David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (New York: Oxford University Press, 1997)
On p. 9, Dyzenhaus points out that there is a clear tension between Hobbes’ individualism and his political absolutism. “The sovereign is legally and politically unconstrained, answerable for his action not to his subjects but only to Hobbes’ laws of nature. These laws are to provide the basis both for the sovereign’s judgments and for the legal subjects’ obligation of obedience to the sovereign. But the content of these natural laws has to be determined for legal subjects by the sovereign. There is, in short, no place in Hobbes’ conception of legal and political order for mechanisms on which legal subjects are inviolable. Indeed, Hobbes’ argument for excluding individual rights against the state is that the laws of nature or of morality are always already included or immanent in the positive law enacted by the sovereign.” (9) The last part of this quote addresses the debate between legal theorists H.L.A Hart and Ronald Dworkin regarding the core and penumbra of legality, initially explored on 6-7.
Dyzenhaus of course attempts to connect the two threads. “Since contemporary exponents of legal positivism are liberals, their attempt to resolve the tension is to deny that the law is ever in and of itself legitimate. Legitimate law is merely that law which happens to have the right moral content, where the standards of rightness are the standards of liberal morality.” (10) Dyzenhaus notes that the legal positivist view is an inversion of Hobbes. More importantly, the legitimacy of law, for legal positivists, is presupposed by liberal standards. “Hence Dworkin and contemporary legal positivists share one pivotal assumption: they assume that if the law is to be legitimate, it must meet the standards set by liberalism. And both assume that this liberal morality hovers above the positive law, a by and large universal and eternal set of standards that provide us with the criteria for evaluating particular and changing positive laws. Their conceptions differ only in that Dworkin claims that liberal standards are also already immanent in the law, waiting to be brought to the surface in principled justifications for judicial decisions.” (10) Hence, Dworkin’s approach to legitimate legality is inseparable to liberal assumptions, which ostensibly are inherent in law. Dworkin’s relationship to Hobbes’ thought is particularly interesting.
“Against Hobbes, Dworkin claims that there is more to law than positive law, but with Hobbes he claims that sound moral standards are already immanent in the positive law. Against Hobbes, contemporary positivists claim that there is no moral obligation to obey positive law, but with Hobbes they claim that law properly so called is positive law. Nihilists sets off one pole against the other to support a thesis that order is just a veneer which attempts to hide general indeterminacy and the struggle of the powerful to control the law.” (10) This sets up a brief exploration of Weber. The central premise of his section on Weber explicates the central aspects of Weber, but ultimately leading to a discussion of Schmitt and Kelsen. The need for a strong President, as prescribed by Weber (13), and the measures constructed to ensure this was eventually exploited to subvert and destroy Parliament (14). The incomplete nature of Weber’s work on the two ethics, of responsibility and conviction, as Dyzenhaus points out, may have lead to such exploitations (12-13). Dyzenhaus sets up Schmitt (conviction) and Kelsen (responsibility) as adopting each of these ethics, to the exclusion of the other. “Kelsen developed a theory of law as a system of positive law which contains the political power of the state. He thus expresses the idea of an ethics of responsibility that somehow floats free from any substantive political aims. Schmitt, by contrast argues for an ethic of pure conviction and executive will, unconstrained by any rules.” (14) Dyzenhaus then appears to link Schmitt to the neo-Romantic impulses of Volk. “In particular, he will use the technological forces that Weber thought largely constructed the bars of the cage to shatter the cage and construct the idea of the Volk, ‘the people’, which can impart meaning to the lives of individuals. And, according to Schmitt, the idea of the Volk has substance only when it is understood to refer to an utterly homogenous group.” (14) However, these ideas are differentiated from so-called neo-Romantic yearnings, largely due to its focus on modern technology. “In putting forth these ideas, Schmitt joined a larger group of German intellectuals who have aptly been called ‘reactionary modernists’. For them, the loss of the German monarchy introduced the same kind of state of emergency into German society that Hobbes had responded to in his day. With Hobbes, they thought that traditional modes of legitimacy could not be revived to deal with the emergency. Unlike Hobbes, they could look back to some centuries of an attempt to find an alternative in a rational grounding for political power.” (14)
Much of what Dyzenhaus says about Schmitt is, as he informs his reader, exposition. But the point he arrives to links the state of emergency in the Weimar to Hart’s liberal positivist penumbra. “On Schmitt’s account, the Weimar Constitution was just another liberal attempt to tame and constrain the real irrational sources of political power in chains of legality, but it cannot help but recognize those sources and thus prepares the way for its own destruction. The state of emergency provision, in other words, was the constitutional recognition of the general state of emergency in society to which the Weimar Constitution was a necessarily botched and contradictory response.” (15) “Hart’s penumbra,” Dyzenhaus continues, “is a kind of mini state of emergency for a positivist theory of law. It is an emergency because, by positivist stipulation, it is not resolvable by law. But it is mini because it is containable: order can be secured as long as the core of law is large enough. But if the boundary between core and penumbra cannot be sharply drawn, the core seems to disappear; and then for positivists the state of emergency becomes uncontainable and generally pervasive. Dworkin’s principled solution may then seem no solution at all if, as seems to be the case, there is little consensus as to the principles and their content.” (15) He concludes the section by stating the purpose of the next. “As I will show, an exploration of aspects of the Weimar debate on legal and political philosophy gives us both a better understanding of the current state of impasse in political and legal philosophy and a basis for a productive route forward. But before embarking on this task, I will provide a little more historical context.” (17) What is most important about his section on the short history of the Weimar is his interpretation of what led to its demise. “My position,” Dyzenhaus writes, “is firmly with those who regard the destruction of Weimar as the direct and deliberate result of the efforts by anti-democrats to subvert democratic institutions at every opportunity.” (17) On page 19, Dyzenhaus outlines the details of the Weimar constitution: the role of the President, how he is elected, the powers he possessed both domestically and in regards to security, the process behind the dissolution of the Reichstag, and of course Article 48, which gave the President “vaguely defined power to ‘take measures’, including armed force, to intervene in the affairs of the Reich or of a particular Land in order to restore public safety and order” (19). But Dyzenhaus notes that paragraph 3 (a provision that required the President to inform the Reichstag of his measures and that the Reichstag could demand the measures be suspended), paragraph 4 (which permitted the Reichstag to ‘determine the details’ of further action in terms of Article 48), and that orders of this sort required the countersignature of the Chancellor placed limitations of the power of the President (19 - 20). He notes the obvious weakness in these limitations. “The President could get rid of the supervision of the Reichstag over his measures taken in terms of Article 48 by continual use of his authority to dissolve that body.” (20) On pages 20-21, Dyzenhaus continues to list the key aspects of the Constitution; Article 76 protects the Constitution itself, and the second half of the Constitution listed the fundamental rights and duties of the German people. The socio-economic conditions of a war-worn Germany under the burden of Versailles, and a political climate inhabited by far-left and far-right elements were less than optimal circumstances for the Constitution to come into being (21). The legend of the ‘shameful peace’ perpetuated by radical political elements on both sides of the spectrum is quickly debunked by Dyzenhaus (21-22). However, as he notes, the legend, as baseless as it may be, still “managed to hold German democrats responsible for all of the troubles of Weimar at the same time as relieving of all blame the right-wing forces clustered around the military” (22).
