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Pi Gamma Mu International Honor Society in Social Sciences

Roots of Totalitarian Law: The Early Works of Carl SchmittAuthor(s): Paul BookbinderSource: Social Science, Vol. 56, No. 3 (SUMMER 1981), pp. 133-145Published by: Pi Gamma Mu, International Honor Society in Social SciencesStable URL: http://www.jstor.org/stable/41884716 .Accessed: 13/02/2014 09:05

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Roots of Totalitarian Law:The Early Works of Carl Schmitt

Paul Bookbinder

University f MassachusettsBoston,Massachusetts

Carl Schmitt provided significant art of the theoretical egalframework orGermany's ransition rom a republican to a totalitarian tate. Schmitt, whomMarcusecalled the martestman o support heNationalSocialists, ejected he iberaland individualist raditions f the 19th entury n favor f a statedominated ya newGeneralWill reflecting hehomogenized niformity f modern ndustrial ociety. n

three major early works which explore the nature of guilt, he basis for udicialdecisions,nd the elationship etween he ndividual nd the tate, e aid the basisforhis ater work nd for totalitarian aw.

Herbert Marcuse has called Carl Schmitt hemost ntelligent erman cholar osupport heNational Socialists. chmittwas indeed scholar f remendous earning,widespreadnterests, nd substantial roduction. is work, roduced ver period fmore than 50years,wasalways nteresting nd timely. e wasa legaltheorist nd apracticing awyer, political theorist nd a propagandist. This combination fsignificant hought nd significant ction makeshim fascinating igure or tudy. ecameof agein the years f the Wilhelminemonarchy, articipated n the FirstWorldWar, was an activefigure uring heWeimaryears, erved he NationalSocialists nthe 1930's,begana new academiccareer fter period f detention n the 1940's, nd

remained roductive nto he1960's.His lastbookwasa study fguerrilla arfare. Asa legaltheorist, eexplored hebasisfor egaldecisions, henature fguilt, he onceptof sovereignty, nd the principles f international aw. As a practicing ttorney, erepresented he central government f Germany n a legal action in 1932,whichcontributed ubstantially o the fall of the Weimar Republic.

Schmitt pentmuch f his ife s a university rofessor, utwasalso amember f hePrussian tate Councilunder HermannGoring nd editor f themajor egalperiodi-cal, Deutsche-Juristen eitung during he 1930's.He was an outspoken nemy fliberalism, ndividualism, nd representative overnment. lthough he has beenlabelled a conservative, e was a right-radical, true proponent f the totalitarianstate.His criticisms ere lwayseffectively resented nd challenging. he questionsthat he raised still require nswers today, although different nes from hosehepresented. y the 1930's,his answers erved s basis and buttress or he political ndjudicialcampaignto establish nd strengthen ational Socialism n Germany.Hisverbal ttacks n the courts nd hiswritten ecisions nd ournal articles ndermined

Dr. Paul Bookbinder s a historian nd holds doctorate nthehistory f deas fromBrandeisUniversity. e is currently ssociateprofessor f history t the University fMassachusetts,Boston. His most recent publications nclude: The Culture ofViolence n Weimar Germany, ournal f Terrorism, iolencend Insurgency TheWeimar oliceExperiment, oliceStudies; nd Carl Schmitt, talianFascism, ndthe Destruction of German Parliamentary emocracy, talian Quarterly He ispresently orking n a study f the completewritings f Carl Schmitt.

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134 SOCIAL CIENCE OR SUMMER 981

republican oncepts f law and shapedthe structure pon whichNational Socialistlaws were acked.These deas,as well s his ater nvestigations,ll find heir oots nSchmits arliest workswritten efore he First World War. It is from here hat heconsistencies nd inconsistencies f his mature works merge n high relief.

In hisearlyworks, chmitt iscussed henature f guilt, hemeaning f ustice, ndthe relationahip etween he ndividual nd society.berSchuldund SchuldartenEine terminologische ntersuchung Gesetz und Urteil Eine Untersuchung umProblem er Rechtspraxis, nd Der Wert es Staates unddieBedeutung esEinzelnenform he foundation or ll his ater egalwriting nd for much fhispolitical heory swell.2Schmits comment o George Schwab that his early work was merely nacademicexercise nd of no significancemust not be taken seriously. here s animportant onsistency etween the early and later writings; et there are alsoembarrassing ontradictions hich he did not want to face. The questions aised nthese arlyworks re still ital oday, nd there s much o be pondered y the urrent

historian, hilosopher, nd legaltheorist.Schmitt was born in Plettenberg n the Rhineland n 1888. His father was amerchant. he family adstrong ies othe CatholicChurch, nd he received atholicreligious raining arly nhis ife. He attended econdary choolat the HumanistischeGymnasium t Attendorn n Westphalia.After isgymnasium raining, e studiedjurisprudence or ix semesters pending wo semesters nBerlin, ne n Munich, ndthree n Strassburg. During his last two semesters, e worked ntensively ithProfessor an Calker under whomhe wrote his dissertation.

Schmitt assedhisfirst aw examination Referendar) n 1910 ndbeganworking sa lawclerk.Hesuccessfullyompleted is econd nd final aw examination Assessor)in 1915. In February f that year, he volunteered or the nfantry. s a university

graduatend

particularlys a

lawyer,chmitt

oinedan elite

groupwithinGerman

societywhom Fritz Ringer alls the Mandarins. 3 heywere onvinced f their wnsuperiority, enerally conservative,nationalistic, ess particularistic han othersegments f hepopulation, nd satisfied ith he tatus uo.Thegroupwascomposedprimarily f higher-level overnment ureaucrats,udges, university rofessors, ndhigher econdary chool eachers. The Mandarins iewed hemselvess the ource fstability n a changingworld.

