As an occasional feature on TELOSscope, we highlight a past Telos article whose critical insights continue to illuminate our thinking and challenge our assumptions. Today, Linas Jokubaitis looks at Carl Schmitt’s “The Legal World Revolution” from Telos 72 (Summer 1987).
Carl Schmitt wrote “The Legal World Revolution” when he was ninety years old, and it turned out to have been his last publication. New political developments had forced him to restate some of his old positions, the most important of which was the relationship between legitimacy, legality, and super-legality. The guiding theme of Schmitt’s final publication was the one that had been of the highest importance during his whole career. It is best summarized in notes posthumously published as Glossarium, in a passage entitled “The Diagnostic and Prognostic of Max Weber,” where Schmitt quoted from Weber’s “Sociology of Law”: “As a result of technical and economic development, it is inevitable that current law is destined to be conceived more and more as a rational technical mechanism which can be modified at any time for functional purposes, and is lacking in any kind of sacred content. The destiny may be hidden by the suppleness of belief of the current law, but cannot be truly avoided.”
To these sentences in his notes, Schmitt desperately added the following question: “Before 1933, who else but I spoke of this situation, and who tried to do anything about it?” There could hardly be any doubt that Schmitt was the one who had seen the writing on the wall for Weimar Republic most clearly. The dangers inherent in the process of secularization and rationalization, as described by Weber, had been clearly and forcefully developed further by Schmitt in his Weimar writings. This was something that many other famous jurists had failed to do.
In the essay “Question of Legality” (1950), Schmitt wrote about the insight of Father Laberthonniere, “who after examining the notions of the supremacy of law which go back to and reach their acme in a well known saying of Aristotle’s, namely, that ‘not men but the law must rule.’ To this the learned Oratorian opposes the assertion that men stand directly behind every earthly law and that they use the law as a means of their power.” Schmitt was in complete agreement with Father Laberthonniere’s statement that “the saying: ‘it is the law’ does not differ in any way from the saying: ‘it is the war.'” In other words, for Schmitt the statement “it is the law” signifies nothing. The German jurist never tired of repeating that all great political theories are pessimistic about human nature. By insisting that men stand behind every law, Schmitt reminded to everyone who cared to listen that there is absolutely no reason to think that men, who are by nature evil, will become good once everything is ruled by laws.
The fatal year 1933 proved that Weber and Schmitt had been right in their worst fears. Looking back on his attempts to combat the possibility of the constitutional self-destruction in Weimar, Schmitt wrote in “The Legal World Revolution”: “My own juridical efforts to shut the closing but never completely closed door to legality by a rational interpretation of the provisions for revision (Art. 76) of the Weimar Constitution failed, due to the partly skeptical, partly ironic approach of its other interpreters. The door remained open enough to facilitate the destruction of those compromises necessary to the structure of constitution” (83).
The most important of the “other interpreters” was undoubtedly Hans Kelsen, whose pure theory of law had always been one of the main targets of Schmitt’s criticism. Schmitt’s war with Kelsen’s theory of law remained an important element of his thought up until the very end. After all, Schmitt had been the one to sound the bells about a possible legal destruction of the constitution. His diagnosis and prognosis proved to be very precise. The shortcomings of Kelsen’s theory were brutally exposed by the Nazis.
Jacob Taubes provided some insightful observations on Schmitt’s polemics with Kelsen. He noted an interesting fact: in his Allgemeine Staatslehre (1925), Kelsen wrote: “The claim that there is no legal order in despotism, but only arbitrary rule, is completely without meaning . . . even the state governed despotically represents some kind of order in human action. . . . This order is the legal order. To deny this the character of law is only a naivety born of natural law, or simple presumption.” When the book was translated into English as General Theory of Law and State (in 1949), this passage was missing from the translation. However, in all other important aspects the pure theory of law remained unchanged.