Dyzenhaus revisits a familiar point in regards to the rise of the Nazis; namely that Hitler recognized the usefulness of manipulating nationalist fervour for purposes of dissimulation and propaganda, in pursuing power through constitutional methods. Once in power, the form of the state can be remoulded to fit Nazi ideas (23). Or as Dyzenhaus succinctly puts it, “he would use more or less legal means to overthrow the legal order” (23). Pages 23-27 outline the usual historical account of the rise of Hitler to power. “The Reichstag fire of 27 February 1933 gave Hitler the pretext to act decisively.” (27) The Reichstag fire, as you recall, provided the emergency for Hitler to annihilate not only the Communists but other elements the Nazis deemed obstacles to their path of power. Hindenberg signed the decree of 28 February “which gave Hitler a completely free hand to deal with his enemies, and which announced the reign of arbitrary, unconstrained terror that would persist until the end of the war” (27). The Enabling Act of 23 March 1933 “formally handed constitutional and legislative power to Hitler so that from then on his seizure of complete power was only a matter of taking the necessary steps”. Acts of treachery and murder could now be retrospectively declared legal by decree of his Cabinet (28). Pages 28-32 outline the events of the 20 July 1932 coup d’etat, which resulted in the displacement of the Prussian government. It serves to reinforce the claim that anti-democratic forces did indeed conspire to destabilize the country and install authoritarian measures. The terror and brutality of the Nazis and their paramilitary elements left the German government to bow to open acts of political terror (32). The constitutional appeal against Papen’s assumption of the Prussian commissionership was rejected, and as Dyzenhaus points out, had the court stood up against the unconstitutional coup, the “cloak of legality, under which Papen and Schleicher had attempted to establish government by decree” would have been torn apart (32).
In the final section 1.4 of Chapter 1, Dyzenhaus provides the full text of Article 48 to analyze the court decision (33). His analysis posits that Papen justifies the coup mainly on the first paragraph of Article 48, while never justifying how public safety and order of the Reich was endangered in Prussia, which are the grounds for the suspension of fundamental rights. Dyzenhaus articulates his central point very lucidly. “In short, although Prussia did stand on the brink of civil war between the Nazis and the communists, Papen’s Cabinet had done its best to push Prussia to that brink.” (34) The political motivation behind these machinations were simple, to cobble together a rightist alliance between the Nazi Party and German Nationalists to control the Prussian government. “Such an alliance,” writes Dyzenhaus, “subject to the control by the barons of the right, would of course be one in line with what the presidential Cabinet wanted to achieve. But the achievement, far from upholding the Constitution of the Reich, was precisely Gleichschaltung, that is to say bringing Prussia into line by total, elimination of its democratic institutions.” (34) “Hitler’s process of Gleichschaltung,” he adds, “had more than a clear precedent in the coup of 20 July.” (34) The court reasoned that “the President was entitled to take the measures he had in fact taken – assuming control of not only the Prussian police but also the entire machinery of state in Prussia”, citing that Article 48.2 had indeed been invoked during “a time of manifest breakdown in public safety and order” (35). In examining the details of the decision, it becomes obvious that this is the point of discussion for the rest of the book. “We still have to deal with the question of the merits of the decision. There are three possible answers to that question, each of which is given by the legal philosophy of one of my three figures, Schmitt, Kelsen, and Heller. For Schmitt, the decision is correct but confused because it avoids a full acknowledgement of its radical basis. For Kelsen, the decision is confused in part because of weaknesses in the Constitution…The answer is ultimately a political one (for Kelsen) and to be judged by the criteria of politics not law. For Heller, the decision is fundamentally wrong and what confusion it exhibits shows that the judges failed utterly in their duty to uphold the Constitution, but tried to cover this up by offering Prussia a form of legal protection which lacked entirely the democratic substance which the legal form was meant to protect.” (37)
Chapter Two starts off with a list of the themes apparent in Schmitt’s critique of liberalism found in modern political philosophy, many of which are familiar (38). Liberalism conceals its politics, according to Schmitt; a politics of getting rid of politics. “Liberalism’s stance of neutrality, far from being neutral between different conceptions of good, would undermine all those in conflict with it, thus bringing about its own kind of homogeneity – the homogeneity of a society composed entirely of market-oriented egoistic and hedonistic human beings, that is to say, the liberal individuals.” (39) Schmitt, as Dyzenhaus notes, was never clear about the point of his critiques, nor indeed about the precise nature of his target (39). This leaves three interpretative possibilities according to Dyzenhaus. The first interpretation is that Schmitt urged liberals to grasp “the political component of legal positivism and its particular expression in the Weimar Constitution” (40). “Only if they did so, would they be able to defend liberal legal order against the forces of extreme left and right.” (40) This is an apologist account, as he rightly points out. The second interpretation is that Schmitt holds liberalism and legal positivism as being, or becoming, inherently contradictory (40). “For liberalism to wake up to this fact, to its contradictory politics, would be self-destructive: the moment of awakening is the realization of the impossibility of liberalism.” (40) This account, adds Dyzenhaus, can also form part of an apologist account. The third interpretation, that “liberalism is Schmitt’s main target and his polemics against it are designed to prepare the way for a decision for a new sovereign order that will thwart liberalism’s struggle for dominance”, appears to be most congruent to Schmitt’s own concept of the political, as we shall see (40). This third interpretation most avidly implicates Schmitt surrender to the logic of his own arguments, insofar that the Nazis fulfilled his criteria of a sovereign order that can displace liberalism. At the bottom of page 40, he cites Schmitt’s Concept of the Political as substantiating this interpretation. “It is on this distinction (between friend and enemy) that his philosophy of law and politics is founded and he deploys it to bind together the main elements of that philosophy – decision, sovereignty, and situation.” (40) The first part of 41 outlines the premise of the friend-enemy distinction, no different from the conventional accounts of it. Dyzenhaus admits that Schmitt’s thought is “deliberately unsystematic”. “Since for him a systematic development of thought presupposes a commitment to a set of beliefs that are possible only against the background of substantive homogeneity, and since such homogeneity was not in his view in existence during Weimar, his arguments must be, by his own criteria, unsystematic.” (41) He concludes that the incongruence of theory and practice applies to Schmitt’s own unwillingness to provide decisive clarification of his conclusions (41). Dyzenhaus provides a sketch of what he aims to do in the chapter on page 42. Pages 42-51, as Dyzenhaus promised, deliver the basis of Schmitt’s thought primarily through the texts of Political Theology and The Concept of the Political. Dyzenhaus leaves the reader with three pressing questions at the end of the section.
“First, there is Schmitt’s sense that even if liberalism wins the day this will not be political victory properly so called. It will not, that is, amount to a decision, but to an act of self-subjection to an alien people. But on what grounds did he disqualify the decision for liberalism given that it seems that there are no criteria over and above those that informed the making of any particular decision?” (51) This first question address basically asks whether decision, as conceived by Schmitt, is absolutely incompatible with liberalism.
“The second question arises because Schmitt maintained that politics, on his understanding of authentic or genuine politics, is necessary in order to establish the normality of legal order. But, given Schmitt’s apocalyptic description of politics, how is that description reconcilable with an allegiance to the normal?” (51) This question seeks to clarify the grounds that link the norm with the exception. If politics is derived from the friend-enemy distinction, is there any space for the norms?
“Third and most pressing is the question of what the criteria for authenticity, genuineness, and so on are. This question arises out of the ambiguity I identified in Schmitt’s definition of sovereignty. Most of the time, he seemed to claim that these criteria cannot be determined other than existentially, that is, in the very struggle about what their content is. But at other crucial moments, most notably in his stipulative exclusions of liberal content, he did seem to want to give some advance, albeit negative, specification of authenticity or genuineness.” (51) This question appears to be most pertinent to any discussion of democracy.
