, so that only after the Leviathan had devoured all “prestately” medieval orders, could “normativist natural law” emerge (74).

Schmitt's brief discussion of decisionism is intended as a transition into a discussion of what Schmitt calls legal positivism. For Schmitt, legal positivism is not a “type” like the others, but rather a product of 19th century politics that has persevered into the 20th century. Juristic positivism came to dominate not only theoretically, but also as “the juristic method” in France and Germany in the 19th century (64). As a product of the 19th century, legal positivism adopted by analogy the metaphysics of positivism propounded by the likes of Comte and Mach, and proceeded to elaborate a “science” of law predicated on a desire for calculable certainty. Schmitt states that legal positivism is a volatile amalgam of decisionism and normativism, and identifies, among others, Jeremy Bentham and Hans Kelsen as proponents. The problem with such an approach is that, since the positivist privileges calculability, he must expel non-calculable suppositions from law. The legal positivist therefore oscillates between decisionism and normativism depending on the situation in order to retain calculability. Retaining calculability comes at a high price, though, for the positivist must rely on circular reasoning, especially with regard to the question of the origin of law (68). Hans Kelsen demonstrates this tension when he states that some statute S is valid because the “decision came into being by the application of general norms of statutory or customary law that empowers the court to decide a concrete case in a certain manner”8. The decisionist element allows the positivist to “break off the question of the ultimate foundation of the prevailing norm in a definite [time and place]”, but in so doing, begs the question of why the decision was regarded as legitimate, legal and possible (70). Since the justification can't come from a formal norm (since norms are posited by decision) it must come from an institution or other kind of concrete order whose normal situation provides the stable environment for the formation of law.

Like pure normativism, legal positivism adopts a polemical project cloaked in the language of objectivity, which purports to expurgate everything “extra-legal” from the law (Ibid). For Schmitt, the only reason that legal positivism could flourish and exclude juridically significant entities like institutions was due to the stable socio-political environment of the latter part of the 19th century (65). Here Schmitt identifies an unacknowledged concrete supposition latent in legal positivist thought. Schmitt cites Bentham as a legal positivist who established the philosophical foundation of his jurisprudence on “individualistic legal-certainty” and the moral assumption that it would be wrong to “disappoint” the expectation and trust of bourgeois civil-society (66). Schmitt further argues that it was this assumption of the relative stability of British society that made “that fanatic of positivist legal certainty, Jeremy Bentham” react with indignation at any mention of the word “interpretation” (Ibid). Only when legal officials presuppose the legitimacy of bourgeois society can one be certain about the honest application of norms in the 19th century. This might seem like a trivial point, but in the context of Schmitt's essay, it is quite relevant. Though the law of the Weimar Republic contained a set of norms presupposing bourgeois institutions and society, the political and institutional forces at work, such as the various anti-liberal parties and their paramilitary orders, were radically incommensurable with the concrete suppositions of legal positivists like Kelsen, and therefore the Weimar constitution. These parties held legal office and legislated and adjudicated in the positive framework of Weimar law, but did so in a way that undermined the basic presuppositions of the Weimar constitution. In this case, neither positive reference to decision or norm could describe the function and purpose of the law, which had been transformed into a mechanism in the service of revolution. In other words, the formal text of the law, understood positively together with the decisions of the officials operating in Weimar, did not conduce to a scientific description of the law because the laws and decisions were used and subordinated to the service of the guiding ideas of anti-liberal institutions. Schmitt elaborates this point by analogy to an argument by Max Planck. Planck argued that pure positivism in the natural sciences was detrimental to science because of its reliance on sensation, which entailed the impossibility of distinguishing “deceptive and illusory sensory perceptions from others” (71). In a similar way, the legal positivist is incapable of distinguishing between legal practice, norms and statutes, and the subversive political activity of institutions not presupposed by the law, because the latter types of "legal behavior" can satisfy the conditions required by strictly functional legality, but not social legitimacy.

1 Carl Schmitt, On the Three Types of Juristic Thought, Trans: Joseph Bendersky. Praeger Publishers: Westport, CT. (2004). All citations from Schmitt's essay will be in-line citations.
2 Maurice Hauriou, “Classical Method and Juridical Positivism”, The French Institutionalists, Ed: Albert Broderick, Trans: Mary Welling, Harvard University Press: Cambridge, MA (1970). Page 128
3 Ibid, Preface, XVIL
4 Ibid, Introduction, 2
5 Ibid, 13
6 Ibid, Maurice Hauriou, “Theory of the Institution”, 101
7 Ibid, Maurice Hauriou, “Juridical Order in Political Matters”, 55
8 Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence,” 55 Harvard Law Review 44 (1941), page 63

A new Nomos

2008-11-26T18:10:00.000-08:00

The purpose of this blog is to investigate and critique the legal and political thought of the German jurist Carl Schmitt.