THE SHIELD OF ACHILLES (100 page)

A number of interesting conclusions may be drawn from Kelsen's views. First, the State simply drops out as a real entity. In Kelsen's words, the State “plays the same role as that of God in metaphysics and gave rise to the same problem, the reconciliation of sovereignty and legal limitation,” the problem that Jellinek sought to solve by autolimitation, the problem that theologians struggle with when they undertake to reconcile the existence of free will in the world where there is an omnipotent god. The State is a kind of ghost in the machinery of official acts, which correct analysis can eliminate the way analytical psychology eliminates the soul.

Second, the status of revolutionary states that challenge the international status quo is delegitimated, whereas otherwise the different moral and political qualities of states are treated relativistically. That is, each is derived from a broad legitimacy and differs from every other insofar as some fundamental, local social norm is being followed, the evaluation of which is beyond the scope of law.

Third, there is a strong implication that “political theology”—the focus on value-laden dogma and dialectic—unnecessarily makes the achievement of an harmonious legal order more difficult.

Fourth, the emphasis on the application, rather than the creation, of norms suggests a constitutional emphasis on the judiciary rather than on the executive or legislative.

In sum, Kelsen's is the jurisprudence of Versailles and Weimar, and as such it was at the epicenter of the political hurricane building in Germany in the 1920s and 1930s.

SCHMITT

Kelsen sought a jurisprudence that would support “a government of laws, not of men.” Lawfulness is the measure of legality. Such a jurisprudence is stifling, however, when it confronts a treaty that though lawfully ratified is believed to be the instrument of oppression, or when it encounters parliamentary maneuverings that though procedurally correct are the subject of universal contempt. Hans Linde has written:

Many Germans sought a jurisprudence that would locate the criteria of legality in the substantive content and real-world effects of the law.

This movement included Marxists, pragmatists, nationalists, sociologists, and others, who all agreed that law was first and foremost an element in human culture and therefore that it must be understood in its relation to the totality of the cultural milieu. Whereas the neo-Kantians, of whom Kelsen was the most prominent, held that the test of legality lay in the correspondence between the legal rule and the formal requirements of a legal proposition, these neo-Hegelians believed that legality was derived from a correspondence between the legal rule and the cultural needs and identity
of the society. It was the duty of the neo-Hegelians to expose the derivative nature of legalization, and to show how cultural institutions tended to serve certain interests. Such a view tended to legitimate change (as the needs of the culture changed) instead of reinforcing stasis.

The most forceful critic of Kelsen and the legal order of Versailles and Weimar was undoubtedly Carl Schmitt. His early reputation in the 1920s was built upon his savage criticism of liberal ideas and institutions. His “debunking of parliamentary government and his exposes of liberal hypocrisy remain influential,”
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particularly on the Left, although Schmitt himself was an ardent fascist. The enduring interest in this figure must be attributed partly to the Nietzschean glamour of his aphoristic prose, but also partly to his role as the chief juristic apologist for the Nazi regime. He was, Herbert Marcuse said, the most brilliant of all the Nazis, and this alone would lend a certain fascinating horror to his writing.

The Versailles settlement meant that Schmitt could not receive a post at the university where he had qualified as a law professor because Strasbourg was now a part of France.
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Instead he found a lectureship at the Business School in Munich and began a prolific career as a scholar and polemicist.
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In 1921, Schmitt moved to the University of Bonn and began the work for which he is best known today.

In 1922, his small booklet Political Theology
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appeared, which began with the famous sentence “Sovereign is he who decides on the state of exception.” This electrifying expression was strikingly unconventional because, unlike Jellinek's and Kelsen's, its definition of sovereignty addressed the power structure of the State instead of its legal framework. In a single sentence, it captures the essential idea of the “Führer,” a leader embodying sovereignty who can thus decide when the rules of law can be suspended, and it unites this idea with the most profound identity of the State. The State is not driven by law: rather law is the State's creature, to be used as the State determines. The following year he published
The Crisis of Parliamentary Democracy
,
³⁹
which attacked liberal parliamentarianism and drew a sharp distinction between democracy and representative government. Then came
The Concept of the Political
,
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which introduced the friend/enemy distinction as the basis for all politics, the idea for which Schmitt is best known.