From 51-56, Dyzenhaus provides exposition of Schmitt’s Constitutional Theory. The work centres on questions regarding identity and representation, at least from what Dyzenhaus touches upon. On page 56, Schmitt, Dyzenhaus argues, posits the ideal of equality must be distinguished from a liberal universal one, because it is inherently political. “When there is no such homogeneity, there are various peaceful methods of creating it, for example, separation or assimilation. ‘Other methods are quicker and more forcible: abolition of the alien component by repression, resettlement of heterogeneous populations and other similar methods.’ The methods required to create homogeneity demonstrate for Schmitt the antithesis between democracy and the liberal ideal of freedom and equality of all individuals with each other. ‘A democratic state would be robbed of the substance of its public life and public law by a systematic recognition of universal individual equality.’” (56) For Schmitt, the central concept of a democracy is the people and not humanity. The people by and large is a particular concept, specifically defined. Humanity, on the other hand, is a universalized concept, and Schmitt, following the logic of his friend-enemy distinction, considers this all-inclusive concept apolitical precisely because it circumvents the need for decision. But Dyzenhaus summarizes the section very succinctly.
“So Schmitt’s theory of constitutional democracy, as he himself made explicit, rests on a series of equivalences. The state is the political unit of the people, the representation of their political identity, which means their substantive homogeneity. And as we know from Concept of the Political, the authentically political decision is on which brings about substantive homogeneity. Only such a decision can make the distinction between friend and enemy. The loss of the political is thus one and the same thing as the loss of the friend/enemy distinction. And that loss, Schmitt supposed, is more than to be regretted. It is the loss of all that is noble and worthwhile. Thus, for Schmitt dictatorship and democracy are hardly antithetical; rather, they are the two sides of the same coin.” (57) He states this point even more clearly on the next page. “As Schmitt told us in Political Theology, what is important in the sense of creating value is not the content of the sovereign decision that is made, but that a sovereign decision is made. Authority and not truth makes law” (57) Autoritas, non veritas facit legem – refer to page 52 of Political Theology.
“His final understanding of liberalism’s metaphysical system was, I think, that liberalism’s metaphysics resides in its aspiration to be or to appear to be without metaphysical commitments. In politics, the complex structure of a system which wishes to appear as such manifests itself in the politics of appearing to be a- or even anti-political. In particular, liberalism in order to become and maintain itself as the dominant ideology, had both to establish itself publicly and to find some means of maintaining its public presence.” (58) The development of liberalism, in its ‘nascent’ stages, was a reaction to monarchy, taking steps in curbing sovereign power (59). But the need to assert itself publicly, liberalism reveals its own inherent contradictions. This, argues Dyzenhaus, is the key to Schmitt’s understanding of liberalism. “But a public presence, on Schmitt’s view, is in contradiction with liberalism’s allegiance to the primacy of private order. It is not that liberalism is in itself contradictory, but that, in the attempt to actualize itself, to assert and maintain its control over the public, it becomes contradictory.” (58-59) Page 59, once again, explicates how liberalism’s political struggles led it into two different directions. First is the requirement that any exercise of state power be in the name of the law or authorized by statute (59). In other words, this is the emergence of the rule of law. Second is the extension and amplification of the parliamentary powers and jurisdiction until the monarch is substantively excluded from the legislative process (59). In other words, this is a depersonalization of sovereignty. Although Schmitt thought that liberalism only in the course of its development had “as intense of a political existence as it is capable of having” (59), the two directions that stemmed its own political struggle obscures the presence of the decision. The conflation of democracy with the Rechtsstaat leads to confusion. “The peculiar feat of liberalism is to replace any substantive idea of the will of the people with a formal notion of the will of Parliament. The statutes produced by the legislative assemblies of the Rechtsstaat are henceforth assumed to represent the will of the people. Schmitt thought that from his vantage point in history one could see how the conflation of the Rechtsstaat with democracy led to the confused situation of his time.” (60)
To put it simply, Schmitt contends that liberalism merely displaces monarchical absolutism with a parliamentary absolutism. “In accordance with his general assumption that all concepts of law are fundamentally political, he seemed at times to want to disinter the politics of the liberal concept of law from this confusion. He seemed to want to show that the liberal commitment to form is based on something material or substantive. For a completely formal concept of statute, one that says that all there is to statue is that which is enacted by the legislature in accordance with the appropriate procedures, would turn the rule of law into an absolutism of the legislature. In that case, Schmitt, said, the whole of the bourgeois battle against monarchical absolutism would have been useless: it would have resulted in the many-headed absolutism of the actual parliamentary majority.” (60) This section is key to understanding the contradiction that arises in liberalism, mentioned earlier on. From 60-62, Dyzenhaus looks at Schmitt’s discussion of fundamental individual rights in relation to the Rechtsstaat. On page 61, any statutory encroachment of “pre-political” fundamental rights is regarded as exceptional. “The pre-political and unpolitical nature of fundamental rights means that they are absolute in the sense that their guarantee is not dependent on law, nor do they get their content from law. A statutory encroachment on fundamental rights is, hence, regarded as exceptional, something to be limited by the criteria of form which a statute has to meet to be considered valid.” (61) Dyzenhaus refers the reader to Article 114 of the Weimar Constitution to substantiate this point.
“According to Schmitt, the two main principles around which liberal parliamentarianism are built are the principle of openness or publicity and the principle of the division or separation of powers.” (62) Both principles are methods of taming absolutist power, as Dyzenhaus points out (62). But Schmitt contends that both principles work against each other. “The principle of division of powers weakens the state by dispersing its power with the largest concentration of power residing in the legislature. The principle of publicity seeks to do away with partiality but it has to accept rules of closure for debate, which means that decisions are taken either by simple majorities or, in some special cases, by enhanced majorities. And the interests which form a majority cannot be said to represent a public citizenry, since all that they in fact represent is themselves in temporary alliance with others. A state weakened by the division of powers is further weakened by the conflict between interest groups over its most important institution.” (63) On 63-64, Dyzenhaus notes Schmitt’s critique of the secret ballot, central means of majority decision-making. It is not too surprising to see that Schmitt does not hold this type of decision-making in high regard. “So Schmitt’s argument, given his premise that democracy requires substantive homogeneity, is that the majority decision-making that is the result of the liberal individualism of the secret ballot can never amount to an expression of the people’s will or decision…for the liberal attempt to relativize power through the division of power is antithetical to democracy.” (64) Of course, this should not surprise anyone who has had even a cursory look at Schmitt’s work. Schmitt saw that this division of power would inevitably be exploited by interest groups and coalitions of interest groups dominating the legislative bodies. In addition to the exploitation of the process, Schmitt adds that the particular liberties ascertained would also be used to exert influence. “And they will use the particular liberties that are fundamental to liberalism – personal liberty, expression, association and assembly – to exert their influence, which might well be in the interests of groups whose aims are antithetical to liberalism.” This reinforces the dilemma facing liberalism; namely, that to publicly make itself present, it invariably subverts the liberties it holds integral to itself. On pages 64 and 65, Dyzenhaus discuss two aspects of liberalism: neutrality and self-subverting vulnerability. Schmitt argues that liberal individualism requires a neutral state, “in the sense that the state is neutral in regard to all religions and creeds” (64). The principle that ‘all conceivable opinions, tendencies and movements have an unconditionally equal opportunity to establish a [parliamentary majority]’ is self-subverting (65). “In its attempt to create a neutrality that shuns the distinction between friend and enemy, it subjects itself to any enemy that can command a majority in Parliament. It thus subjects itself to the forces of civil society since the laws enacted by that majority are held to require unconditional allegiance, the renunciation of any right of resistance, because of liberalism’s self-subjection to the parliamentary legislative state.” (65) This is speaking about passivity inherent in liberalism, i.e., the traditional concession speech by the loser of an election, “the country must move on…and so on”.