TheGermany ntowhich chmittwas bornwas a state ntransition. t wasrelativelynewly nified nd industrialized. he speedwithwhich hanges ad taken lacewithinGerman societyexacted a substantial psychological oll. The government as aconstitutional onarchy, ut, rue o Bismarck's esigns,much f he powerhadbeenleft o the Kaiser.TheChancellor nd the Cabinetwereresponsible ohim ather hanto the legislature. he legislature onsistedof two houses; the Reichstag LowerHouse)and the Bundesrat Upper House).TheLower House waselected yuniversalmanhood suffrage nd was the focal point of popular government. owever, tsauthority aslimited y heprerogatives f heUpperHouse,whichwas chosen y hestates nd dominated y he rchconservative russian tate overnment lected y hethree-class ystem. n an effort osatisfy heobjections f the outhern erman tatesto unification, ismarck ad left o muchpower n the hands of the states hat hey,too, were ble to thwart he efforts f the Reichstag.

The Kaiser ould have merged s both he ontrolling orcenthegovernment nd asymbol f nationalunity. n an effort o concentrate ower n the hands of his owncircle, he forced Bismarckfrom office nd then did the same to his independent-minded uccessorGeneralCaprivi.4However, he Kaiser

provedo be indecisivend

unableto assert ynamic eadership. lthough e wished o be lovedbyhispeople,henever became a popular leader. The Neuteutonia group of young aristocrats,depicted o effectively yHeinrichMann,admired heKaiser s a hero but wasnever



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ROOTSOF TOTALITARIANAW 135

more han small egment f the population. Wilhelm's haracter nd his onduct sa leader ost himthe upport f mostof the Germanpeople.A brief escription y

contemporaryistorian

learlyvidences his lienation: His

lifelongmmaturity as

markedby an almost childish ove of drama and bombast.Hisdecisionswereoftenimpulsive, nd hiscraving obe admired nd to occupy place ntheforefront f thepolitical tage knewno bounds.As evidencednthe utobiography e wrote bout hisdynasty, e said he ran the Reich almost singlehandedly. . . Ignorant of theconstitution, ethought e had the powerto command hePrinces f the Reich ndevento levy axes without he consent f the Reichstag.That isthe rouble,' e oncesaid, my ubjects hould imply o what tell hem ut they lways want o think orthemselves nd the difficulties rise from hat.' 6

The Kaiser's actions n sending heKrugerTelegram, n the Sabern affair, n thePanther's eap, and in the Daily Telegraph nterview ll contributed othe Germanpeople'sconclusion hat heKaiser was arbitrary nd unresponsive othe will of thepeople.Bernhardvon Blow gave amusing nsight nto the attitude f the peopletoward heir uler: All Berlin aughedoverthe tory f how n the FriedrichstrasseHungarianwho, ikemany f his countrymen sed to mixup hisarticles, ent p to apoliceman nd meaning o say, Where s the Brandenburg ate?' das Tor) actuallyasked, Where s the Brandenburg ool?' der Tor) to which the honest policemanreplied,If you makefun f hismajesty gain 'll run you n.D'you getme? 7Billow'spersonal omments bout the Kaiseradd to the picture: He wasno fool,but he oftenlived n a fool'sparadise. often eared or his mental balance, nd one of the chiefreasons, hough ot he most mportant f ll, formy teadymaintenance f policy fpeacefor Germanywas the conviction hat unlikehis father nd grandfather nd stillmoreunlike he Great Frederick,William I wasnot mentally quipped to stand he

heavyvicissitudes nd ordeals of a great war. 8TheReichstag,whichwas limited ythe Bundesrat, he tate governments, nd theKaiser, was in itself ivided and uninspiring. he greatest ope for a progressivelegislative ody would have been found n a coalitionbetween iberal nd socialistdeputies.However, s Vernon Lidtkestates, The mutual solation of the two mostprogressive lementsnGerman ociety ermitted he onservative ristocrats o retainpolitical nfluence ar beyond their ppropriate ime. 9The lack of union betweenthese two elements was more than a communications roblem.The liberalswereunsympathetic o the demands of the ower lasses and werebasically ommitted ofree rade, aissez-faireapitalism. ven the progressive ing f the iberal movement(Freisinnige der Fortschrittspartei) ould not reach an accommodationwith hesocialists. he liberal dvocacyofaggressive ationalism nd anti-Semitismouldnotbe reconciled ith ocialist nternationalism, hichwas at east he heoretical asis forthe Social DemocraticParty. Transcending ll issues,however,wasthe disdainwithwhichmanymiddle-class ermans who were members f the iberal arties egardedthe ower lasses.

Thepolitical nclinations f ome middle-class ermans werenot the only actor nlimiting he ffectiveness f he iberal arties nd, therefore, f he Reichstag. he ackof political involvement y many members of the middle class also served todisenfranchise heonegroup within ocietywhichmight ave beenable to influencethe balance of power.ArnoldBrecht nd Franz Schoenberner ave characterized hissituation. recht rgued: That manymiddle-class ermans wanted nd were ble toleadnonpolitical iveswasnot dueto their ack of political ower nd education lone.

Intellectually minent eople, in particular he Goethe-Germans,'ived under the

exalteddelusion hat t was not becoming or hem o meddle npolitics, hat he ntirepolitical umult elonged o a lower evel, hat t was better o be concerned withwhatwas essential. 10 his orientation asparticularly cute amongall the ntelligentsia.



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136 SOCIAL CIENCEOR SUMMER981

Franz Schoenberner xplained: The intellectualmiddle lass which n 1848had stoodtogether with the workers n the barricades had more and more retired rom hestruggle orpoliticalfreedom nto the higher ealm'of spiritual reedom.Makingvirtue ut of a weakness, heGerman ntelligentsia adescaped nto he vory ower,lookingdown with ffected ndifference n thevulgar phere f politics, ncluding heofficial egime. 11

Without n alliance between iberals nd socialists nd with ignificant iddle-classwithdrawal rom olitics, he onservatives ere ble to block popularpolitical ction.The other majornonaristocratic orce ntheReichstag, heCatholicCenter arty, wastoo divided deologicallyopropel he egislaturen progressive irection. vacuumof responsive overnment as created nto which he udiciary merged s the onlyvigorous and decisive civil agent. With an unpopular Kaiser and a divided andineffective eichstag, he udgefoundhimself na uniqueposition: e was the gent fgovernment ost n touch with herealities f German ife. chmits discussions n

the nature f aw and the roleof the udgeevolvedndirect elation o these onditionsand to the vigorous egal-theoretical limate n Germany n the era before heFirstWorld War.

