Carl Schmitt
Carl Schmitt's early career as an academic lawyer falls into the last years of the Wilhelmine Empire. (See for Schmitt's life and career: Bendersky 1983; Balakrishnan 2000; Mehring 2009.) But Schmitt wrote his most influential works, as a young professor of constitutional law in Bonn and later in Berlin, during the Weimar-period: Political Theology, presenting Schmitt's theory of sovereignty, appeared in 1922, to be followed in 1923 by The Crisis of Parliamentary Democracy, which attacked the legitimacy of parliamentary government. In 1927, Schmitt published the first version of his most famous work, The Concept of the Political, defending the view that all true politics is based on the distinction between friend and enemy. The culmination of Schmitt's work in the Weimar period, and arguably his greatest achievement, is the 1928 Constitutional Theory which systematically applied Schmitt's political theory to the interpretation of the Weimar constitution. During the political and constitutional crisis of the later Weimar Republic Schmitt published Legality and Legitimacy, a clear-sighted analysis of the breakdown of parliamentary government Germany, as well as The Guardian of the Constitution, which argued that the president as the head of the executive, and not a constitutional court, ought to be recognized as the guardian of the constitution. In these works from the later Weimar period, Schmitt's declared aim to defend the Weimar constitution is at times barely distinguishable from a call for constitutional revision towards a more authoritarian political framework (Dyzenhaus 1997, 70–85; Kennedy 2004, 154–78).
Though Schmitt had not been a supporter of National Socialism before Hitler came to power, he sided with the Nazis after 1933. Schmitt quickly obtained an influential position in the legal profession and came to be perceived as the ‘Crown Jurist’ of National Socialism. (Rüthers 1990; Mehring 2009, 304–436) He devoted himself, with undue enthusiasm, to such tasks as the defence of Hitler's extra-judicial killings of political opponents (PB 227–32) and the purging of German jurisprudence of Jewish influence (Gross 2007; Mehring 2009, 358–80). But Schmitt was ousted from his position of power within legal academia in 1936, after infighting with academic competitors who viewed Schmitt as a turncoat who had converted to Nazism only to advance his career. There is considerable debate about the causes of Schmitt's willingness to associate himself with the Nazis. Some authors point to Schmitt's strong ambition and his opportunistic character but deny ideological affinity (Bendersky 1983, 195–242; Schwab 1989). But a strong case has been made that Schmitt's anti-liberal jurisprudence, as well as his fervent anti-semitism, disposed him to support the Nazi regime (Dyzenhaus 1997, 85–101; Scheuerman 1999). Throughout the later Nazi period, Schmitt's work focused on questions of international law. The immediate motivation for this turn seems to have been the aim to justify Nazi-expansionism. But Schmitt was interested in the wider question of the foundations of international law, and he was convinced that the turn towards liberal cosmopolitanism in 20th century international law would undermine the conditions of stable and legitimate international legal order. Schmitt's theoretical work on the foundations of international law culminated in The Nomos of the Earth, written in the early 1940's, but not published before 1950. Due to his support for and involvement with the Nazi dictatorship, the obstinately unrepentant Schmitt was not allowed to return to an academic job after 1945 (Mehring 2009, 438–63). But he nevertheless remained an important figure in West Germany's conservative intellectual scene to his death in 1985 (van Laak 2002) and enjoyed a considerable degree of clandestine influence elsewhere (Scheuerman 1999, 183–251; Müller 2003).
Unsurprisingly, the significance and value of Schmitt's works
“The transformation of the community into an administrative state responsible for total social welfare leads to a paternal totality without a house-father when it fails to find any archy or cracy that is more than a mere nomos of distribution and production. I consider it to be a utopia when Friedrich Engels promises that one day all power of men over men will cease, that there will be only production and consumption with no problems, and that "things will govern themselves." This things-governing-themselves will make every archy and cracy superfluous , and demonstrate that mankind at last has found its formula, just as, according to Dostoyevsky, the bees found their formula in the beehive, because animal s, too, have their nomos. Most of those who swarm around a nomos basileus fail to notice that, in reality, they propagate just such a formula.”
“In the nomadic age, the shepherd (nomeus) was the typical symbol of rule. In Statesman, Plato distinguishes the shepherd from the statesman: the nemein of the shepherd is concerned with the nourishment (trophe) of his flock, and the shepherd is a kind of god in relation to the animals he herds. In contrast, the statesman does not stand as far above the people he governs as does the shepherd above his flock. Thus, the image of the shepherd is applicable only when an illustration of the relation of a god to human beings is intended. The statesman does not nourish; he only tends to, provides for, looks after, takes care of. The apparently materialistic viewpoint of nourishment is based more on the concept of a god than on the political viewpoint separated from him, which leads to secularization. The separation of economics and politics, of private and public law, still today considered by noted teachers of law to be an essential guarantee of freedom.”
“How did Kirchmann understand the worthlessness of jurisprudence ? The answer lies in the aphorism: "Three revisions by the legislator and whole libraries became wastepaper." With a sharp alteration this answer became a slogan:"A stroke of the legislator's pen and whole libraries became wastepaper." Another aphorism in the same vein made the point even more brusquely and less politely: "Positive law turns the jurist into a worm in rotten wood." Kirchmann meant that jurisprudence could never catch up with legislation. Thus our predicament becomes immediately obvious. What remains of a science reduced to annotating and interpreting constantly changing regulations issued by state agencies presumed to be in the best position to know and articulate their true intent?”
“The most brazen humiliation ever inflicted upon God and mankind, justifying all the curses of the synagogue, is to be found in the 'sive' of the formula Deus sive Natura.”
“The concept of humanity is an especially useful ideological instrument of imperialist expansion, and in its ethical-humanitarian form it is a specific vehicle of economic imperialism. Here one is reminded of a somewhat modified expression of Proudhon’s: whoever invokes humanity wants to cheat. To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.”
“All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development - in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent god became the omnipotent lawgiver - but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries.”
“Sovereign is he who decides on the exception.”
“Every actual democracy rests on the principle that not only are equals equal but unequals will not be treated equally. Democracy requires, therefore, first homogeneity and second—if the need arises elimination or eradication of heterogeneity.”
“The exception is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition.”