Schmitt, however, links both of these aspects of liberalism to legal positivism, what he considered the official legal and political philosophy of liberalism. “Legal positivism is thus the ideology developed by liberals both to justify their struggle against the kind and to sustain their political domination thereafter.” (65) For Schmitt, normativism and institutionalism are the two types of legal thought other than positivism. Dyzenhaus notes that after 1934, Schmitt employs the term ‘the idea of concrete order thought’ in place of institutionalism (65). On page 66, Dyzenhaus explicates how Schmitt differentiates between normativism and ‘the idea of concrete order’. Schmitt believes that legal positivism has elements of both normativism and decisionism (66-67) “The decisionist element of legal positivism comes about then because the norm itself is the product of a decision and then, as we have already seen, for political reasons, a decision for the legislature as the incumbent of legal power. This leads, according to Schmitt, to the peculiar position of positivism which makes it a mixed and time-bound mode of thought.” (67) Although it is unclear how the decisionist proponent of legal positivism can be connected to a critique of liberal democratic order, Dyzenhaus provides some clarification.
“Although Schmitt did not make this explicit, it seems that for him the decisionist component of legal positivism has two aspects to it. On the one hand, there was the historical political decision on the part of the bourgeoisie to form an alliance with the democratic forces whose result would be the concentration of legislative power in Parliament. And then there is the continuing and necessary moment of decision, which is supposed to be both preserved and exhausted in the actual decisions made by the Parliament. That is why the legal positivist is put in the impossible position of both subjecting himself unconditionally to Parliament and requiring of Parliament that it itself be subject to law.” (68) Hence, there is another layer to the dilemma facing liberalism. In addition to the ‘impossible position’ that comes about because of this, the decision, as Schmitt conceives of it, is compromised beyond efficacy. “The decisionism that is preserved in the reservation of legislative power to Parliament is in a sense not a genuine decisionism at all. Rather, it is a decision to avoid decisions, an avoidance and postponing of decision, that is characteristic of liberal politics but which also renders it vulnerable.” (68) All of this sounds quite familiar, because it returns to the previous point; namely that Schmitt sees this ‘decision to avoid decision’ as being a fundamental problem with liberalism. In order to assert itself, liberalism invariably subverts the grounds upon which it is based. On the bottom of page 68, Dyzenhaus provides a summation of Schmitt’s point so far leading back to the central thesis. “However, in using parliamentarianism as the public means of establishing itself, liberalism fails to achieve its individualistic aims. Rather, it subjects the individual to the forces of civil society. For these forces exploit the liberties which liberalism guaranteed in order to win power for itself. Liberalism has to make the transition from private to public in its bid to privilege the private, but it cannot do so without subverting itself.” (69)
At the bottom of page 69, Dyzenhaus notes that Schmitt’s look at concrete orders is also a critique of the secularization of theologies. “Schmitt took it to follow that liberalism is also a concrete order where one group, the bourgeoisie, attempts to rule over all others. And in line with his view of the ultimate concreteness of all order, we have seen his claim that all political doctrines are absolutist in the sense that they are secularized theologies in a pluriverse of each ideologies, each seeking to get control of the whole and each claiming that right is on its side.” (69-70) Dyzenhaus attempts to frame or re-frame liberalism’s dilemma. “In short, then, liberalism’s dilemma is between substance, on the one hand, and substancelessness or neutrality, on the other. If its political/legal order, the liberal democratic order, is threatened through use of its own legal mechanisms, it asks judges to withstand the threat,” Dyzenhaus writes (70). He continues later on, “Hence the dilemma is not resolvable for liberalism – it is doomed constantly to recreate the dilemma. Its vacillation between the poles of substance and substancelessness or neutrality is reflected in legal theory in a vacillation between positivist accounts of law and those which attempt to import a normative substance into the very idea of law.” (70)
Section 2.4 entitled “The Guardian of the Constitution?” (70-86) debunks the various apologetic accounts of Schmitt’s implications with Nazism. As Dyzenhaus illustrates near the end of the section, Schmitt’s actions were clearly an extension of his thought prior to 1933. He does this by unfolding the clear continuities between Schmitt’s work prior to 1933 and the works produced during the latter’s “productive phase” while intimate with the Nazi regime. The most notorious of these works, as Dyzenhaus notes, is an essay entitled, ‘Der Führer schutzt das Recht’ [The Führer guards the law], in which Schmitt praised Hitler’s retrospective validation of the political murders of 1933 (83). Dyzenhaus explains that Hitler’s actions reflected those required of a leader within Schmitt’s logic. “Hitler had made the distinction between friend and enemy, as proved in the murders, had established himself decisively as the supreme source and judge of all right and law, and had done away with the liberal and parliamentary fictions of Weimar. Most important of all, he had through his personal representation of the German people as a homogenous unit, brought about the democratic identity which Schmitt prized above all else.” (83) Of course, these are the themes that Dyzenhaus explored throughout the chapter. The thematic of the artist, of the bricoleur strangely is implicit in Schmitt’s own praise of Hitler, as Dyzenhaus explains, “Moreover, there could be no doubt about the popular acclaim, the resounding ‘yes’, that greeted Hitler’s vision – he had brought something into being, made a presence of an absence.” (83-84) Or prior to this on p.81, “Rather the decision would be a moment of representation that made an absence into a presence – that brought the unity of a German people, whose existence until that moment was only immanent, into being. It would be a decision that would be truly democratic on condition that it met with the only test for legitimacy currently available, that is, the acclamation of the German people through a plebiscite.” (81) Hence the election of the President commissioned “an authority that knew no legal boundaries other than those that came out of the political decisive decision of the German people” (80). Refer to the discussion of sovereign and commissarial dictatorship on pages 75-80 for context on these differences. The ‘genius’ of Hitler, according to Schmitt, was this ability to bring into presence absence, a variant on the task of an artist. The violent exclusions necessary for the creation of a homogenous identity, however, is justified by the rigorous logic of Schmitt’s argument. “Hitler’s vision was of course of a German identity that excluded much of the German people, including liberals, communists, socialists, homosexuals, and Jews. But that, as we have seen Schmitt say, is no more than the radical consequence of democratic homogeneity.” (84) The distinction between friend and enemy demands that such radical exclusions be made, because, as Schmitt’s critique of liberalism indicates, the universal category of humanity is weak and flaccid compared to democratic citizenry. Hence, the category of citizen, part of democratic homogeneity, is that requires exclusion by its very definition. Schmitt, never one to ‘lay his cards out’, appears to be a duplicitous character. He is, however, not a mere political opportunist. And as Dyzenhaus points out, his celebration of Nazism is indicative of a deeper tension within Schmitt’s political and legal thought (85). The discussion turns to an examination of Schmitt’s work on Hobbes’ Leviathan.
“Thus Schmitt’s task was to ask whether Hobbes’s absolutism can be rescued from his individualism.” (90) In embarking on this task, Schmitt focuses on two related thought also antithetical places in Hobbes’s construction of the state where individualism manifests itself (90). “First, there is Hobbes’ emphasis on state structures that facilitate individual calculation of the consequences of action and secondly there is his distinction between faith and confession.” (90) It is Schmitt’s contention that “Hobbes failed to establish a truly political mode of thought”, thus preventing the sovereign from making the friend/enemy distinction (93). “Absolutism has to be rescued from Hobbes’s individualism since it is individualism that prevents one making the friend/enemy distinction.” (93) “Like Schmitt, Hobbes viewed the individual as by nature evil and anti-social so that education is not the means to self-mastery but just one way of subduing individuality.” (94)
“Politics, for him (Schmitt), was a matter of elite determination with the aim of eliminating all internal enemies. The glory of politics can then be cultivated in the utter homogeneity of the nation state ready to do battle with other nation states.” (95) The category of the enemy, for politics to exist, must be defined on the outside? “Schmitt was torn between his craving for the vitality of the political, on his understanding of the political, and his desire for stability and order at any cost. He criticized liberalism both for sapping politics (and thus life itself) of vitality and for destabilizing order through its relativism in regard to questions of fundamental value.” (97) Section 2.6 concludes the chapter with a very brief examination of Schmitt’s anti-Semitism. The point Dyzenhaus conveys is that in order to extract anything of value from Schmitt’s scholarship, his anti-Semitism must be dealt with. “Schmitt’s friend/enemy distinction is tied to his idea of substantive homogeneity, and was produced in a context where, as Schwab recognizes, these ideas had to end in the Jews being excluded from German society in some radical way. Then as now, Schmitt’s categories lead inexorably to a politics that rests either on a blind hatred of the other, or, perhaps even worse, to a cynical instrumentalization and manipulation of the fear of the other in order to blame that other, whoever it might be, for all society’s social and political problems.” (101)
Dyzenhaus of course attempts to connect the two threads. “Since contemporary exponents of legal positivism are liberals, their attempt to resolve the tension is to deny that the law is ever in and of itself legitimate. Legitimate law is merely that law which happens to have the right moral content, where the standards of rightness are the standards of liberal morality.” (10) Dyzenhaus notes that the legal positivist view is an inversion of Hobbes. More importantly, the legitimacy of law, for legal positivists, is presupposed by liberal standards. “Hence Dworkin and contemporary legal positivists share one pivotal assumption: they assume that if the law is to be legitimate, it must meet the standards set by liberalism. And both assume that this liberal morality hovers above the positive law, a by and large universal and eternal set of standards that provide us with the criteria for evaluating particular and changing positive laws. Their conceptions differ only in that Dworkin claims that liberal standards are also already immanent in the law, waiting to be brought to the surface in principled justifications for judicial decisions.” (10) Hence, Dworkin’s approach to legitimate legality is inseparable to liberal assumptions, which ostensibly are inherent in law. Dworkin’s relationship to Hobbes’ thought is particularly interesting.