As Emersonhas shown, the revival of legalphilosophywas the most mportantintellectual evelopment n Germany n the period from 1890 to 1914. 2Variousschoolscompetedfor domination f the discipline f egal theory. egal positivistsstruggled gainst egal sociologistswhoarguedwithneo-Kantians nd neo-Hegelianswho debated free-law dvocates nd natural-law roselytizers. he climate f opinionand the mportant ssues an be defined ybriefly xploring he deasof someof hesegroups.

The positivists onstituted ne of the most mportant f these chools of thought.Positivism

ejectedll

hypotheticalonstructs n

philosophy, istory,nd science. t

confined tself o empirical bservation nd connection f facts nder he guidance fmethodsused in the natural ciences.Positivism ook two forms: ne basedon ananalytical oint of view ndependent f the ocial and economic values of the ociety,the other ased on studies f precisely hese alues of thegiven ociety. he analyticalapproach to legal positivismwas represented y the deas of the Englishman ohnAustin and the Vienna Circle, ncludingMoritz Schlick,Rudolph Carnap, and theyounger ans Kelsen.Kelsen atermoved oGermany nthe 1920's ndbecame ne ofSchmitsmajor rivals.

Austin, chlick,Carnap, and Kelsen each dealt with arious factors ncorporatedinto analytical ositivism. he positivism f the Vienna Circle rejected ll dogmaticand speculative ssertions n philosophy. hey believed hat the great philosophersweremetaphysiciansnd purveyors f nonsense. heydenounced thical mperativesas mere jaculations r emotive tterances hichwere ognitively orthless. 3Austin,whose work was widelyread in Germany, onsidered aw as a command of asovereign, nd declared hat, onlygeneral ommands, bliging person r personsto acts or forbearances f a class,merited he attribute f law. 14 Thesecommandswere ransmitted ythe udgewho was the rue ractitioner f positive awbecauseheregularly aced herealities f egal ife nd was pragmatic nhis pproach.Thepart fthe positivist doctrine dealing with general commands was translated nto legalnormativism, articularly y Hans Kelsen. Schmitt otallyrejected his aspect ofpositivism lthoughhe recognized he mportance f the udge, a conceptwhichwascentral o much of positivist octrine.

Kelsen's heories tand out n ignificance ecausehe was closeto Schmitt n geandtraining nd yet ater opposedhim vehemently n legaltheory, olitical heory, ndpolitical ctivity. elsen did not rejectphilosophy utright ecause he was stronglyinfluenced y Kant. Some historians ven consider him to be a neo-Kantian. 5



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ROOTSOFTOTALITARIANAW 137

However, he did differentiate etween the science of law and philosophy. Heendeavored o divest he cience f aw of ll elements hich e abelleddeologicalndirrational. elsen tried o create a pure theory f law which sked the question:What s law? 16 his theory id not concern tself withmorality r ethics ut dealt

onlywith aw as it existed.Kelsen eparated aw from ociology s well s psychologyby laiming hat he purpose f urisprudence as the omprehension fnorms, ot heexplanation of the real existing world which was the concern of sociology.Jurisprudence as the knowledgeof norms defining orm as a hypotheticaljudgmentwhich eclares hat he doingornon-doing f specifiedct willbe followedby a coercivemeasureof the state. 17 As a Kantian, Kelsen believed hat aw wasunconditional nd universal.Allnormswentbackultimately o a basicnorm.Kelsenargued hat ommandswerenot bindingmerely ecauseofthe fact f their xistence,but because they were derived, onceptually t least, from higher norm whichestablished hefact hat he ommand hould beobeyed. 8 hishigher orm ould be a

constitution. uring the Weimar period, Schmitt hallengedKelsen's notion of aconstitution s the basis for ll norms.Another urist dentified s a neo-Kantianwho was not a positivist ut exerted

great nfluence n his age and on Carl Schmitt was Rudolph Stammler. tammlertaught hat aw was the one universal hread n human hought. e argued hat hereexisted n the human mind pure forms f thinking whichgave man the ability ocomprehend he idea of law separatedfrom, nd independent f, the concrete ndchangeablemanifestationsnwhich aw has appeared t various imes.Healso claimedthat law s the nviolable nd autocratic ollectivewill. 9 he ideaof collective illbecame widely iscussed oncept n the early 0th entury n Germany. tammler,Kelsen, nd the sociologistMax Weber debated t, and it played role n Schmits

earlyworks.

As hewrestled ith heproblems fdefining hebasisof aw,Schmitt rew ponthedefinitions iven y the dvocates f egal ociology nd their iews n the riteria orjudicialdecision. o these cholars, awwas a product f he unique ivilization reatedby achgroup fpeople.JosephKohler,who swidely uoted nSchmits arlyworks,believed hat human ctivity as to create nd develop ulture, o obtainpermanentcultural alues,thus producing new abundance of forms which hall be a secondcreation n uxtaposition odivine reation. 20 e argued hat ach form f ivilizationhad to find he aw which est uited ts ims and purposes.These valuesweregeneraland applicable hroughout hat ociety. chmitt onsidered hese oncepts nhisfirstworkwhichwas a discussion f the nature f guilt.