The events of the year 1933 did not teach Kelsen a lesson. In “The Legal World Revolution,” Schmitt concludes his position on the Hitlerian legal and paralegal manipulations with a statement: “The lesson was not lost” (84). The troubling fact for Schmitt is that the lesson was not learned by professional jurists. It was learned by the revolutionaries. The lesson was not lost on those who saw in Hitler’s manipulation of legal system an example to emulate. Eurocommunism and the State, by Santiago Carrilo, was for Schmitt a confirmation of his fears that concerning the legal theory not much had changed since 1933:
Carrilo knows how to make a good use of the experiences of Mussolini’s Fascism and Hitler’s Nazim. He uses the word “State” a hundred times with positive emphasis and always capitalizes it: Estado. The state is certainly no longer dead, but more alive and necessary than ever: it is specifically the bearer of legality, which brings about this miracle of a peaceful revolution. The revolution in turn legitimizes the state as the reward for bringing about a legal revolution. (73)
In “The Legal World Revolution,” Schmitt repeats a position that he had already sketched in his Theory of the Partisan. There was nothing left of the old state legitimacy. It had been replaced by empty legality which was only a mode of functioning of bureaucracy. Any political power, regardless of its aims, could gain “the unavoidable political premiums of the legal holding of state power” (74) and transform the state according to the wishes of those who happened to be holding the political premium.
Before the legal revolution of 1933 in Germany, Schmitt had warned against giving equal chance to parties that openly demanded the destruction of the constitution. Schmitt had warned that the way was open for Communists and Nazis legally to enter the parliament, to obtain “political premiums of the legal holding of state power,” and to “close the door of legality behind them.” He had clearly seen the dangers of the self-destructive principles according to which liberal democracies operated.
Schmitt thought that after the collapse of state legitimacy, there still remained a need for some kind of legitimacy, and it was provided by various ideologies of progress: “Progress in the sense of accelerated scientific, technical and industrial development thereby also can become an all-out global legitimation of opposing political means and ends. Then every rightist of leftist party program can legalize its basic values—can create the political chance to compel obedience to the state. That would constitute the most incalculable of all premiums of legal holding of power” (76).
In the postscript of his Political Theology II, Schmitt wrote: “the word ‘legitimacy’ was understood for centuries as the monopoly for the legitimation of dynasties. In other words, it was a justification of continuity, tradition, upbringing, and heritage.” The meaning of the word “legitimacy” had changed radically in the twentieth century. “Legitimacy,” Schmitt writes, “ceased to be a specific attribute of hereditary monarchy with President Woodrow Wilson, the founder of the League of Nations. Dynastic legitimacy became democratic legitimacy, whereby the corresponding antagonisms were transformed into democratic attributes. Liberal, i.e., capitalist democracy is now the enemy of socialist, i.e., communist democracy and vice-versa” (75).
For centuries legitimacy had been understood as something having to do with continuity. In modern industrial societies the meaning of the concept underwent an incredible change. In his review essay of Karl Löwith’s Meaning in History, Schmitt wrote that “[a]ll mass propaganda seeks its evidence in the proof that it is on the side of things to come. All mass faith is only faith in being on the right path, whereas the opponent is not.” Schmitt thought that in the twentieth century legitimacy had become associated with mass propaganda and ideologies of progress.
Today Schmitt’s analysis of the relationship between legality, legitimacy, and super-legality remains as important as ever. In 1978 one of the most gifted political thinkers of the age was clearly being ironic when writing about “European patriotism” (86). For him this must have sounded as an example of contradictio in adjecto, one step short of an even more absurd idea of “humanity as a political subject” (85). Today, the problem of the possibility of “European patriotism” has become one of the most contested topics in Europe. Those who now believe that the nations of Europe need to be taught a lesson in “European patriotism” are on the side of progress and use the premiums of legal power through the institutions of EU. The claim to legitimacy is based on the presupposition that these institutions are on the side of things to come, that they are progressive.