“Against Hobbes, Dworkin claims that there is more to law than positive law, but with Hobbes he claims that sound moral standards are already immanent in the positive law. Against Hobbes, contemporary positivists claim that there is no moral obligation to obey positive law, but with Hobbes they claim that law properly so called is positive law. Nihilists sets off one pole against the other to support a thesis that order is just a veneer which attempts to hide general indeterminacy and the struggle of the powerful to control the law.” (10) This sets up a brief exploration of Weber. The central premise of his section on Weber explicates the central aspects of Weber, but ultimately leading to a discussion of Schmitt and Kelsen. The need for a strong President, as prescribed by Weber (13), and the measures constructed to ensure this was eventually exploited to subvert and destroy Parliament (14). The incomplete nature of Weber’s work on the two ethics, of responsibility and conviction, as Dyzenhaus points out, may have lead to such exploitations (12-13). Dyzenhaus sets up Schmitt (conviction) and Kelsen (responsibility) as adopting each of these ethics, to the exclusion of the other. “Kelsen developed a theory of law as a system of positive law which contains the political power of the state. He thus expresses the idea of an ethics of responsibility that somehow floats free from any substantive political aims. Schmitt, by contrast argues for an ethic of pure conviction and executive will, unconstrained by any rules.” (14) Dyzenhaus then appears to link Schmitt to the neo-Romantic impulses of Volk. “In particular, he will use the technological forces that Weber thought largely constructed the bars of the cage to shatter the cage and construct the idea of the Volk, ‘the people’, which can impart meaning to the lives of individuals. And, according to Schmitt, the idea of the Volk has substance only when it is understood to refer to an utterly homogenous group.” (14) However, these ideas are differentiated from so-called neo-Romantic yearnings, largely due to its focus on modern technology. “In putting forth these ideas, Schmitt joined a larger group of German intellectuals who have aptly been called ‘reactionary modernists’. For them, the loss of the German monarchy introduced the same kind of state of emergency into German society that Hobbes had responded to in his day. With Hobbes, they thought that traditional modes of legitimacy could not be revived to deal with the emergency. Unlike Hobbes, they could look back to some centuries of an attempt to find an alternative in a rational grounding for political power.” (14)
Much of what Dyzenhaus says about Schmitt is, as he informs his reader, exposition. But the point he arrives to links the state of emergency in the Weimar to Hart’s liberal positivist penumbra. “On Schmitt’s account, the Weimar Constitution was just another liberal attempt to tame and constrain the real irrational sources of political power in chains of legality, but it cannot help but recognize those sources and thus prepares the way for its own destruction. The state of emergency provision, in other words, was the constitutional recognition of the general state of emergency in society to which the Weimar Constitution was a necessarily botched and contradictory response.” (15) “Hart’s penumbra,” Dyzenhaus continues, “is a kind of mini state of emergency for a positivist theory of law. It is an emergency because, by positivist stipulation, it is not resolvable by law. But it is mini because it is containable: order can be secured as long as the core of law is large enough. But if the boundary between core and penumbra cannot be sharply drawn, the core seems to disappear; and then for positivists the state of emergency becomes uncontainable and generally pervasive. Dworkin’s principled solution may then seem no solution at all if, as seems to be the case, there is little consensus as to the principles and their content.” (15) He concludes the section by stating the purpose of the next. “As I will show, an exploration of aspects of the Weimar debate on legal and political philosophy gives us both a better understanding of the current state of impasse in political and legal philosophy and a basis for a productive route forward. But before embarking on this task, I will provide a little more historical context.” (17) What is most important about his section on the short history of the Weimar is his interpretation of what led to its demise. “My position,” Dyzenhaus writes, “is firmly with those who regard the destruction of Weimar as the direct and deliberate result of the efforts by anti-democrats to subvert democratic institutions at every opportunity.” (17) On page 19, Dyzenhaus outlines the details of the Weimar constitution: the role of the President, how he is elected, the powers he possessed both domestically and in regards to security, the process behind the dissolution of the Reichstag, and of course Article 48, which gave the President “vaguely defined power to ‘take measures’, including armed force, to intervene in the affairs of the Reich or of a particular Land in order to restore public safety and order” (19). But Dyzenhaus notes that paragraph 3 (a provision that required the President to inform the Reichstag of his measures and that the Reichstag could demand the measures be suspended), paragraph 4 (which permitted the Reichstag to ‘determine the details’ of further action in terms of Article 48), and that orders of this sort required the countersignature of the Chancellor placed limitations of the power of the President (19 - 20). He notes the obvious weakness in these limitations. “The President could get rid of the supervision of the Reichstag over his measures taken in terms of Article 48 by continual use of his authority to dissolve that body.” (20) On pages 20-21, Dyzenhaus continues to list the key aspects of the Constitution; Article 76 protects the Constitution itself, and the second half of the Constitution listed the fundamental rights and duties of the German people. The socio-economic conditions of a war-worn Germany under the burden of Versailles, and a political climate inhabited by far-left and far-right elements were less than optimal circumstances for the Constitution to come into being (21). The legend of the ‘shameful peace’ perpetuated by radical political elements on both sides of the spectrum is quickly debunked by Dyzenhaus (21-22). However, as he notes, the legend, as baseless as it may be, still “managed to hold German democrats responsible for all of the troubles of Weimar at the same time as relieving of all blame the right-wing forces clustered around the military” (22).
Dyzenhaus revisits a familiar point in regards to the rise of the Nazis; namely that Hitler recognized the usefulness of manipulating nationalist fervour for purposes of dissimulation and propaganda, in pursuing power through constitutional methods. Once in power, the form of the state can be remoulded to fit Nazi ideas (23). Or as Dyzenhaus succinctly puts it, “he would use more or less legal means to overthrow the legal order” (23). Pages 23-27 outline the usual historical account of the rise of Hitler to power. “The Reichstag fire of 27 February 1933 gave Hitler the pretext to act decisively.” (27) The Reichstag fire, as you recall, provided the emergency for Hitler to annihilate not only the Communists but other elements the Nazis deemed obstacles to their path of power. Hindenberg signed the decree of 28 February “which gave Hitler a completely free hand to deal with his enemies, and which announced the reign of arbitrary, unconstrained terror that would persist until the end of the war” (27). The Enabling Act of 23 March 1933 “formally handed constitutional and legislative power to Hitler so that from then on his seizure of complete power was only a matter of taking the necessary steps”. Acts of treachery and murder could now be retrospectively declared legal by decree of his Cabinet (28). Pages 28-32 outline the events of the 20 July 1932 coup d’etat, which resulted in the displacement of the Prussian government. It serves to reinforce the claim that anti-democratic forces did indeed conspire to destabilize the country and install authoritarian measures. The terror and brutality of the Nazis and their paramilitary elements left the German government to bow to open acts of political terror (32). The constitutional appeal against Papen’s assumption of the Prussian commissionership was rejected, and as Dyzenhaus points out, had the court stood up against the unconstitutional coup, the “cloak of legality, under which Papen and Schleicher had attempted to establish government by decree” would have been torn apart (32).