Other egal sociologists valuated he ims and purposes f ociety tilizing riteriawhichwere not general.These scholars, uch as Philip Week, Heinrich toll, andRudolphMller, epresentedhe jurisprudence f nterests chool. They tressed hevarying nterests f groupswithin he ociety s represented y the egislator.Mllerclaimed hat: In order o arrive t a ust decision he udgesmust scertain he nterestswhich the legislator ntended o protect by a particular tationary ule.Amongconflictingnterests hatwhich s favored nd preferred y he aw tself hould be heldto prevail. 21

The questions f the motivation f the egislator nd the nature f a just decisionwerebasic to Schmits arly work. The insights erived rom hese nvestigations,added to those concerning uilt and the relationship f the ndividual o the state,served s the springboard ot onlyfor Schmits ater work but also for much egal

thought hroughout urope.His doctoral dissertationwashis first

resentationf

these ssues.berSchuldund Schuldarten Eine terminologische ntersuchung, resented n

1910,was Schmits nitial ttempt o examinethe nature f guilt nd to define ts



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138 SOCIALCIENCE OR SUMMER981

various orms. t wasprimarily survey f the xistingwork nthe fieldwith criticalanalysis f these works ather han n original reative tatement. owever, tdidraisesome

questionswhich re fundamental o the

egalystems f ll societies.Adiscussion

of Vorsatz intent) nd Nchlssigkeitneglect) onstituted central heme nthe tudyand was interwoven nto general onsideration f the nature f guilt, tsdefinition,and its relation o criminal rosecution nd punishment y he tate.Amanwasguiltyof a crime, ccording oSchmitt, fheeither erformed criminal ct, s indicated ythe aw,with ntent r failed o perform required ct.22Thedefining f ntent nd tsdetermination resented formidable roblem.

Schmitt tarted isdiscussion f ntent yciting he heories f he egal ociologist,Radbruch,who claimed that guilt nd particularly ntentwerepurely sychologicaland onlypsychological riteria ould determine uilt. chmitt eclared hat guilt orthe urist wasnot psychological r, for hat matter, hilosophical r religious: t wasprimarily olitical.As Stammler ad argued, man was guilty fheacted n way hatwas inconsistent ith he goalsof the tate nd the purposes f he ollective ill.Guiltstood nrelation o thepurposes f he ollective ntity, he tate. Referring o theworkof hismentor, an Calker,Schmitt tated hat, the criminal urist ould not ntruthuse words ikegoodorbad,right r wrong. 23 he udgecoulddecideonlywhether heman acted n a waythat wasconsistent r inconsistent ith he purposes f the tate.Actionswhichwere nconsistent ith politicalpurposeswereevidence f what vanCalker called bse Willen Schmitt dded that hiswas not bad in the moral ensebut rather oncooperation, lienation, r hostility. chmitt efended he premise fthe positivists hat morals nd ethicswerenot relevant o the urist. Theyweretheprovince f theology.

The extent f guiltwas determined y the value to the tate f the person r object

damagedbyn individual's ction. chmitt as

heavilynfluenced

yhismentor hen

hestated: The value of theprotected bject,however, s van Calkerhassaid,must edetermined irectly y the constitutive ignificance f ts role n the tate's purposes.That s asfar s it the ignificancef he bject] oncerns he urist.Naturally tfollowsthat the more valuablethe objectto be protected, hegreater hedamagecausedbydivergence etween he ndividual nd the tate's purposes, herefore, hegreater heguilt. 24

Thenature f guiltwasdirectly elated o the nature f the tate nd changed s itsgoals changed. Therefore, or Schmitt, guilt under the Weimar Republic, andparticularly nder he ThirdReich, ould be fundamentally ifferent romwhat t hadbeenunder he Wilhelminemonarchy. he idea of relative uilt vident n Schmitt'searliestwork provided him with a theoretical asis for the role that he played nchanging he udicial system o fit he views of Adolph Hitler n the 1930's.Once an individual ommitted n act nconsistent ith hepurposes f he tate, hequestion f ntent r neglect ad to be addressed. chmitt iscussed hework f uristssuchas Kohlrauschwho claimed that no distinction etween ntent nd neglectwaspermissible. uilt nd punishment adto be based purely n the ct Tat).Kohlrauscharguedthat t was not possible odistinguish etween ntent nd neglect ecausethatrequired nsight nto he mind f he perpetrator t themoment f he ction, n insightimpossibleto achieve.25Any attempt o distinguish etween these two factorsnecessitated discussion of unconscious ntent xhibited s neglect and raisedproblemswhich jurist ould not solve.

Schmittwas sympathetic o this position, nd he becamemore so later on in hiscareer. However, n 1910,he was still

tronglynder he nfluence f van

Calker,who

didnot cceptthis rgument. an Calker rgued hat lthough he ct was mportant,intentmade an act qualitatively ifferent nd, n aw, uchdifferences ere mportant.Acts committed ecause of neglect were indeed guilt-producing nd punishable.



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However,human considerations equired jurist to make decisions nd to punishpeoplewhoseguilt esulted rom neglect essseverely hanthosewhoseguilt esultedfrom ntent. 6The ultimate riterion ordistinguishing etweenntent nd neglect asthe subjective udgment of the udge. In ber Schuld und Schuldarten Schmittacceptedvan Calker's rgument s a practicalnecessity onsistent ith hedominantthinking f the time but showed himself far more disposed theoretically oKohlrausch's rgument. he distinction etween ntent nd neglectwasparticularlyimportant ithin system f valueswhich tressed ndividualismnd humanneeds.These were onsiderations hich chmitt id not valuehighly nd which heexplicitlyrejected n his later writings.