In 1933 Schmitt accepted an offer from the University of Cologne. He had previously visited the most renowned member of that faculty, Kelsen, and asked his support for the appointment despite their controversies in the past. Kelsen had obliged. On March 23 of that year, the Reichstag adopted the Enabling Act, empowering Hitler to rule by decree. In April, Jews were banned from university posts; Schmitt was the only law professor at Cologne not to sign a petition on behalf of Kelsen, who was removed. On May 1, Schmitt became a member of the Nazi Party.

In November Schmitt became the head of the professors' branch of the Nazi legal organization; in June 1934 he was made editor-in-chief of the leading law journal. He was given a chair at his alma mater, the most prestigious German university, the Royal Friedrich-Wilhelms in Berlin.

After the war he was interrogated at Nuremberg, but was not prosecuted. He never held another university post.

Schmitt lived on in West Germany until his death in 1985. He maintained always that he had been the victim of the Nazis, forced into collaboration by the politicians who voted for the Enabling Act. He called his house. San Casciano, in an allusion to the place where Machiavelli spent his exile writing the
Discorsi
and the
Principe
. Schmitt described himself as a kind of Benito Cereno—the character in a Melville novel who, as captain of a slave ship taken over by slaves in a revolt, is forced to sail to Senegal. His peculiar behavior and unusual activities on board the ship are observed by the captain of an American boat who does not really appreciate what is going on; only later, when Cereno escapes to the American vessel, is everything explained.

Schmitt's jurisprudence reflects four notable ideas: (1) that the crisis in Weimar Germany can be traced to its constitutional order—liberal parliamentarianism—and that this order was imposed on Germany by the Versailles Conference, whose directorate attempted to compose a society of states with similar liberal parliamentary constitutional orders; (2) that the State defines itself by the distinction it draws between friend and enemy, and that it achieves unity and makes homogeneity possible (without which unity is impossible) through its reliance on this distinction;
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(3) that sovereignty is the power to determine when an emergency situation exists and thus when the legal rules that ordinarily govern should be suspended; (4) the relationship Schmitt draws between rule, order, and decision that is sometimes labeled “decisionism,” including his distinction between the commissarial and sovereign dictatorships—between, that is, a dictator who suspends the constitution in a case of emergency in order to protect the substance of the constitution, and the dictator whose intention is to produce an entirely new constitution by abrogating the present constitution.

Schmitt despised the Weimar regime and also the parliamentary democracies of which it was a copy, which had forced the Versailles agreement on Germany. All of these elements were interlocked in Schmitt's thought: that the parliamentary democracies represented only one version of a new constitutional order, the nation-state; that their victory in the war prompted the Germans to copy their constitutional form at Weimar; that the Peace Conference composed of the society of such states then ratified its consensus on this form, and imposed this form on the states of Europe and much of the world. For this reason, it is sometimes hard to see whether the basis of Schmitt's views lies in his hostility to Versailles or to Weimar.

According to Schmitt, parliamentarianism—which he called “government by discussion”—is an ineffectual and ultimately self-destructive guardian of the State, and thus was unable to protect German interests abroad or even to bring about stability at home. Moreover, parliamentarianism's claim to democracy is a fraudulent one; it is merely a ruse to allow government by an intellectual and liberal hierarchy. True democracy relies on the principle that equals are treated equally and, just as importantly, that unequals are not treated equally. Thus true democracy requires homogeneity—the assemblage of equals—and, sometimes, the eradication of heterogeneity.
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In Schmitt's view, a democracy can only maintain itself by protecting its homogeneity. But parliamentarianism, because it depends on a pluralistic coalition of interest groups and because it is too weak to take decisions, will never be able to secure homogeneity. Immigration of minority groups will be unimpeded, and thus increase the fragmentation of the society. In the weak parliament that results, special interests will be able to tie up legislative action and thus frustrate true democracy.