In the final section 1.4 of Chapter 1, Dyzenhaus provides the full text of Article 48 to analyze the court decision (33). His analysis posits that Papen justifies the coup mainly on the first paragraph of Article 48, while never justifying how public safety and order of the Reich was endangered in Prussia, which are the grounds for the suspension of fundamental rights. Dyzenhaus articulates his central point very lucidly. “In short, although Prussia did stand on the brink of civil war between the Nazis and the communists, Papen’s Cabinet had done its best to push Prussia to that brink.” (34) The political motivation behind these machinations were simple, to cobble together a rightist alliance between the Nazi Party and German Nationalists to control the Prussian government. “Such an alliance,” writes Dyzenhaus, “subject to the control by the barons of the right, would of course be one in line with what the presidential Cabinet wanted to achieve. But the achievement, far from upholding the Constitution of the Reich, was precisely Gleichschaltung, that is to say bringing Prussia into line by total, elimination of its democratic institutions.” (34) “Hitler’s process of Gleichschaltung,” he adds, “had more than a clear precedent in the coup of 20 July.” (34) The court reasoned that “the President was entitled to take the measures he had in fact taken – assuming control of not only the Prussian police but also the entire machinery of state in Prussia”, citing that Article 48.2 had indeed been invoked during “a time of manifest breakdown in public safety and order” (35). In examining the details of the decision, it becomes obvious that this is the point of discussion for the rest of the book. “We still have to deal with the question of the merits of the decision. There are three possible answers to that question, each of which is given by the legal philosophy of one of my three figures, Schmitt, Kelsen, and Heller. For Schmitt, the decision is correct but confused because it avoids a full acknowledgement of its radical basis. For Kelsen, the decision is confused in part because of weaknesses in the Constitution…The answer is ultimately a political one (for Kelsen) and to be judged by the criteria of politics not law. For Heller, the decision is fundamentally wrong and what confusion it exhibits shows that the judges failed utterly in their duty to uphold the Constitution, but tried to cover this up by offering Prussia a form of legal protection which lacked entirely the democratic substance which the legal form was meant to protect.” (37)
Chapter Two starts off with a list of the themes apparent in Schmitt’s critique of liberalism found in modern political philosophy, many of which are familiar (38). Liberalism conceals its politics, according to Schmitt; a politics of getting rid of politics. “Liberalism’s stance of neutrality, far from being neutral between different conceptions of good, would undermine all those in conflict with it, thus bringing about its own kind of homogeneity – the homogeneity of a society composed entirely of market-oriented egoistic and hedonistic human beings, that is to say, the liberal individuals.” (39) Schmitt, as Dyzenhaus notes, was never clear about the point of his critiques, nor indeed about the precise nature of his target (39). This leaves three interpretative possibilities according to Dyzenhaus. The first interpretation is that Schmitt urged liberals to grasp “the political component of legal positivism and its particular expression in the Weimar Constitution” (40). “Only if they did so, would they be able to defend liberal legal order against the forces of extreme left and right.” (40) This is an apologist account, as he rightly points out. The second interpretation is that Schmitt holds liberalism and legal positivism as being, or becoming, inherently contradictory (40). “For liberalism to wake up to this fact, to its contradictory politics, would be self-destructive: the moment of awakening is the realization of the impossibility of liberalism.” (40) This account, adds Dyzenhaus, can also form part of an apologist account. The third interpretation, that “liberalism is Schmitt’s main target and his polemics against it are designed to prepare the way for a decision for a new sovereign order that will thwart liberalism’s struggle for dominance”, appears to be most congruent to Schmitt’s own concept of the political, as we shall see (40). This third interpretation most avidly implicates Schmitt surrender to the logic of his own arguments, insofar that the Nazis fulfilled his criteria of a sovereign order that can displace liberalism. At the bottom of page 40, he cites Schmitt’s Concept of the Political as substantiating this interpretation. “It is on this distinction (between friend and enemy) that his philosophy of law and politics is founded and he deploys it to bind together the main elements of that philosophy – decision, sovereignty, and situation.” (40) The first part of 41 outlines the premise of the friend-enemy distinction, no different from the conventional accounts of it. Dyzenhaus admits that Schmitt’s thought is “deliberately unsystematic”. “Since for him a systematic development of thought presupposes a commitment to a set of beliefs that are possible only against the background of substantive homogeneity, and since such homogeneity was not in his view in existence during Weimar, his arguments must be, by his own criteria, unsystematic.” (41) He concludes that the incongruence of theory and practice applies to Schmitt’s own unwillingness to provide decisive clarification of his conclusions (41). Dyzenhaus provides a sketch of what he aims to do in the chapter on page 42. Pages 42-51, as Dyzenhaus promised, deliver the basis of Schmitt’s thought primarily through the texts of Political Theology and The Concept of the Political. Dyzenhaus leaves the reader with three pressing questions at the end of the section.
“First, there is Schmitt’s sense that even if liberalism wins the day this will not be political victory properly so called. It will not, that is, amount to a decision, but to an act of self-subjection to an alien people. But on what grounds did he disqualify the decision for liberalism given that it seems that there are no criteria over and above those that informed the making of any particular decision?” (51) This first question address basically asks whether decision, as conceived by Schmitt, is absolutely incompatible with liberalism.
“The second question arises because Schmitt maintained that politics, on his understanding of authentic or genuine politics, is necessary in order to establish the normality of legal order. But, given Schmitt’s apocalyptic description of politics, how is that description reconcilable with an allegiance to the normal?” (51) This question seeks to clarify the grounds that link the norm with the exception. If politics is derived from the friend-enemy distinction, is there any space for the norms?
“Third and most pressing is the question of what the criteria for authenticity, genuineness, and so on are. This question arises out of the ambiguity I identified in Schmitt’s definition of sovereignty. Most of the time, he seemed to claim that these criteria cannot be determined other than existentially, that is, in the very struggle about what their content is. But at other crucial moments, most notably in his stipulative exclusions of liberal content, he did seem to want to give some advance, albeit negative, specification of authenticity or genuineness.” (51) This question appears to be most pertinent to any discussion of democracy.
From 51-56, Dyzenhaus provides exposition of Schmitt’s Constitutional Theory. The work centres on questions regarding identity and representation, at least from what Dyzenhaus touches upon. On page 56, Schmitt, Dyzenhaus argues, posits the ideal of equality must be distinguished from a liberal universal one, because it is inherently political. “When there is no such homogeneity, there are various peaceful methods of creating it, for example, separation or assimilation. ‘Other methods are quicker and more forcible: abolition of the alien component by repression, resettlement of heterogeneous populations and other similar methods.’ The methods required to create homogeneity demonstrate for Schmitt the antithesis between democracy and the liberal ideal of freedom and equality of all individuals with each other. ‘A democratic state would be robbed of the substance of its public life and public law by a systematic recognition of universal individual equality.’” (56) For Schmitt, the central concept of a democracy is the people and not humanity. The people by and large is a particular concept, specifically defined. Humanity, on the other hand, is a universalized concept, and Schmitt, following the logic of his friend-enemy distinction, considers this all-inclusive concept apolitical precisely because it circumvents the need for decision. But Dyzenhaus summarizes the section very succinctly.