While still t Strassburg, chmitt roduced his second major work, GesetzundUrteil Eine Untersuchung um Problemder Rechtspraxis. his work wasa morecreative ndeavor than his sponsoreddissertation. t made few references o thethinking f others nd clearly aunched chmitt s an independent cholar. n Gesetzund Urteil, e addressedhimself o the fundamental uestion: When is a judicialdecisionust? 27 his questionwas being nswered n manywaysby contemporarylegal heorists, ut, n thiswork, chmitt sed the word just nthepostivistic ense facceptable ather han n a religious r philosophical ense.Here, s inall hisearly

works, eattempted oseparate aw from heologynd philosophy nd to concentrateon the ssues of thenature f aw,the nature f ustice, nd the ole nd function f hejudge. n the processofclarifying isquestion, chmitt rgued hat: Noattempt illbe made to answer hequestion of the existence] f the bsolute imelessustice fdecisionwhichwouldbe derived rom he idea' of ust decision. hisprobably asnopractical ignificance nyway. 28

Schmits ostivist pproach narrowed isfocus o an evaluation f he ustness f

judicialdecision n the mmediate ituation f

Germanyn 1912.He did not address

himself oarguments bout the xistence f nnate deasof aw and ustice.He madenoattempt osetup as absolute he riteria edeveloped.Becausethe udgewas n verycrucialposition withinGermany n 1912,he was the key to Schmits nswer. Heconcluded hat: Ajudicialdecision s ust today f nother udgewould havedecidedsimilarly. nother udgesignifiesnthis ontext he mpirical ype f modern egally-trained urist. 29

There are several complex deas involved n this tatement. he most mportantamong hem oncern he ignificance f the aw under his riterion nd the mount ffreedom iven to the individual udge in making decision.Schmitt onsideredtheoretical ritings n the field nd conditions f ontemporary egalpractice oarriveat his conclusions. However,while n the earlier berSchuldund Schuldarten epainstakingly resented he many differences n the ideas of the principal egaltheorists, ycontrast n Gesetzund Urteil e simplifiedndgeneralized heir deasto agreat xtent.He even laimed hat egal heorists s a grouphadoneconcept f he oleofwritten aw njudicialdecisions, nd that his oncept iffered rom heoneheldbylegalpractitioners. e characterized odernudicialtheory y laiming hat t sees tsauthoritative rinciple n the willof the egislator r the will of the aw and thereforeanswers he uestion f the ustness f a decision husly: udicial decisions ust f t sprovided or n thepositive awbythe egislator; f t s so decided s the uthoritativelegislative ody would have decided t if the case could have beenpredicted. 30ncontrast, egal practitioners asedtheir ecisions primarily n how the other udgewould have acted in the particular ase.

There re severalpoints

both stated ndimplied

n this distinction. he first sthedifference etween egaltheory nd legal practice. One of Schmitsmost effectivecritical eapons nhis ater ttack n iberal-parliamentaryemocracy ashis nalysisof the radical inconsistency etweenoutdated theory nd contemporary ractice.



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140 SOCIAL CIENCEOR SUMMER981

During the Weimar years, he argued that practitioners ere not aware that theirpractices ften iverged ubstantially romwhat hey onsidered o be their oundation

principles.e

chargedhat

egal practitionersere ften lind o the differences hat

existed nd spoke as though practice nd theorywereconsistent. n 1912,Schmittvaluedpractice bovetheory nd declared, it s fortunate hat hemethod f practiceis better han what practice onsiders ts method. 31

A specific xample, uch s therelationship etween ormative ule nd the pecificcase,clarifies his distinction: Legalpractice s in tsconception omething ifferentfrom egaltheory nan important ense.The atter trives or n endless hain, systemof norms which cannot be contradictedwhile egal practice oncentrates ll of itsinterest logically nd psychologically)n finding he ust decisionfor he concretecase. The results of the scientific se of legal materials re to it only means. 32Therefore, he judge was always concerned with the individual case. Schmitsmaximizing f the mportance f the ndividual ase and his minimizing f he valueofnormative ules were a position he sustained n all his later work. This doctrine fsovereignty r decisionism lacedhim squarely n opposition o the theorists hostressed the importance f norms, most particularly ans Kelsen. Significantly,Schmitt ad already aken hisnegative ttitude oward heusefulness f norms nthestable nd relatively eaceful eriodbefore heFirstWorldWar. Thisperiod tood nsharp contrast o the chaoticwarand postwar ras, whenhe ntensified is ttack nnormative ules by charging hat onstantly hanging risis ituations otally egatedthe significance f norms.

Even n 1912,however, chmitt bserved hat he mphasis n total onformity iththe law ( Gesetzmssigkeit had been abandoned by most contemporary egalpractitioners.33 he rejection f Gesetzmssigkeit ndermined he belief ommon

among jurisprudencef interests heorists hat he criterion or decision was

thewillof the egislator. 4 chmitt alled this belief an interpretive iction nd claimedthat t wasmerely n excusefor levating hepersonal nterest f the urist o the evelof law.35 n rejecting his concept, Schmitt eflected he influence f the Frenchphilosopher enri Bergsonwhoseworkswerewidely eadbyEuropean tudents ntheprewarperiod.36n a statement eminiscent f Bergson, chmitt eclared hat, Nomatter what the egislatorwouldhavedecided,he has not decided in the ndividualcase]. 37Therefore, ithout ecoming he egislator, twas mpossible oreproduce isdecision.A stated ntent o do so was, n Schmits stimation,merely n excuseforindividual nterpretation. n this tatement, chmits ater ttack n the iberal dea ofrule by law, or Rechtsstaat can be seen in its embryonic orm.After he war, hecharged that the liberal claim to represent government f laws rather han agovernment f men was a smoke creen o advancethe iberals' wn nterests ecauselaws were made by men and interpreted y other men who could never exactlyreproduce heir riginal ntent. 8 chmits ejection f Gesetzmssigkeit asfurtherevidence f his growing kepticism bout the possibility f ajudgedeciding pon theintent f lawbreaker s required yvan Calkes doctrine. he udgewouldhavehadto become he awbreaker t the moment f he deed norder o know whathe ntendedto do.