For Schmitt, parliamentarianism is that constitutional system that serves the bourgeois interests that support liberalism. First, it subordinates the monarchy and aristocracy and thereby elevates the middle class to a position of governance; at the same time, it co-opts democracy by channeling the power of the more numerous working class into stalemated parliamentary maneuvers and into the separated, and therefore powerless, branches of government. Second, parliamentarianism establishes a normative order that secures the structure of a market economy, restricting the taking of property by the government and using public power to enforce private agreements. Third, parliamentarianism enshrines civil liberties that are of the greatest value to the professional and merchant classes and thereby gives the imprimatur of legitimacy to the tools of political dominance of one class.

Every legal order, according to Schmitt, is the reflection of a concrete social and political order in which some individuals or groups rule over others; the unusual thing about liberal parliamentarianism is that it seeks to conceal the dominance of the bourgeoisie behind a façade of legal procedures. Parliaments are useful in order to let certain measures through when these benefit private interest groups (claiming that these reflect the will of the majority and therefore must become law) and to bottle others up when they would undermine the interests of the bourgeoisie. In either case the clash of values that lies at the heart of politics, the resolution of which is the purpose of politics, is buried or even denied in the larger allegiance to the law and to lawful procedures.

Kelsen and Schmitt agree that we live in an age of relativity, that is, an age without a single overarching, governing norm. Liberalism's solution to this vacuum of received authority is rationality. Let people believe what they wish; all people are rational and seek self-preservation; governments exist because it makes sense for them to exist from the point of view of the individual who seeks protection—no matter what other views he or she may have. By stripping the State of any particular legitimating myth, however, Schmitt thinks that liberalism perpetuates the greatest myth of all, the depersonalized, rational, mechanistic operation of the law. “Eventually, as part of the logic of the process, all that will matter is that the machinery functions, on the one condition that the subjects continue to enjoy protection so they can go about their own lives.”

By thus making civil society the field of competition for numberless private myths, the State sows the seeds of its own destruction because it has become marginal to the production of meaning, while private interest groups, each organized around its own myth, try to capture the machine of government. Meanwhile the lives of its citizens dissolve into consumerism, hedonism, and an attraction to cults.

The change in the constitutional role of the individual conscience, from something wholly marginal in Hobbes to something so central that it is the justification for the State's existence, is (according to Schmitt) the work of Jewish philosophers such as Spinoza and Moses Mendelssohn, who wished to cripple the state out of self-interest, and whose intellectual descendant is Hans Kelsen. This change leads to the gradual abolition of politics; indeed Schmitt takes liberals as attempting to reduce as far as possible the necessity of politics by establishing the supremacy of impersonal law. Such a world would lack the ambiance that can exist only when there is the possibility of sacrifice on behalf of a common ideal. This is, as Schmitt concluded in a lecture in 1929, “the loss of all that is noble and worthwhile; it is the loss of life itself.”
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For Schmitt as for modern-day communitarians, “[s]omething more than the economic hedonism of a crude liberal individualism, some idea of belonging to a well-defined community, is needed to impart worth to individual lives.”
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“[T]he value of life stems not from reasoning,” Schmitt wrote, “it emerges in a state of war where men inspirited by myths do battle.”

For Schmitt
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all concepts of law are fundamentally political. Indeed, “[e]very form of political life stands in an immediate, reciprocal structural relationship with its specific modality of legal argumentation and thought.”
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Because the standard modalities of liberal parliamentarian legal thought are not hierarchical—because the liberal claims to be neutral among the forms of legal argument—there is no rational way to resolve conflicts among them.
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Hence liberalism's claim to rely on rationality is either a fraud and masks the effort of the bourgeoisie to maximize their power, or an impossibility, which will necessarily give way to defeat by specific interest groups that can impose an agenda that ranks legal choices rationally according to how their interests are served. The judge, not the norm, decides; the politician, not the process, picks the judge; the legislator, not the law, determines the jurisdiction of the court; the constitutional authority, not the constitution, grants the power to legislate. Thus the liberal legal order is doomed to undermine itself because when it finally does act, it exposes the parliamentary order to be the acts of men, not of laws.