“So Schmitt’s theory of constitutional democracy, as he himself made explicit, rests on a series of equivalences. The state is the political unit of the people, the representation of their political identity, which means their substantive homogeneity. And as we know from Concept of the Political, the authentically political decision is on which brings about substantive homogeneity. Only such a decision can make the distinction between friend and enemy. The loss of the political is thus one and the same thing as the loss of the friend/enemy distinction. And that loss, Schmitt supposed, is more than to be regretted. It is the loss of all that is noble and worthwhile. Thus, for Schmitt dictatorship and democracy are hardly antithetical; rather, they are the two sides of the same coin.” (57) He states this point even more clearly on the next page. “As Schmitt told us in Political Theology, what is important in the sense of creating value is not the content of the sovereign decision that is made, but that a sovereign decision is made. Authority and not truth makes law” (57) Autoritas, non veritas facit legem – refer to page 52 of Political Theology.
“His final understanding of liberalism’s metaphysical system was, I think, that liberalism’s metaphysics resides in its aspiration to be or to appear to be without metaphysical commitments. In politics, the complex structure of a system which wishes to appear as such manifests itself in the politics of appearing to be a- or even anti-political. In particular, liberalism in order to become and maintain itself as the dominant ideology, had both to establish itself publicly and to find some means of maintaining its public presence.” (58) The development of liberalism, in its ‘nascent’ stages, was a reaction to monarchy, taking steps in curbing sovereign power (59). But the need to assert itself publicly, liberalism reveals its own inherent contradictions. This, argues Dyzenhaus, is the key to Schmitt’s understanding of liberalism. “But a public presence, on Schmitt’s view, is in contradiction with liberalism’s allegiance to the primacy of private order. It is not that liberalism is in itself contradictory, but that, in the attempt to actualize itself, to assert and maintain its control over the public, it becomes contradictory.” (58-59) Page 59, once again, explicates how liberalism’s political struggles led it into two different directions. First is the requirement that any exercise of state power be in the name of the law or authorized by statute (59). In other words, this is the emergence of the rule of law. Second is the extension and amplification of the parliamentary powers and jurisdiction until the monarch is substantively excluded from the legislative process (59). In other words, this is a depersonalization of sovereignty. Although Schmitt thought that liberalism only in the course of its development had “as intense of a political existence as it is capable of having” (59), the two directions that stemmed its own political struggle obscures the presence of the decision. The conflation of democracy with the Rechtsstaat leads to confusion. “The peculiar feat of liberalism is to replace any substantive idea of the will of the people with a formal notion of the will of Parliament. The statutes produced by the legislative assemblies of the Rechtsstaat are henceforth assumed to represent the will of the people. Schmitt thought that from his vantage point in history one could see how the conflation of the Rechtsstaat with democracy led to the confused situation of his time.” (60)
To put it simply, Schmitt contends that liberalism merely displaces monarchical absolutism with a parliamentary absolutism. “In accordance with his general assumption that all concepts of law are fundamentally political, he seemed at times to want to disinter the politics of the liberal concept of law from this confusion. He seemed to want to show that the liberal commitment to form is based on something material or substantive. For a completely formal concept of statute, one that says that all there is to statue is that which is enacted by the legislature in accordance with the appropriate procedures, would turn the rule of law into an absolutism of the legislature. In that case, Schmitt, said, the whole of the bourgeois battle against monarchical absolutism would have been useless: it would have resulted in the many-headed absolutism of the actual parliamentary majority.” (60) This section is key to understanding the contradiction that arises in liberalism, mentioned earlier on. From 60-62, Dyzenhaus looks at Schmitt’s discussion of fundamental individual rights in relation to the Rechtsstaat. On page 61, any statutory encroachment of “pre-political” fundamental rights is regarded as exceptional. “The pre-political and unpolitical nature of fundamental rights means that they are absolute in the sense that their guarantee is not dependent on law, nor do they get their content from law. A statutory encroachment on fundamental rights is, hence, regarded as exceptional, something to be limited by the criteria of form which a statute has to meet to be considered valid.” (61) Dyzenhaus refers the reader to Article 114 of the Weimar Constitution to substantiate this point.
“According to Schmitt, the two main principles around which liberal parliamentarianism are built are the principle of openness or publicity and the principle of the division or separation of powers.” (62) Both principles are methods of taming absolutist power, as Dyzenhaus points out (62). But Schmitt contends that both principles work against each other. “The principle of division of powers weakens the state by dispersing its power with the largest concentration of power residing in the legislature. The principle of publicity seeks to do away with partiality but it has to accept rules of closure for debate, which means that decisions are taken either by simple majorities or, in some special cases, by enhanced majorities. And the interests which form a majority cannot be said to represent a public citizenry, since all that they in fact represent is themselves in temporary alliance with others. A state weakened by the division of powers is further weakened by the conflict between interest groups over its most important institution.” (63) On 63-64, Dyzenhaus notes Schmitt’s critique of the secret ballot, central means of majority decision-making. It is not too surprising to see that Schmitt does not hold this type of decision-making in high regard. “So Schmitt’s argument, given his premise that democracy requires substantive homogeneity, is that the majority decision-making that is the result of the liberal individualism of the secret ballot can never amount to an expression of the people’s will or decision…for the liberal attempt to relativize power through the division of power is antithetical to democracy.” (64) Of course, this should not surprise anyone who has had even a cursory look at Schmitt’s work. Schmitt saw that this division of power would inevitably be exploited by interest groups and coalitions of interest groups dominating the legislative bodies. In addition to the exploitation of the process, Schmitt adds that the particular liberties ascertained would also be used to exert influence. “And they will use the particular liberties that are fundamental to liberalism – personal liberty, expression, association and assembly – to exert their influence, which might well be in the interests of groups whose aims are antithetical to liberalism.” This reinforces the dilemma facing liberalism; namely, that to publicly make itself present, it invariably subverts the liberties it holds integral to itself. On pages 64 and 65, Dyzenhaus discuss two aspects of liberalism: neutrality and self-subverting vulnerability. Schmitt argues that liberal individualism requires a neutral state, “in the sense that the state is neutral in regard to all religions and creeds” (64). The principle that ‘all conceivable opinions, tendencies and movements have an unconditionally equal opportunity to establish a [parliamentary majority]’ is self-subverting (65). “In its attempt to create a neutrality that shuns the distinction between friend and enemy, it subjects itself to any enemy that can command a majority in Parliament. It thus subjects itself to the forces of civil society since the laws enacted by that majority are held to require unconditional allegiance, the renunciation of any right of resistance, because of liberalism’s self-subjection to the parliamentary legislative state.” (65) This is speaking about passivity inherent in liberalism, i.e., the traditional concession speech by the loser of an election, “the country must move on…and so on”.
Schmitt, however, links both of these aspects of liberalism to legal positivism, what he considered the official legal and political philosophy of liberalism. “Legal positivism is thus the ideology developed by liberals both to justify their struggle against the kind and to sustain their political domination thereafter.” (65) For Schmitt, normativism and institutionalism are the two types of legal thought other than positivism. Dyzenhaus notes that after 1934, Schmitt employs the term ‘the idea of concrete order thought’ in place of institutionalism (65). On page 66, Dyzenhaus explicates how Schmitt differentiates between normativism and ‘the idea of concrete order’. Schmitt believes that legal positivism has elements of both normativism and decisionism (66-67) “The decisionist element of legal positivism comes about then because the norm itself is the product of a decision and then, as we have already seen, for political reasons, a decision for the legislature as the incumbent of legal power. This leads, according to Schmitt, to the peculiar position of positivism which makes it a mixed and time-bound mode of thought.” (67) Although it is unclear how the decisionist proponent of legal positivism can be connected to a critique of liberal democratic order, Dyzenhaus provides some clarification.