Although he will of the legislator ould not be known, he udge coulduse thewritten aw as a guide. Thus, Schmitt maintained place for positive aw in thedecision-making rocess.His rejection f Gesetzmssigkeitid not totally brogatethe need for positive aw: It is a conventionalmisunderstanding hat makesmanyafraid hat ince the

udgewas no

longer ctingn strict

onformityith he awhe

would ct completely ubjectively. t no stage nthedecision-makingrocessmay hejudgemake n absolutelyndependentudgment asedonhisparticular ubjectivity rhis personal onviction. 39



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In 1912, chmitt id not acceptthe dea of the udge abandoning ositive aw andcreatingudge-made aw based on cultural r social criteria s suggestednthewritingsof

JosephKohler. 0 n the

1930's,chmitt id abandon

positiveaw

entirelynfavor f

the will of a living awgiver, Adolph Hitler.41Schmits criteria or decision making an be comprehendedmost clearly n his

definition f the other udge. The other udge was the normally-trainedudgeusing hewordnormal n this ontext na quantitative ross-sectionalense,not s thedesignation f an ideal type nd not in a qualitative eleological ense. 42 he otherjudge was the typicalproduct of German egal training nd, more mportantly, fGerman egal practice. chmitt eganhis discussion f usticeby defining he otherjudge as the riterion or ust decision nGermany n 1912.The use of positiveawbythe individual udge constituted he uridical part of his decision. He could notabandonpositive awbecausewithout t the question f how the other udge wouldhave decided became too unpredictable.

Although sing positive aw,the udgehad to go beyond t n the formulation f hisdecision.He wasrequired o be aware of the onstantly hanging conomic nd socialconditions f the ociety.Here,Schmitt cknowledgedhedoctrines fKohler nd thelegalsociologists. ven in the relatively ranquil eriod before he First World War,Schmitt elieved hat ocietywaschanging uickly nough hat udicialpractice ad tobedynamic ather han tatic. Within few years, hepaceofchangewithin ermansociety acceleratedrapidly. Under these conditions, chmitt tressed ven morestrongly he mportance f dynamic egal process ensitive ochange.His world iewresembled he picture of the universe describedby the pre-Socratic hilosopherHeraclitusnwhich hangewas the only onstant. n a society nflux, udgewas ableto deviate rom arlier pinions o thedegree hathe believed hat hanging onditions

justified hisdeviation. hanging conomic nd social conditions lteredhe

generalwill nd the purposes f the tate. ndividualbehavior nd udicialdecisionshad tochange ccordingly. owever,when judge brokewithpast precedent, e had to besure hat he other udge wouldunderstand is reasons or oing oandcoulduse hisdecision s a basis for future udgments.

The emergence f udge-made aw as a significant henomenon n Germanywasnoted by Max Weber.43He spoke in terms imilar o those used by Schmitt f thelandmark udicialdecisionswhich ook on a significance eyond hat f he ndividualcase. Theseudicialacts contrasted harply ith he neffective esponsesf he Kaiser,the Reichstag, nd the Landtageto changing conomic nd social conditions. hus,the udiciarywasmoreresponsive ochanging onditions,more o than other rgansof government nd more so than egaltheorists.

Schmitt pplaudedthe udicial situation n Germany n 1912. He approvedof theidea that just decisionwasdesigned o convince he other udge. Thisconceptwas arather ristocratic eflection f a mandarin belief n the superiority nd directivemission f the educatedelite. t was even more restrictive ecauseonly the egallyeducated lite who had been through working pprenticeship ouldunderstand ndappovea legaldecision.Thissituationwas criticized yproponents f other iews nthe appropriate riterion or legaldecision.Theorists, uchas the youngHermannHellerwho became one of Schmits major rivals, dvocated beliefwhich ould betraced back to the 18th century nglish utilitarian hilosopherJeremy entham.Bentham rgued hat he understanding f aw and udicialdecisions houldnotbe theprerogative f one professional lass but should be made understandable o everyrational nd educated man.44 he

conceptf the other

udgewas also

veryifferent

from he standard stablished n severalof the progressivelyontrolled tates f theUnited tates. n these tates,where udicialdecisionswere ubject o referendum ndjudgeswere ubject orecall, ecisionshad to be understandable nd convincingo the



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142 SOCIALCIENCE OR SUMMER981

majority f the electorate. However, n Germany n 1912, he other udge was thecriterion which determinedwhether judicial decisionwas just. It provided hefreedom nd the imitation f the particular udge.Schmittmaintained isconvictionfavoring he other udge during heWeimaryearswhen udgesformed statewithina state ommitted o a Germangovernment hichdid not exist nd opposedto thatgovernment hich id. He abandoned that tandard nthe 1930's nd workedwith heNational Socialists to create new set of standards or udicialdecisions.

Contemporary egalpractice, f such vital nterest oSchmitt n Gesetz nd Urteilbecamea secondary onsideration n histhird majorwork,Der Wert es Staatesunddie Bedeutungdes Einzelnen. t was Schmits last significant re-World War Istatement. t is the mostdifficult f ll Schmitswritings. he Germanic hilosophicalprose fmany f ts ections tands nsharp ontrast o the osmopolitanismnd directprose of his later works. Der Wert des Staates dealt with philosophical heory.Although hilosophical heorywas not the mphasis f most ofSchmits ater works,there re several easonswhy his tudy s mportant. chmitt tated everal imes hatmetaphysics nderlay ll thought. He also made many observations oth in theintroduction nd body of this work which go far beyond philosophical heory.Furthermore, ntrue o his own stated purpose, Schmitt ealt with he empiricalindividualwhomhe wanted o exclude from his tudy.

Schmitt prefaced this work by characterizing arly 20th century Europeancivilization.Modernman, he claimed, hought hat he was living n an ageof greatindividualism. e stated, The averageman is of the opinionthat his age is a free,skeptical, nd thoroughly ndividualistic ge. In it, ndividualism as generally eendiscovered nd given place of honor while ncient radition nd authority avebeenovercome. 45However, Schmitt argued that, actually, Our age is not anindividualistic

ge. 46The 19th

enturyad beenthe ra of ndividualism.t had been

the ageof aissez-faireconomics nd parliamentary olitics mphasizing herole ofthe utonomous ndividual. iberalism,whichbecame so strong n the 19th entury,was the philosophymost representative f the absolutism f the individual t theexpenseof the group or community. y contrast, chmitt redicted hat the 20thcenturywould be the century f sociology nd statistics, hegroup nd the class. Hecitedrecent evelopments f the machine,massproduction,mass ducation, nd masscommunication s the foundation ponwhich he new gewasbuilt.Heperceived hatthe new social sciences ecognizedhis hange ntheirmethods f statistics, abelling,and categorizing.

Byprefacing isstudywith characterization f the mass nature f contemporarysociety, Schmitt established a framework or stressing he predominance ofsupraindividual ntities. Then he turned to the stated objectiveof his work: atheoretical iscussion of right immutable aw), the state, and the individual.Heperceived he state as a force bove all individuals, force with mission. t wasimportant ot to confuse he tate with particular dministration. he state was aneternal bjectof thought bove the everyday ealities f ife. chmitt ummarized isconceptof the tate nd its relationship o the ndividual: The state s . . theuniquesubjectof the ethosof mmutable aw. It is the entity hichhas a duty oright n animminent ense.Theconcrete ndividual s absorbedbythe tate, nd his duty nd hisauthority re only the reflexes f the tate's orce.The antithesis s that of right ndstate, not of right nd the individual. The Hegelianprecept hat right s the unitybetween uper-personal ule and the individualmust be modified. The modifiedversion states that

positive rights the

unitybetween he

super-personal, uper-empirical ule nd the tate.Theempirical ndividual isappears ntirely. he state sforce nd, therefore, s non-right pposesthe state s right n order o realize t. 47

Thestate,whichwasright n tspositive orm, ealizedtself hrough onflict ith ts



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ROOTSOFTOTALITARIANAW 143

negatedform, which was force. The superpersonal, uperempirical ule ed to thefulfillment f the mission whichwas the realization f right. he Hegeliannature fthis onstruct s

quiteevident.The sense of

mission,which chmitt

nlypostulatedhere,was transformed ater n more pecific nd concrete erms. et the imilarity oHegelianformulation as not complete. chmits 1914concept f he tate ontaineda striking ifference. egelconnected he state with specific dministration hichwas rational, while Schmitt rejected this connection. Significantly, chmitt aterattacked Hegelas one of the defenders f liberal-parliamentaryradition.48

In developing isconceptof the state, chmitt llowed only minor ole for heindividual. he fulfillment f the rational, utonomous ndividual,whichwas a goalfor 19th entury iberals,had no placewithin chmits cheme,which ubsituted hefulfillment f right s its objective. Neither ight or the tate nd n the ndividual;they an find ompletion n no individual, ot even the holiest. 49 chmitt ualifiedthis statement y claiming that the individual ould find religiousfulfillment rpractical ulfillmenthrough veryday olitics. n spite f his uggestion, he ontemptthat chmitt elt or he ndividualwho would not surrender ispersonal mbitions othe ambitions of the greater whole shows through. He stated forcefully hat Thegreatness f man ies n thegreatness f his task. 50With xtreme ynicism, e askedhis reader f he could imagineCaesar,Frederick he Greator Bismarck laiming hatthe driving orce ntheir ives was the harmonious evelopment f their ersonalities.

Thus, Schmitt eft his purely heoretical iscussion nd struck ut at the iberaldoctrine f personal ulfillment. e strengthened isargument y iting egel'swrathtoward riedrich acobi for dvancing n appealfor ersonal ulfillment.1 acobiwasa friend f Goethe and an irrationalist hilosopher. Hegel accusedJacobi ofprostituting imself by invoking such a sentimental tandard. He argued that

individuals ttained ignificance ecause of their osition n the state ndcould

onlyfulfill hemselveshrough he ccomplishment f their ndividual askswhich elatedto the mission f the whole. f an individual ecognized isconnectionwith he wholeand histask,he could dentify ith he tate's urpose. t wasin this ight hat chmittsaw the statement ttributed o Louis XIV, L'tat c'est moi/ If an individualsucceeded, ecouldsympathetically ibrate nharmony ith he tate nd the osmos.Schmitt uotedFichte,whoclaimed hat I could be the highest orm f belief nGodwhen t mergedwith he whole.

The connection f political hilosophy nd theology ecame vident ere lthoughSchmitt efined hem s separate rovinces. y 1922, chmitt adformally onnectedthem n his book of four ssays,PolitischeTheologie:VierKapitalzur Lehre vonderSouvernitt. 2 chmitt ntroduced eligionnanother mportant ay nhis tudy. ebelieved hat he CatholicChurchunderstood herelationship etween n individualand a greaterwhole with mission.The individual riest ained charismaVeritasthrough he mere ranting f hisoffice. he CatholicChurch dvanced hedoctrineof exopera operantis, whereby heholder f he ffice ainedhispower s a part fwhole, nd it was transmitted hrough he ndividual ndependent f hispersonalityand actions.Schmitt lso sawthe doctrine f the popeas the nstrument f Christ nearth n the same light.

Schmits position on leadership nd personality, s presented n Der Wert esStaates, an be comparedwith hat f Max Weber,whoseworkwaswidely eadwhenSchmitt ame of age. There re some clear agreements etween he deas of Schmittand Weber,but there re also somesignificant isagreements hichbring nto focus

someof the problems f Schmits tudy. chmitt ave primary laceto charisma

Veritas stressing he importance f the mission r office which personheldanddeemphasizing heuniquepersonality f the ndividual. Weber, s well, tressed heimportance f the mission or he ignificant ndividual.He declared, The holder f



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144 SOCIAL CIENCE OR SUMMER 981

charisma seizes the task that s adequate for him and demands obedience and afollowing yvirtue f his mission. 53 owever, orWeber here was a natural ensionbetween he laims ofcharisma nd anyofficewhich epresentednstitutional ociety.Thus an antipope ikeLutherwas ikely o be a more decisive xemplar f historicallysignificant harisma han a conventional older of the charisma Veritas of papaloffice. chmitt layeddownthepersonality evelopment f historical igures,uch sFrederick he Great nd Bismarck. ertainly, is riticism nd cynicism it he mark fwe consider personality evelopment n terms f adjustment nd normalcy s theywerebeginning o be defined y henewdiscipline fpsychologynthepre-WorldWarI era. However, Schmitt neglectedwhat Weber stressed: that it is the uniquepersonality eatures f the great historical ndividualwhich ombine withhis missionto make him n effectiveeader f people.Weberdefined harisma s a certain ualityof an individual ersonality yvirtue f which he is set part from rdinarymen ndtreated as if endowed with super-natural, uper-human r at least specificallyexceptional ualities. 54n hiseffort o devaluethe ndividual, chmitt id not reallyconsider the relationship f the individual,unique personality o the concept ofmission nd function.