“Although Schmitt did not make this explicit, it seems that for him the decisionist component of legal positivism has two aspects to it. On the one hand, there was the historical political decision on the part of the bourgeoisie to form an alliance with the democratic forces whose result would be the concentration of legislative power in Parliament. And then there is the continuing and necessary moment of decision, which is supposed to be both preserved and exhausted in the actual decisions made by the Parliament. That is why the legal positivist is put in the impossible position of both subjecting himself unconditionally to Parliament and requiring of Parliament that it itself be subject to law.” (68) Hence, there is another layer to the dilemma facing liberalism. In addition to the ‘impossible position’ that comes about because of this, the decision, as Schmitt conceives of it, is compromised beyond efficacy. “The decisionism that is preserved in the reservation of legislative power to Parliament is in a sense not a genuine decisionism at all. Rather, it is a decision to avoid decisions, an avoidance and postponing of decision, that is characteristic of liberal politics but which also renders it vulnerable.” (68) All of this sounds quite familiar, because it returns to the previous point; namely that Schmitt sees this ‘decision to avoid decision’ as being a fundamental problem with liberalism. In order to assert itself, liberalism invariably subverts the grounds upon which it is based. On the bottom of page 68, Dyzenhaus provides a summation of Schmitt’s point so far leading back to the central thesis. “However, in using parliamentarianism as the public means of establishing itself, liberalism fails to achieve its individualistic aims. Rather, it subjects the individual to the forces of civil society. For these forces exploit the liberties which liberalism guaranteed in order to win power for itself. Liberalism has to make the transition from private to public in its bid to privilege the private, but it cannot do so without subverting itself.” (69)
At the bottom of page 69, Dyzenhaus notes that Schmitt’s look at concrete orders is also a critique of the secularization of theologies. “Schmitt took it to follow that liberalism is also a concrete order where one group, the bourgeoisie, attempts to rule over all others. And in line with his view of the ultimate concreteness of all order, we have seen his claim that all political doctrines are absolutist in the sense that they are secularized theologies in a pluriverse of each ideologies, each seeking to get control of the whole and each claiming that right is on its side.” (69-70) Dyzenhaus attempts to frame or re-frame liberalism’s dilemma. “In short, then, liberalism’s dilemma is between substance, on the one hand, and substancelessness or neutrality, on the other. If its political/legal order, the liberal democratic order, is threatened through use of its own legal mechanisms, it asks judges to withstand the threat,” Dyzenhaus writes (70). He continues later on, “Hence the dilemma is not resolvable for liberalism – it is doomed constantly to recreate the dilemma. Its vacillation between the poles of substance and substancelessness or neutrality is reflected in legal theory in a vacillation between positivist accounts of law and those which attempt to import a normative substance into the very idea of law.” (70)
Section 2.4 entitled “The Guardian of the Constitution?” (70-86) debunks the various apologetic accounts of Schmitt’s implications with Nazism. As Dyzenhaus illustrates near the end of the section, Schmitt’s actions were clearly an extension of his thought prior to 1933. He does this by unfolding the clear continuities between Schmitt’s work prior to 1933 and the works produced during the latter’s “productive phase” while intimate with the Nazi regime. The most notorious of these works, as Dyzenhaus notes, is an essay entitled, ‘Der Führer schutzt das Recht’ [The Führer guards the law], in which Schmitt praised Hitler’s retrospective validation of the political murders of 1933 (83). Dyzenhaus explains that Hitler’s actions reflected those required of a leader within Schmitt’s logic. “Hitler had made the distinction between friend and enemy, as proved in the murders, had established himself decisively as the supreme source and judge of all right and law, and had done away with the liberal and parliamentary fictions of Weimar. Most important of all, he had through his personal representation of the German people as a homogenous unit, brought about the democratic identity which Schmitt prized above all else.” (83) Of course, these are the themes that Dyzenhaus explored throughout the chapter. The thematic of the artist, of the bricoleur strangely is implicit in Schmitt’s own praise of Hitler, as Dyzenhaus explains, “Moreover, there could be no doubt about the popular acclaim, the resounding ‘yes’, that greeted Hitler’s vision – he had brought something into being, made a presence of an absence.” (83-84) Or prior to this on p.81, “Rather the decision would be a moment of representation that made an absence into a presence – that brought the unity of a German people, whose existence until that moment was only immanent, into being. It would be a decision that would be truly democratic on condition that it met with the only test for legitimacy currently available, that is, the acclamation of the German people through a plebiscite.” (81) Hence the election of the President commissioned “an authority that knew no legal boundaries other than those that came out of the political decisive decision of the German people” (80). Refer to the discussion of sovereign and commissarial dictatorship on pages 75-80 for context on these differences. The ‘genius’ of Hitler, according to Schmitt, was this ability to bring into presence absence, a variant on the task of an artist. The violent exclusions necessary for the creation of a homogenous identity, however, is justified by the rigorous logic of Schmitt’s argument. “Hitler’s vision was of course of a German identity that excluded much of the German people, including liberals, communists, socialists, homosexuals, and Jews. But that, as we have seen Schmitt say, is no more than the radical consequence of democratic homogeneity.” (84) The distinction between friend and enemy demands that such radical exclusions be made, because, as Schmitt’s critique of liberalism indicates, the universal category of humanity is weak and flaccid compared to democratic citizenry. Hence, the category of citizen, part of democratic homogeneity, is that requires exclusion by its very definition. Schmitt, never one to ‘lay his cards out’, appears to be a duplicitous character. He is, however, not a mere political opportunist. And as Dyzenhaus points out, his celebration of Nazism is indicative of a deeper tension within Schmitt’s political and legal thought (85). The discussion turns to an examination of Schmitt’s work on Hobbes’ Leviathan.
“Thus Schmitt’s task was to ask whether Hobbes’s absolutism can be rescued from his individualism.” (90) In embarking on this task, Schmitt focuses on two related thought also antithetical places in Hobbes’s construction of the state where individualism manifests itself (90). “First, there is Hobbes’ emphasis on state structures that facilitate individual calculation of the consequences of action and secondly there is his distinction between faith and confession.” (90) It is Schmitt’s contention that “Hobbes failed to establish a truly political mode of thought”, thus preventing the sovereign from making the friend/enemy distinction (93). “Absolutism has to be rescued from Hobbes’s individualism since it is individualism that prevents one making the friend/enemy distinction.” (93) “Like Schmitt, Hobbes viewed the individual as by nature evil and anti-social so that education is not the means to self-mastery but just one way of subduing individuality.” (94)
“Politics, for him (Schmitt), was a matter of elite determination with the aim of eliminating all internal enemies. The glory of politics can then be cultivated in the utter homogeneity of the nation state ready to do battle with other nation states.” (95) The category of the enemy, for politics to exist, must be defined on the outside? “Schmitt was torn between his craving for the vitality of the political, on his understanding of the political, and his desire for stability and order at any cost. He criticized liberalism both for sapping politics (and thus life itself) of vitality and for destabilizing order through its relativism in regard to questions of fundamental value.” (97) Section 2.6 concludes the chapter with a very brief examination of Schmitt’s anti-Semitism. The point Dyzenhaus conveys is that in order to extract anything of value from Schmitt’s scholarship, his anti-Semitism must be dealt with. “Schmitt’s friend/enemy distinction is tied to his idea of substantive homogeneity, and was produced in a context where, as Schwab recognizes, these ideas had to end in the Jews being excluded from German society in some radical way. Then as now, Schmitt’s categories lead inexorably to a politics that rests either on a blind hatred of the other, or, perhaps even worse, to a cynical instrumentalization and manipulation of the fear of the other in order to blame that other, whoever it might be, for all society’s social and political problems.” (101)