In his critique f the relationship etween he ndividual nd the state, Schmittattacked ne of thegreat upporting rinciples f iberalism s itwas often pplied.Heargued hatKant'scategoricalmperative as not meant s a practical imitation f heauthority f the tate n ts relationship o tspublic.Whatwas ofparticular oncern oSchmittwas the possible imitation hatKant's ssertion hat ll men be treated s endsmight ave on the dea that he tate had a missionwhichmight equire he acrifice findividuals. e argued hat The Kantianrequirement hat achman lwaysbe an endin himself nd never a means applies only when the prerequisite f autonomy s

fulfilled, nlyfor the man who has become the essence of

purereason not for the

representative f a biologicalspecies. 55Schmitt's rgument s highly uestionable.Kantbelieved hat nlightenment as a

slowprocess nd that only man whohad becomeenlightened ould be autonomousand could become an end in himself.However, he argued that what was reallynecessary or nlightenment as man's iberation rom self-incurred utelage, ndthat t was within his power to become autonomous f he had the courageto freehimself. here s no indication n Kant's heory hat he oncrete ndividualwas barredfrom aking his tep.Moreover,Kantstressed hat he tate had been major bstacleto man's utonomy nd called for hange.Thus, he mphasis fSchmitt's rgument santithetical o Kant's principles. t this arly tage n hiscareer, chmittwasalreadyattacking the liberal principle which stressed he predominance f autonomousindividuals nd positing he ignificance f statewith mission.He was alsoguilty fnot heeding isownwarning nd confusing he heoretical nd the oncrete ndividual.

Schmitt's arly theoretical ositionswerecrystallized y the traumas f war andsurrender. He emerged in Weimar society as a dedicated enemy of liberalparliamentary emocracy.He leanedtowardrenegadeCatholicpolitical igures uchas FranzvonPapen.However, otalitarian onvictions ameto thefore.Hesupportedthe NationalSocialists nd allowed their alues to become the criterion or uilt, hewillof the Fhrer o become hebasis for ust decision, nd the nsignificantoncreteindividual o be swallowed ythe tate.The seedsof these ositions adbeenplantedin his earlyworks.

NOTES1 arl chmitt, ieTheorieesPartisan, unich:unckerndHumblot,963.2dem, ber chuld nd chuldarten,reslau:chletter'scheuchandlung,910; esetzndUrteil,Berlin:iebmann,912;erWert es taatesnd ieBedeutunges inzelman,bingen:ohr, 914.



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3 ritz inger, he eclinef heGerman andarins,ambridge,assachusetts:arvard niversityPress, 969.

4J.Rhl, ermany ithoutismarck,ondon:atsford,967.5Heinrichann, erUntertan,amburg:lassen,964.6Koppelinson, odern ermany,ew ork:Macmillan,954,.454.7BernhardonBulow, emoirsfPrinceon iilow,oston:ittle, rown,931,.59.

%Ibid.,.66.9Vernonidtke, heOutlawedarty, altimore:ohns opkinsniversityress, 967,.15.10 rnoldrecht,he oliticalducationfArnoldrecht,rinceton:rincetonniversityress,970,

p.40.11ranz choenberner,onfessionsf Europeanntellectual,ew ork: ollier,946,.60.12 upertmerson,tate nd overeigntynModernermany,ondon:xford niversityress,928.13 axwellodenheimer,urisprudence,ambridge,assachusetts:arvardniversityress,962,.91.

Ibid., .95.15udolf etall, ansKelsen,ienna:euticke,969.16 ansKelsen, auptproblemeerStaatsrechtslehrerntwickeltusderLehre omRechtssatze,Tbingen:ohr, 910.Ibid., .13.

l*Ibid.,.33.19Bodenheimer,p.cit., .127.20Joseph ohler, ber ie nterpretationonGesetzen,erlin: runheitseitschrift,886,.41.2'Bodenheimer,p.cit., .108.22Schmitt,ber chuld nd chuldarten,p.cit., . 1.2Ubid.,.64.2*bid.. . 73.25bid., .80.^lbid., .92.27Schmitt,esetzndUrteil,p.cit., .1.Ibid.,.2.29bid., .71.30bid., .22.^lbid., .43.12bid., . 58.33bid., .62.^ioia.,p.4.v bid.36 enri ergson,imend reeWill,ondon:llenndUnwin,921,p. 83-185;reativevolution,

London: acmillan,911,.7.37Schmitt,p.cit., .44.Ibid.,.42.39bid.40Kohler,p.cit.41arl chmitt,Der hrerchtztasRecht, eutsche-Juristeneitung,0Jahrgang,eft 9, 935,

pp.1133-1135.42Schmitt,p.cit., .44.43MaxRheinstein,ditornd ranslator,axWebernLawnd conomy,ambridge,assachusetts:

Harvardniversityress, 954, .73.44Jeremyentham,heTheoryfLegislation,ew ork: arcourtrace, 931, .139.45Schmitt,er Wert es taates,p.cit., . .^lbid., . .47bid., p. 5-86.4SIdem,taat, ewegungndVolk, amburg:anseatischeerlagsanstalt,933.49dem, er Wert es taates,p.cit., .52.bid., .90.51bid.52dem, olitischeheologie,unich:unckerndHumblot,922.53MaxWeber, axWeber,hicago:niversityfChicagoress, 968,.20.^Ibid., .23.

Schmitt, er Wert es taates,p.cit., .29.

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